The court’s ruling upholds regulations implementing a landmark New Jersey environmental law that can bar construction based on pollution. (Photo by Dana DiFilippo/New Jersey Monitor)
Environmentalists are cheering after a New Jersey appellate court upheld controversial new state environmental regulations and rejected a challenge from scrap recyclers and a labor union that alleged regulators had acted arbitrarily and exceeded their statutory authority.
The court’s Monday decision will keep in place, for now, the landmark New Jersey law that requires additional environmental reviews for projects in overburdened communities and allows the Department of Environmental Protection to block those projects if they would disproportionally worsen public health there.
“Today’s decision was a win for all New Jersey residents, but primarily for the environmental justice communities that have long championed this fight. When our environmental laws protect our most vulnerable communities, they protect us all,” said Casandia Bellevue, an attorney with Earthjustice, which represented supporters of the law.
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Some business groups lamented the decision. Ray Cantor, deputy chief government affairs officer for the New Jersey Business and Industry Association, said the environmental rules “have had, and will continue to have, a chilling effect on New Jersey’s business community.”
The 2020 Environmental Justice Law requires state environmental regulators to reject permit applications for facilities like gas power and waste treatment plants that produce significant contaminants in communities where at least 35% of residents are low-income (or 40% are non-white or have limited English proficiency) if they fail to pass a public-interest balancing test.
The law is meant to limit further contamination in parts of New Jersey that historically saw significant pollution during the state’s industrial era, though provisions allow some projects to continue based on public need or mitigation technology approved by regulators.
The public-interest balancing test does not consider whether a project’s economic activity could be used to overcome disproportionate health impacts. The New Jersey branch of the Institute of Scrap Recycling Industries and the Engineers Labor Employer Cooperative Local 825 argued that excluding economic gains from the test is impermissibly arbitrary because a better economy could boost education and employment levels, reducing public health stressors.
But the court agreed with state officials who said economic benefits are difficult to quantify while reviewing a project’s application, adding that they cannot enforce promises of economic growth.
Though other New Jersey environmental laws balanced economic growth against public or environmental health, the Environmental Justice Law did not, the three-judge panel found.
“It is clear from the Legislature’s intent in [the Environmental Justice Law] that it requires prioritizing the health, safety, and environmental needs of the individuals in [overburdened communities] and that neither DEP nor applicants for approvals are allowed to trade fewer pollution reductions for more jobs and tax ratables,” Judge Heidi Currier wrote for the panel.
New Jersey marks all or part of 341 municipalities covering more than 5.2 million residents as overburdened communities, according to data maintained by the Department of Environmental Protection.
Those include portions of cities — swathes of Newark and Atlantic City, for example — but they also include parts of wealthier suburbs like Voorhees, where significant percentages of residents in a given census block are low-income, are non-white, or speak limited English.
The court rejected the plaintiffs’ other challenges for similar reasons. Rules requiring reviews for expansions at existing facilities — including ones that do not alter a facility’s physical footprint — are not overbroad because those expansions could still strain public health, the court said.
Rules requiring additional environmental reviews in census blocks with zero residents bordering overburdened communities are likewise permissible because pollution generated there could flow to areas covered by the law.
Regulations requiring air pollution controls at some sites are also permissible, the judges ruled. Scrap recyclers and the union had charged that those provisions conflict with the Air Pollution Control Act and are impermissibly vague.
The court also rejected plaintiffs’ claims that the department violated the Administrative Procedures Act by failing to provide meaningful analysis of the rules’ impact on jobs and the economy, arguing its impact reports were “devoid of meaningful analysis or information.”
The department had released all required economic impact statements alongside the rule proposal, the judges said, adding the law does not require the department to make a more fulsome analysis of how the rule might affect New Jersey’s economy.
“Neither the rule nor the APA require an agency to provide specific cost information or quantify the expected costs and revenues generated or lost. ‘All that is required is for the agency to describe the expected economic impact,’” Currier wrote, citing an earlier case.
Dennis Toft, who represented the engineers union, expressed disappointment in the ruling.
“We’re disappointed that the appellate division deferred completely to DEP when circumstances where it was admitted by the DEP that the legislation had gaps in it that DEP, on its own, decided to fill those gaps without pointing them out and going back and having the robust legislative debate that would’ve been called for,” he said.
He said it is too early to say whether his clients would petition the New Jersey Supreme Court for an appeal. An attorney for the Institute of Scrap Recycling Industries did not immediately return a request for comment.
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