On October 1, 2020, the New Jersey Department of Environmental Protection (NJDEP) issued its long-awaited Executive Branch environmental justice guidance document, titled “Furthering the Promise: A Guidance Document for Advancing Environmental Justice Across State Government”. The guidance sets forth the “framework for all Executive Branch agencies and departments to incorporate environmental justice considerations in implementing their statutory and regulatory responsibilities.” It follows on the heels of New Jersey’s new Environmental Justice Law, signed by the Governor on September 28, 2020 (and summarized here) which sets forth a statutory framework for evaluation and decision-making on NJDEP permit applications for certain facilities in designated environmental justice communities. The combination of the two actions signals a strong emphasis of the Murphy administration.
The framework set forth in the guidance, which was required by Governor Murphy’s Executive order 23 issued April 20, 2018, includes three main initiatives:
- Apply principles to further environmental justice in affected communities
- Launch a new Environmental Justice Interagency Council (EJIC)
- Complete Executive Branch initial environmental justice assessments and action plans
NJDEP will take a lead role in this effort. It will head up the EJIC which will also include senior representatives of all the Executive Branch agencies and departments. The guidance contemplates that the EJIC will be a forum for enhancing interagency collaboration, sharing of information and best practices, facilitating the leveraging of resources, and measuring Executive Branch progress. It will also establish workgroups and training.
NJDEP will kick off the process for developing the initial assessments as an example to the other agencies and departments and then will provide training and workshops to the others. A detailed template for these assessments is set forth in the guidance. Once the initial assessments are completed, each agency or department will develop its own action plan and in doing so may consult with DEP and DEP’s Environmental Justice Advisory Council (EJAC). An outline for the action plans is contained in the guidance. The guidance contemplates a time frame for this process, commencing in November 2020 and continuing to a date that is 240 days after the lifting of the COVID-19 public health emergency. The first two-year progress report is expected in fall 2023.
Guiding principles for the agencies include the following:
- Cultivating awareness consistently. This will begin with workshops and training for Executive Branch employees to be facilitated by the EJIC.
- Empowering communities to participate in decision-making. According to the guidance, the goal is to afford these communities “the right to participate as equal partners at every level of the decision-making process.”
- Planning for and embracing change. This includes institutionalizing successful strategies and developing measurable goals, targets and milestones.
While distinct from the new Environmental Justice Law, the Executive Branch process takes its lead from some of the concepts in the former. For example, the list of communities of concern to be identified by each agency will be based on the same demographic criteria used to identify the “overburdened communities” in the law. The guidance acknowledges, however, that certain Executive Branch agencies may use additional demographic data in their programs and it appears that such data may be channeled to other agencies through the EJIC. In addition, the agencies will assess the level of environmental and public health stressors in these communities using the same criteria for these stressors as set forth in the Environmental Justice Law, although again, the guidance acknowledges that those stressors are not exclusive and may be supplemented.
Finally, the guidance provides for consideration of the lack or absence of environmental or public health benefits in identifying environmental justice communities, a factor not expressly contemplated in the Environmental Justice Law. Nevertheless, NJDEP officials have indicated the possibility that community benefits associated with a particular facility may be considered in evaluating permits under the Law. Such benefits may also be considered in the “compelling public need” analysis contemplated under the Law.
While the guidance process itself is lacking in express statutory or regulatory authority and does not contemplate the development of a regulatory framework to accompany its implementation, it seems likely that the evolution and implementation of the agency action plans could be informed by the implementation of the Environmental Justice Law and vice versa. And conceptually, the impact of the agency action plans could be far broader in scope than the Law given that they could impact agency decision-making on the full range of Executive Branch programming, including permitting, grants and loans, technical assistance, enforcement and many more areas affected by the Executive Branch agencies and departments.