New Jersey Strives to Address Cumulative Impacts of Pollution in Environmental Justice Legislation | Article

In March, the Environmental Justice for All Act (S.872) was reintroduced to the U.S. House and Senate by Rep. Raúl M. Grijalva (D-Ariz.), Rep. A. Donald McEachin (D-Va.), and Sen. Tammy Duckworth (D-Ill.) and marks a major step forward for federal actions on environmental justice policy.

The bill would enhance existing legislation such as the Clean Water Act and the Clean Air Act by incorporating cumulative impacts into permitting decisions. S.872 defines cumulative impacts as the disproportionate exposure of a community to public health or environmental hazards from one or multiple facilities including power plants, recycling facilities, sewage plants, incinerators, landfills, and others. Understanding cumulative impacts can give regulators a holistic view of all environmental and health risks already facing certain communities so these issues can be more effectively addressed.

As Congress continues to prioritize justice in its approach to environmental policy, the federal government could look to states like New Jersey that are leading on addressing cumulative impacts.

Image Credit: New Jersey Department of Environmental Protection

New Jersey garnered national attention last September after the state passed a groundbreaking environmental justice law (S.232/A.2212) . S.232 stipulates that the New Jersey Department of Environmental Protection (DEP) assess the public health and environmental risks that facilities renewing or expanding licensing permits create for overburdened communities, which are defined as low-income communities, minority communities, or communities with limited English proficiency.

“If you're seeking to site a new facility—one of the ones that's in the bill—it’s going to be subject to environmental justice regulations,” says Sean Moriarty, chief advisor for regulatory affairs at the DEP.

Permit expansions will also be subject to cumulative impact assessments, signaling an important shift from the DEP’s previously limited ability to regulate the aggregate risks posed by multiple facilities to overburdened communities.

In this sense, “S.232 is reflective of the fact that [New Jersey’s] environmental regulations, even when we permit them and enforce them to the greatest extent we can, are not sufficient to protect individuals in these communities because of the abundance of facilities,” Moriarty said. “So it’s the abundance of facilities themselves that creates the disproportionate impact.”

S.232 is the fruit of years of organizing and advocacy around environmental justice, a movement with origins in the Civil Rights campaign. Maria Lopez-Nuñez, deputy director of organizing and advocacy at the non-profit Ironbound Community Corporation, noted that advocacy for environmental justice in her community has been a decades-long struggle.

“[The non-profit], as a community-based organization, has a long history of fighting industry, but it’s always one by one,” Lopez-Nuñez said, highlighting the shortcomings of previous regulatory legislation in addressing cumulative impacts. When all previous regulations failed to observe cumulative impacts on a community, residents had no other choice but to bear witness to the injustices around them.

Lopez-Nuñez’s work focuses on the Ironbound, a predominantly low-income neighborhood in Newark that spans only four square miles. Though small, the community has experienced an overwhelming host of environmental and public health challenges. The Ironbound is flanked by a toxic combination of industrial and residential land use, including an airport, highways, rail lines, and a heavily polluted waterway, the Passaic River. To add fuel to fire, the neighborhood is home to power plants, factories, an enormous garbage incinerator, and a former Agent Orange dioxin factory—one of 114 Superfund sites across the state.

The Ironbound’s story, albeit distressing, is not the only environmental injustice occurring in New Jersey, which has the most Superfund sites in the United States.

In January of this year, the DEP published a list of overburdened communities to its website and notified the 331 municipalities—59 percent of the municipalities in the state—to which these communities belong.

The DEP also created the Environmental Justice Mapping Tool, which allows communities or facilities applying for certain permits to enter any address in New Jersey to “find out whether it is within an overburdened community, as defined by the criteria in the bill.”

This constitutes a “first level assessment,” as Moriarty explained, to determine if the community in question “has stressors that are disproportionately higher to its neighbors,” thereby classifying it as overburdened.

Upon completing the first assessments, an applicant will then conduct an environmental justice impact assessment. This includes an evaluation of the stressors, such as air and water quality, facing a community and how the applicant might add to those impacts. Next, the applicant is required to release an environmental justice impact statement to communicate the potential environmental and public health stressors posed by the proposal in addition to the stressors already affecting the overburdened community. This will likely be followed by a public hearing where applicants can hear community concerns. The final stage of the process is for the DEP to determine whether or not to accept the permit application. While the specifics of this decision-making process have yet to be distilled, it will be guided by the ultimate goal of reducing the potential addition of stressors on a community by a facility.

To enforce the law, which serves as a guidepost for environmental justice regulations, the DEP is holding regular stakeholder meetings where organizers, advocates, and industry representatives can engage with the rulemaking and implementation of S.232. The first meeting was held in October 2020 and broadly aimed to introduce the legislation, define terminology, and request input from stakeholders on the implementation process.

Subsequent meetings have focused on defining specific parameters of the bill, discerning gaps in regulation, outlining environmental and public health stressors, and determining metrics to analyze the stressors.

These stakeholder meetings allow the decision-making process to be transparent, accessible, and community-driven. “One of the benefits of doing this in a step-by-step way and being as public and open as we are with our process is that we're able to get really good information from everybody, and particularly the environmental justice advocates,” Moriarty said.

“It's unprecedented, not just for the DEP, but for any bureaucratic agency in New Jersey, and I think in most places, to do rulemaking in this matter, where they actually have monthly stakeholder meetings to check in on every single portion of the law,” Lopez-Nuñez said. “I think that that's a really big deal. It's unprecedented access for all communities.”

Although it is groundbreaking, S.232 is not a panacea for all environmental injustices in the state. For example, the environmental justice process can only be enforced when facilities are applying to renew or expand permits, preventing the DEP from regulating the impacts of existing facilities posing environmental and public health threats to communities until they apply for a permit renewal or expansion.

Moreover, Lopez-Nuñez flags outreach to communities as another hurdle for S.232. While forums to engage with the implementation of the law are open to the public, the burden of communication is often left to community-based organizations, like the ICC, who pursue this work without pay.

“S.232 is not going to solve our problems,” Lopez-Nuñez said. “Hopefully, it'll prevent new problems from coming on. Since S.232 was passed, we already have two new applications [from facilities]. One is for a sludge factory that will process 480 tons [of municipal sewage sludge] a day.” The second, Lopez-Nuñez noted, is for another power plant. “We already have two power plants in our neighborhood. It's only 4 square miles.”

The legislation will hopefully serve to “put conditions on renewals,” as Lopez-Nuñez put it, potentially serving to halt or deny these recent permit applications.

Communities, stakeholders, and legislators have expressed optimism about the success of the law, which advances the environmental justice movement both in New Jersey and in the country. As the state leads on legislation dealing with disproportionate impacts, the Environmental Justice for All Act and comparable federal bills are poised to follow, expanding the influence of S.232 and lightening the burdens on communities across the nation.

“Our hope is that, over time, we will improve conditions in overburdened communities and, in the long run, reduce the number of overburdened communities in the state,” Moriarty said.

“Whenever we're talking about environmental justice, it's not even about any one person. It's just really important to focus on the communities and the environmental justice movement as a whole,” Lopez-Nuñez said.

Author: Hamzah Jhaveri