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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

New Jersey Law Aims to Protect Overburdened Communities from Disproportionate Levels of Environmental Pollution - Shanna McCormack

Introduction

Environmental justice is an essential component of meaningful environmental change. It places the individuals and communities most heavily impacted by environmental pollution in a role central to the conversation about what should be done to stop pollution. It gives those who work, live, and play nearest the sources of pollution the ability to protect themselves from the disproportionate impacts of pollution that they face.[1] After all, the people who work, live, and play near pollution are personally familiar with the social, health, and environmental impacts of pollution and this makes them experts who should be heard when discussing environmental policy. Unless we address environmental justice issues, no discussion of environmental issues, no matter how detailed, is complete.

Low income and communities of color benefit less than white communities from environmental laws meant to protect Americans from pollution. These unequitable impacts must be addressed in environmental legislation. That is what makes New Jersey’s newest environmental justice initiative, No. 2212, an important tool in the fight for communities that are disproportionately impacted. Although not perfect, New Jersey’s No. 2212 can be used as an example and template for other states and the federal government to protect those most at risk for environmental pollution in their cities.

Background

Pollution does not impact all communities equally. In fact, in a movement that began over 30 years ago, a 1987 report by the United Church of Christ’s Commission for Racial Justice titled Toxic Wastes and Race in the United States found that race was the single most important factor in determining where toxic waste facilities were located in the United States.[2] The report further found that the strong statistical correlation between race and toxic waste facilities was the intentional result of government land use policies.[3] The report became an important tool in garnering support for environmental justice.[4]

As a result of high housing costs and historical discrimination, low-income and communities of color nationwide are often located around industrial sites, truck routes, ports, and other air pollution hotspots.[5] Further, air pollution is disproportionately caused by white Americans’ consumption but disproportionately experienced by Black and Hispanic Americans.[6] On average, white Americans experience 17 percent less air pollution than they produce while Black Americans experience 56 percent more than they produce and Hispanic Americans experience 63 percent more air pollution than they produce.[7]

Higher levels of exposure to air pollution increase the risk of developing respiratory diseases, cardiovascular diseases, and cancer.[8] These underlying health problems in turn make people more susceptible to additional disease such as COVID-19.[9] The pandemic this year has highlighted the racial disparities of disease across the United States. Black Americans are 4.7 times more likely to be hospitalized with COVID-19 complications and 2.1 times more likely to die as a result of the disease while Hispanic and Latino Americans are 4.6 times more likely to be hospitalized from COVID-19 and 1.1 times more likely to die.[10]

Analysis

  1. Benefits of New Jersey No. 2212

The state of New Jersey enacted a law in October 2020 to address the disparate levels of pollution in low-income communities and communities of color.[11] The law promises to address pollution in overburdened communities within the state and reflects a statewide effort to prevent additional disproportionate impacts. The law defines “overburdened communities” as “any census block group…in which: (1) at least 35 percent of the households qualify as low-income households, (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community, or (3) at least 40 percent of the households have limited English proficiency.”[12] Under the law, New Jersey’s Department of Environmental Protection (the Department) is required to publish a list of the overburdened communities on its website and must update the list at least once every two years.[13] The requirement to list the communities online and update them regularly will hold the Department accountable for keeping the list current so that communities are not overlooked.

The law requires that the New Jersey Department of Environmental Protection deny permits for certain new polluting facilities, expansions of existing facilities, or place conditions on its approval of the permit if it determines that the facility will disproportionately negatively impact overburdened communities in New Jersey by exposing them to additional sources of pollution including: air pollution, contaminated sites, solid waste facilities, recycling facilities, scrap yards, point sources of water pollution, or other environmental conditions that may cause potential public health impacts.[14] The facilities included in the law are: major sources of air pollution under the federal Clean Air Act, resource recovery facilities and incinerators, sludge processing facilities, large sewage treatment plants, large solid waste and recycling facilities, scrap metal facilities, landfills, and medical waste incinerators not constructed as part of a hospital.[15] By including a variety of different sources of air pollution and specifically seeking to protect communities traditionally burdened with an unequitable share of pollution, the law will directly protect communities in more than 300 of the state’s 565 municipalities statewide.[16] New Jersey is one of the most segregated states in the country with regard to discriminatory housing patterns and locations of highways, so it is important that the law calls for identifying the communities overburdened and directly seeks to prevent further impact.[17]

Additionally, the law includes a provision requiring that applicants for permits of facilities covered by the law provide an environmental justice impact statement that assesses the potential environmental and public health stressors that would be caused by the new or expanded facility as well as the stressors already located in the overburdened community.[18] The statement must be published online, and the permit applicant must hold a public hearing about the impacts of the permit on the affected neighborhood.[19] The statute requires that the statement be published on the New Jersey Department of Environmental Protection’s website and in at least two newspapers circulated in the community, including one in a local non-English newspaper if applicable. The applicant must also accept both written and oral comments from any interested party and provide opportunity for meaningful public participation at the public hearing.[20]

Both the accessibility provided to non-English speakers by the required newspaper publication and the meaningful community involvement required by the public comment process help ensure that affected community members can voice their opposition or support for a permit approval. It also means that any comments must be considered by the Department in evaluating conditions to the permit. This is a powerful tool that communities can use to force the Department to critically evaluate any permit approvals. The law further requires that the Department evaluate the comments and add any conditions to the permit approval needed to “avoid or reduce any adverse public health stressors affecting the overburdened community.”[21] The degree of reduction of impacts is not specified in the law and effective implementation will depend on the degree of reduction required by the Department in evaluating and placing conditions on the permit’s approval.

  1. The Law Fails to go Far Enough

New Jersey’s new environmental justice law will make a difference to overburdened communities as it is written, but there are a few ways that the law does not go far enough in protecting overburdened communities from disproportionate levels of pollution. Under the current law, if a facility will serve a “compelling public interest in the community where it is to be located,” the Department may grant a permit for a facility even if it will result in increased pollution in an overburdened community.[22] This gives the Department the final say on whether or not a facility that will increase pollution is beneficial to the community that will bear the impacts of the pollution. It is still unknown what the Department will allow under the compelling public interest test of the law because was passed so recently. However, implementation of this exception will be a large factor in whether New Jersey is able to fulfill its promises under the law to protect the State’s overburdened communities from additional pollution.

In order to make sure that the compelling public interest exception is actually met, the law should allow the citizens within the impacted community a greater say in whether a new or expanded facility will truly serve a compelling public interest instead of allowing solely the Department of Environmental Protection to make the decision, perhaps by allowing the overburdened community at issue to vote on the ultimate decision to allow an exception. This will allow for an exception to be included in the law but for that exception to reflect the needs and wants of the community that will experience the additional pollution. Given the historic discrimination in government decision making at all levels, the ultimate decision to allow additional pollution in a community should rest with that community and not the Department.

New Jersey law No. 2212 does not allow the Department of Environmental Protection to require that an existing facility decrease emissions from the facility as part of the permit process if granting the permit will not increase the facility’s emissions or the permit is not for a major source as defined by the Clean Air Act and No. 2212.[23] Under the Clean Air Act, a major source is defined as one “which directly emits or has the potential to emit, ten tons per year of a hazardous air pollutant or twenty-five tons of a combination of hazardous air pollutants.”[24] No. 2212 incorporates the Clean Air Act definition but goes a step further by including facilities that have the potential to emit one hundred tons or more per year of any air pollutant—hazardous designation not required.[25] The definitions of major source in No. 2212 mean that the Department of Environmental Protection may not require any facility that does not have the potential to emit at least ten tons per year of an air pollutant to reduce its emissions as a condition of granting the permit. This has the potential to leave out facilities which emit substantial amounts of air pollution just under this threshold.

Unless the permit is for a major source, there is no way for the Department of Environmental Protection to require a facility to reduce emissions as a part of approving a permit under No. 2212. This leaves out any potential reductions in pollution from all non-major sources of pollution and is a huge limit to how the Department can address disproportionate impacts of air pollution that already exist and are emitted from non-major sources.

  1. Improvements to New Jersey No. 2212

New Jersey’s No. 2212 is a huge step in addressing the higher levels of pollution that low-income neighborhoods and communities of color experience compared to their wealthier and whiter neighbors. It is a step that other states should consider taking as well. Along with requiring the state’s environmental department to deny permits for particular new polluting facilities, expansions of existing facilities, and placing conditions on its approval of permits it determines will disproportionately negatively impact overburdened communities in the state, states should also make a few additions in their law.

States should consider requiring environmental justice impact statements be published in both English and any other language that a certain percent of the population speaks within the community. This may require that the Department publish the environmental justice impact statement in several different languages instead of only English and one other. Additionally, states should consider adding community involvement in the final determination of any exceptions to the law that will result in permitting facilities that will increase pollution in the community but will also serve a compelling public interest in the community. Depending on the state and the types and number of major sources of air pollution, states should also consider expanding on New Jersey’s law to allow its environmental department to impose conditions on the issuance of permits for non-major sources of air pollution to address the additional air pollution that overburdened communities experience. Addressing only major sources leaves out potentially significant sources of pollution. Further, states should consider requiring an environmental justice impact statement when granting permits to facilities even when the permit will not result in increased emissions from the facility so that existing sources of pollution in the overburdened community are evaluated as well.

Housing in American cities is still largely segregated, leaving low income and people of color to bear an unequitable portion of air pollution.[26] Because of this, all states should follow New Jersey’s lead in addressing pollution through the United States’ most ambitious environmental justice law to date.[27] However, enacting a similar law in all states will not be easy. A national poll from earlier this year found that fewer than 4 in 10 white adults are aware that Latino and Black communities are exposed to more pollution than the general population.[28] Additionally, only 33% of white adults believe that environmental injustice is a major problem in the United States.[29] The federal government could also pass a law focusing on environmental justice. Perhaps there is greater possibility of the federal government building on New Jersey’s environmental justice law and passing nationwide legislation addressing disproportionate impacts of pollution with the upcoming administration change. President-elect Biden acknowledges that climate change is the greatest challenge facing the world and calls for a Green New Deal in his plan for “ a clean energy revolution and environmental justice.”[30] One of the goals of the plan is to “stand up to the abuse of power by polluters who disproportionately harm communities of color and low-income communities.”[31] This is exactly what New Jersey’s law aims to do and it could serve as a template for a similar and more expansive federal law under the new Biden Administration.

Conclusion

New Jersey’s law is an important step in addressing the racial and socioeconomic inequities of environmental pollution that is likely to have far reaching benefits for low income and communities of color within the state. The law is a strong template for action that other states can use in drafting similar legislation to protect their own citizens. However, in order to improve the protection provided in the law, other states and the federal government should add a community involvement component for any decisions to expand or permit a new facility that will serve a compelling public interest to the community where it will be located so that the state department of environment does not make the decision alone and that the community where the pollution will be located has final say in whether or not they must accept the new facility and its pollution. They should also consider including non-major sources in the permitting process under the law and reviewing the environmental impact of facilities when granting a permit will not result in an increase in the amount of pollution so that existing pollution sources are addressed as well as any new or expanded sources.

 

[1] Renee Skelton and Vernice Miller, The Environmental Justice Movement, NRDC (Mar. 17, 2016), https://www.nrdc.org/stories/environmental-justice-movement.

[2] Id.

[3] Id.

[4] Id.

[5] Cheryl Katz, People in Poor Neighborhoods Breathe More Hazardous Particles, Scientific American (Nov. 1, 2012), https://www.scientificamerican.com/article/people-poor-neighborhoods-breate-more-hazardous-particles/

[6] Jonathan Lambert, Study Finds Racial Gap Between Who Causes Air Pollution and Who Breathes It, NPR (Mar. 11, 2019), https://www.npr.org/sections/health-shots/2019/03/11/702348935/study-finds-racial-gap-between-who-causes-air-pollution-and-who-breathes-it.

[7] Id.

[8] Air Pollution and Your Health, National Institute of Environmental Health Sciences https://www.niehs.nih.gov/health/topics/agents/air-pollution/index.cfm.

[9] People with Certain Medical Conditions, CDC (Dec. 1, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.

[10] Hospitalization and Death by Race/ Ethnicity, CDC (Nov. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html

[11] Title 13. Chapter 1D. Part XI. Overburdened Communities §1-5 https://www.njleg.state.nj.us/2020/Bills/AL20/92_.HTM.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Michael Sol Warren, Landmark Bill to Protect Poor Communities from Pollution Just Passed N.J. Legislature, NJ.com (Aug. 28, 2020), https://www.nj.com/news/2020/08/landmark-bill-to-protect-poor-communities-from-pollution-just-passed-nj-legislature.html.

[17] Eric Kiefer, NJ Bill Would Give Urban Areas A Powerful Tool To Fight Polluters, Patch Media (Aug. 28, 2020), https://patch.com/new-jersey/montclair/nj-bill-would-give-urban-areas-powerful-tool-fight-polluters.

[18] Title 13. Chapter 1D. Part XI. Overburdened Communities §1-5 https://www.njleg.state.nj.us/2020/Bills/AL20/92_.HTM.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Summary of the Clean Air Act, EPA (Aug. 6, 2020), https://www.epa.gov/laws-regulations/summary-clean-air-act.

[25] Title 13. Chapter 1D. Part XI. Overburdened Communities §1-5 https://www.njleg.state.nj.us/2020/Bills/AL20/92_.HTM.

[26] Aaron Williams and Armand Emamdjomeh, America is More Diverse Than

Ever — But Still Segregated, The Washington Post (May 10, 2018), https://www.washingtonpost.com/graphics/2018/national/segregation-us-cities/.

[27] Governor Murphy Signs Historic Environmental Justice Legislation, Official Site of the State of New Jersey (Aug. 18, 2020), https://nj.gov/governor/news/news/562020/approved/20200918a.shtml.

[28] Keith Gaby and Dana Johnson, New Poll Shows Many White Americans Unaware of Unequal Burden of Pollution, Environmental Defense Fund (Oct. 26, 2020), https://www.edf.org/media/new-poll-shows-many-white-americans-unaware-unequal-burden-pollution.

[29] Id.

[30] The Biden Plan for a Clean Energy Revolution and Environmental Justice, joebiden.com https://joebiden.com/climate-plan/.

[31] Id.