Environmental Justice Updates: Executive Order 12898 and New Jersey’s Implementation of its Environmental Justice Law

“Environmental Justice”

The United States Environmental Protection Agency (“EPA”) defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.” Specifically, the EPA is concerned with protecting historically “overburdened communities,” i.e., “[m]inority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks.”

Executive Order 12898

Building upon prior efforts of the Biden administration¹, Executive Order 12898 continues the pursuit of a “whole-of-government” approach to advance EJ. Specifically, the Executive Order directs each federal agency to implement a number of practices within EJ communities, such as the identification and analysis of disproportionate and adverse environmental and human health effects, risks, and hazards of federal activities, including climate change and cumulative impacts; the evaluation of legal applicable legal authorities to support the creation of high-quality and well-paying jobs; the provision of opportunities for meaningful engagement for those potentially affected by federal activities; and to improve collaboration across state, tribal, territorial, and local governments on EJ programs.

Several aspects of the Executive Order stand out:

• Expansion of the EJ Definition: The Order incorporates “Tribal affiliation” and “disability” as protected categories, thereby expanding the current definition of EJ as used by the EPA. EJ is to be considered in agency decision-making and other “Federal activities” to include “rulemaking, guidance, policy, program, practice, or action that affects or has the potential to affect human health and the environment” which may relate to compliance, permitting, oversight of federal funds, and the management of federal resources and facilities.
• Environmental Justice Strategic Plans: Each federal agency is directed to submit an Environmental Justice Strategic Plan (“Plan”) to the Chair of the Council of Environmental Quality (“CEQ”) setting forth its “vision, goals, priority actions, and metrics to address and advance” EJ. Such Plans are also required to address regulatory, permit, and policy opportunities to improve accountability and compliance with agency statutes that may affect the health and environment of [marginalized] communities. This could include the expansion of tools to measure pollution and other environmental impacts as well as increasing public reporting by regulated entities. Federal agencies are required to submit their Plan within eighteen (18) months following the release of the Executive Order and every four (4) years thereafter. No later than two (2) years after the submission of their Plan, agencies must also submit to the CEQ an Environmental Justice Assessment (“Assessment”) evaluating the effectiveness of its Plan. Both the Assessment and the Plan are to be made available to the public at the time of their respective submission.
• Toxic Chemical Releases – Community Notification: Each federal agency, in accordance with the Emergency Planning and Community Right-to-Know Act of 1986, must hold a public meeting no later than six (6) weeks following the release of toxic chemicals by a federal facility to timely inform EJ communities of the nature of the release, any known or anticipated health risks, and the precautions to be taken as a result. Notification of the public meeting must be provided by the agency no later than seventy-two (72) hours after the release. Utilizing the above information, the Order directs the EPA to provide to the National Science and Technology Council’s Environmental Justice Subcommittee (also established by the Order) an annual report on trends in the data to aid the Subcommittee’s development of an EJ Research Plan.
• The White House Office of Environmental Justice: The Order establishes an Office of Environmental Justice within the CEQ, to be led by a Federal Chief Environmental Justice Officer appointed by the President. The Federal Chief Environmental Justice Officer’s role is to advance EJ initiatives, to include identifying opportunities to collaborate and coordinate with local, state, territorial, and tribal governments, and advising the Chair of the CEQ and the Interagency Council on EJ matters. The new office arrives on the heels of the 2021 Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, which established an EJ Officer in key agencies, the opening of the EPA’s Office of Environmental Justice and External Civil Rights, and the Department of Justice’s new Office of Environmental Justice.²

New Jersey’s Environmental Justice Rules

Through publication in the New Jersey Register on April 17, 2023, the New Jersey Department of Environmental Protection (“NJDEP”) finalized its EJ Rules, implementing its EJ Law (signed into law in 2020). The EJ Rules require the preparation of an EJ impact statement by specified facilities seeking certain permits in overburdened communities. Such facilities are also required to hold a public hearing to ensure public participation in the permitting process.

Application

• Certain Facilities: The EJ Law applies to eight types of facilities: (1) major sources of air pollution; (2) resource recovery facilities or incinerators; (3) sludge processing facilities, combustors or incinerators; (4) sewage treatment plants with a capacity of more than fifty (50) million gallons per day; (5) transfer stations or other solid waste facilities, or recycling facilities intending to receive at least one hundred (100) tons of recyclable material per day; (6) scrap metal facilities; (7) landfills, including, but not limited to, those that accept ash, construction or demolition debris, or solid waste; or (8) medical waste incinerators (except for hospitals or universities).
• Overburdened Community: The EJ Law defines a “burdened community” as a census block group in which: (1) at least thirty-five (35) percent of the households qualify as low-income households; (2) at least forty (40) percent of the residents identify as minority or a member of a State-recognized Tribal community; or (3) at least forty (40) percent of the households have limited proficiency in English.

Requirements

The EJ Law applies to the aforementioned facilities seeking “a permit for a new facility or for the expansion of an existing facility, or any application for the renewal of an existing facility’s major source permit” if located, or proposed to be located, in an overburdened community. Such applicants are required to prepare an EJ impact statement that assesses potential environmental and public health stressors the facility caused or contributed to, including those already borne by overburdened communities. Additionally, an applicant must organize and conduct a public hearing in the overburdened community and provide an opportunity for public comment.

After review of the EJ impact statement and other relevant information, if the NJDEP finds that the approval of the application, as proposed, would cause higher adverse cumulative environmental or public health stressors in overburdened communities compared to other communities, the NJDEP can apply permit conditions or deny the application altogether.

Takeaways

President Biden’s Executive Order is consistent with the administration’s “whole-of-government” approach to addressing EJ concerns and provides the public with much greater insight into how agencies plan to implement their EJ agendas. The Order signifies, once again, more attention, resources, and scrutiny upon entities operating in or near EJ communities. And, at a more granular level, the Order may result in delays and ground-level impacts, especially for projects that trigger review under the National Environmental Policy Act (NEPA).

New Jersey’s EJ Rules, which became effective immediately upon issuance, present significant legal and regulatory challenges to businesses and industries located in the state, potentially limiting operations and likely increasing related costs (e.g., securing the permits, extending the time period over which permits are granted/denied). Moreover, businesses and industries located elsewhere in the country should keep a close eye on the implementation of New Jersey’s EJ Rules and the potential developments resulting from them, as this shows how other states may use these rules to implement their own EJ-focused changes to laws and/or regulations.

¹ The Executive Order cites the following as part of the administration’s EJ efforts: Executive Order 13985 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government); Executive Order 13990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis); Executive Order 14008 (Tackling the Climate Crisis at Home and Abroad); Executive Order 14052 (Implementation of the Infrastructure Investment and Jobs Act); Executive Order 14057 (Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability), Executive Order 14082 (Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022); and Executive Order 14091 (Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government).

² For further information, see V&E Insight, Elevating EJ: How EPA’s New Environmental Justice Office Raises the Stakes for EJ Enforcement and IRA Funding Opportunities (Oct. 5, 2022), https://www.velaw.com/insights/elevating-ej-how-epas-new-environmental-justice-office-raises-the-stakes-for-ej-enforcement-and-ira-funding-opportunities/.