By Elizabeth Frye | Managing Editor

November 15, 2023

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Environmental justice aims for a fair treatment of environmental protection and “equal access to the decision-making process[es]” for everyone—regardless of race, culture, or income.[1] Low-income and racial- and ethnic-minority communities have been, and are, significantly and unfairly impacted by environmental and public health stressors without meaningful input in government decision making.[2] The federal and state governments have continued to acknowledge environmental justice issues. Yet, there is still a lack of legislation that will significantly contribute to an efficient solution—one that not only repairs decades of damage but establishes a system to preven

t further despair. To avoid continued inequality, environmental justice legislation must recognize the implications of agency deference—those that contributed to these disparities in the first place.[3] Future environmental justice legislation should follow New Jersey’s Environmental Justice Law (the Law) with two key differences: defining compelling public interest and directing a stricter standard of review, minimizing deference to agency misinterpretation.

The Law directs the New Jersey Department of Environmental Protection (the Department) to deny a facility’s permit application if there is a finding of disproportionate impact on a designated overburdened community after assessing both the facility’s statement and community input.[4] However, if the facility can demonstrate the proposal has a “compelling public interest” the Department can attach conditions to the permit to reduce the adverse impact.[5] This compelling public interest exception is not defined in the statute and the legislature did not provide guidance on the conditions or limitations the agency may impose.[6] The statute directs the Department to issue rules in accordance with the Law as they see fit for its implementation.[7]

The Law is revolutionary because it was the first to require agency action.[8] The Law appears to surpass the typical balancing test and is not merely the legislature’s or agency’s best intention to protect the environment or hope that a choice will be made in favor of reducing adverse impacts.[9] Nevertheless, upon closer examination of each of its individual parts, the Law is another outcome-determinative balancing test—which public health interest is more compelling?

Each facility and permit applicable under the Law could very well serve a compelling public interest in s

ome capacity, even without considering economic factors such as whether the facility will provide employment opportunities to the community.[10] The exception is provided to account for some emissions that may be necessary despite the disproportionate impact because there is some other impact which supersedes potential adverse health stressors. Without a definition, the term is vague and open to various, and equally legal, interpretations. Although the Department provides more guidance in the proposed rules for the definition of compelling public interest,[11] the exception will require the Department to balance the interests of public health for each permit review and when the agency approves or rejects a permit under this exception, judicial review will be limited.

Reviewability will be limited because the standard for reviewing agency decisions is one based on reasonableness; the standard is whether an agency acted arbitrarily and capriciously.[12] So, once permits are either approved or denied, the reviewability of these decisions will be minimal because a reviewing court is unlikely to find that the agency acted arbitrarily and capriciously.[13] Therefore, by including an undefined exception, the Law aligns with most environmental protection and environmental justice statutes.[14] A classic example starts with The National Environmental Policy Act (NEPA).[15]

NEPA requires all federal agencies to consider adverse environmental impacts and to prepare an environmental impact statement for “all major federal actions that significantly affect[] the quality of the human environment.”[16] Agencies must use a balancing test: weighing the costs and adverse environmental impacts with the benefits including alternative solutions to proposed projects.[17] But, NEPA does not require the environment to win or require agencies to consider or balance adverse social impacts.[18] But when courts are reviewing actions under NEPA, the standard of review is slightly heightened.

In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, the court recognized some agency decisions, such as those made under NEPA, qualify for more than a rational basis review.[19] The court reasoned that environmental protection deserves more than a reasonableness standard because NEPA sets a high standard for agencies.[20] The court concluded that since the substantive duties of NEPA required careful and informed decision making, the standards are far from flexible.[21] It was the court’s judicial duty to make the purpose of NEPA a reality.[22] New Jersey courts have yet to apply this reasoned review.

Similar to NEPA, the Law requires the Department to balance competing public interests.[23] While the exception will prove necessary in certain circumstances, and should not be removed, the undefined exception leaves too much leeway for agency decision making that could drastically sway with political changes in the executive branch. The undefined exception provides the Department an opportunity to interpret the exception as overly broad or overly narrow. If the former is adopted, the Law, and the reason it was enacted in the first place, would be swallowed. Without clear intent from New Jersey’s Legislature, courts will award that interpretation great deference.[24]

To ensure the purpose of the Law is properly implemented, the legislature should amend the Law to define “compelling public interest” and direct courts to a harder look standard of review, similar to the heightened standard applied to decisions under NEPA.[25] If not, New Jersey courts should ensure the decisions are made in the best interests of the communities affected aligned with the Law’s overarching purpose.[26] In the battle of environmental justice and agency deference, it’s time environmental justice wins.

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[1] Environmental Justice, EPA, https://www.epa.gov/environmentaljustice (last updated Sep. 6, 2023); Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Aug. 16, 2023).

[2] Meaningful involvement means “people have an opportunity to participate in decisions about activities that may affect their environment and/or health.” Learn About Environmental Justice, supra note 1.

[3] See generally Nerissa-Anne D. Robinson, Deferring Environmental Justice in Mississippi: Agency Deference Legacy Impacts Southern Black Communities, 6 S. Region Black L. Students Ass’n L.J. 100 (2012) (arguing the standard of reasonableness for agency decisions is inadequate for social justice issues); See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Tp. of Franklin, 233 N.J. 546, 558 (2018) (“A zoning board’s land use decisions . . . enjoy a presumption of validity. They must be allowed wide latitude in the exercise of delegated discretion.” (internal quotation marks omitted)).

[4] N.J. Stat. Ann. §§ 13:1D-157–61 (West 2020).

[5] N.J. Stat. Ann. §§ 13:1D-160(3)(c).

[6] N.J. Stat. Ann. §§ 13:1D-158, 160(3)(c).

[7] N.J. Stat. Ann. § 13:1D-161; see 54 N.J. Reg. 971(a) (June 6, 2022) (proposed rules). The rule has since been finalized, N.J. Admin. Code § 7:1C, but the language of the compelling public interest exception remains unaltered post public comment. Id. § 7:1C-5.3.

[8] See generally Thomas Prol, Fulfilling the Promise of the Civil Rights Movement with Environmental Justice, 336 N.J. Law. 14 (2022) (labeling New Jersey “as a [n]ational leader in environmental justice.”); Julius M. Redd, Hilary Jacobs, & Stacy Sublett Halliday, New Jersey Passes Landmark Environmental Justice Legislation, Nat. L. Rev. (Sept. 1, 2020), https://www.natlawreview.com/article/new-jersey-passes-landmark-environmental-justice-legislation (recognizing New Jersey’s “first-of-its-kind environmental justice legislation”).

[9] Most environmental justice efforts in the United States have followed the pattern of early environmental protection laws, whereas the government acknowledges the issue and instructs agencies to consider it in decision making. These laws establish a mechanism with the hope that the best decision will be made, but the standards are set to a minimum. See generally John A. Mueller & Taylor Lilley, Forty Years of Environmental Justice: Where is the Justice?, 25 Rich. Pub. Int. L. Rev. 75 (2022) (arguing after years of government recognition of environmental justice, it is time for change).

[10] The law lists eight specific industries that must comply with the legislation: major sources of air pollution; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity of more than 50 million gallons per day; transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; scrap metal facilities; landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and medical waste incinerators. N.J. Stat. Ann. § 13:1D-158.

[11] According to the Department, for a public interest to be compelling, “the primary p

urpose of the facility must be to serve an essential environmental, health or safety need of the host overburdened community for which there is no reasonable alternative to sitting within the overburdened community.” 54 N.J. Reg. 971(a) (June 6, 2022).

[12] See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)

[13] See Waste Mgmt. of NJ, Inc. v. Union Cnty Utils. Auth., 399 N.J. Super. 508, 526 (N.J. Super. App. Div. 2008); Kramer, 45 N.J. at 296–97 (N.J. 1965) (“Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.”); In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006) (holding that the Department did not act unreasonably because environmental justice was properly considered).

[14] See, e.g., N.Y. Env’t Conserv. Law, §§ 8-105, 8-0113, 70-0107 (requiring New York’s Department of Environmental Conservation to consider potential disproportionate impacts); Environmental Justice Act, R.I. S2087 (2022) (requiring consideration of dipropionate impacts on overburdened communities for permit applications); see also State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legis. (last updated May 26, 2023), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx.

[15] National Environmental Policy Act, 42 U.S.C. § 4321 (1969).

[16] 42 U.S.C. § 4321.

[17] Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1111, 1123 (D.C. Cir. 1971).

[18] Id. at 1111.

[19] Id. at 1114.

[20] Id. (“Congress did not intend the Act to be such a paper tiger.”).

[21] Id. at 1115.

[22] Id. at 1111 (“But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role.”).

[23] 42 U.S.C. § 4321 (1969).

[24] See In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006).

[25] See generally Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1111 (D.C. Cir. 1971).

[26] N.J. Stat. Ann. §§ 13:1D-157.