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NJDEP Required to Implement Some Portions of Governor Murphy’s Environmental Justice Law Immediately

On September 22, 2021, NJDEP Commissioner Shawn LaTourette issued Administrative Order No. 2021-25, requiring the Department to apply environmental justice standards to permit applications. While the Environmental Justice Law, signed by Governor Murphy in September 2020, cannot yet be fully implemented, this Administrative Order applies environmental justice requirements while we wait for the DEP to issue regulations implementing the EJ Law.

Under Governor Murphy’s Environmental Justice Law, the first of its kind in the nation, the DEP is empowered to deny or condition permits for certain polluting facilities that would contribute to environmental and public health problems disproportionately impacting low-income communities and communities of color, known as overburdened communities. The DEP is currently developing regulations, which they plan to propose in Fall 2021. The DEP cannot exercise the full extent of its authority under the statute until these regulations are promulgated. In the meantime, Commissioner LaTourette’s Administrative Order states there is “an immediate need” to act to further the purposes of the statute.

The Administrative Order, effective immediately, allows the DEP, within its discretion, to require more analysis and special conditions for facility permits when they consider it necessary to protect the environment or public health. Specifically, where a facility applies for a permit in an overburdened community, the Order expands all public comment periods to at least 60 days, with 30 days’ extension on written request of a community member. It also requires public hearings to be consistent with the Environmental Justice Law and maximize participation, and mandates applicants to respond to and address individuals’ concerns during the public comment process. As a catchall, the Order allows the DEP to apply special conditions to avoid or minimize harm to overburdened communities “to the maximum extent allowable by law.”

This Order shows that the DEP is serious about implementation of the Environmental Justice Law as soon as possible. The disparate impacts of the flooding from Hurricane Ida show only one example of why the DEP would want to speed up environmental justice measures, as low-income communities, communities of color and Black communities tended to experience more flooding and economic loss as a whole.

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