The New Jersey Appellate Division has affirmed the Department of Environmental Protection’s (DEP) adoption of its comprehensive Environmental Justice Rules (EJRules), rejecting challenges brought by industry groups claiming the regulations exceeded the agency’s statutory authority or were arbitrary and capricious. The court granted substantial deference to the DEP’s interpretation of the foundational Environmental Justice Law (EJLaw), finding that the rules are necessary to achieve the Legislature’s goal of correcting historical environmental injustices in overburdened communities.
The consolidated appeals, brought by the New Jersey Chapter of the Institute of Scrap Recycling Industries, Inc. (ISRI) and the Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 (ELEC), targeted several key aspects of the EJRules (N.J.A.C. 7:1C et seq.). These rules implement the 2020 EJLaw, which requires facilities seeking permits for new construction, expansion, or major source permit renewal in designated Overburdened Communities (OBCs) to submit an Environmental Justice Impact Statement (EJIS).
Deference to DEP on Key Definitions
A major point of contention centered on how the DEP defined terms left open by the statute. Appellants argued that the DEP’s definitions for “new facility,” “compelling public interest,” and “expansion” were either ultra vires (beyond legal authority) or unconstitutionally vague.
The Appellate Division disagreed on all counts, emphasizing the judicial principle of affording “great deference” to an agency’s interpretation of a new statute it is tasked with implementing.
Regarding the definition of a “new facility,” the DEP included facilities that had not yet started operation, those undergoing a “change in use” that increased environmental stressors, and existing facilities operating without prior DEP approval. Appellants contended “new” should mean only recently created. Judge Currier, writing for the court, noted that “new” can also mean “changed from the former state.” Furthermore, treating non-compliant, unpermitted facilities as “new” was deemed reasonable, preventing them from benefiting from the status afforded to lawfully existing operations.
The court also upheld the restrictive definition of “compelling public interest,” which allows a permit denial to be overturned for a new facility in an OBC. The DEP rule explicitly states that the economic benefits of a proposed facility—such as local hiring or increased local business transactions—shall not be considered in determining compelling public interest. Appellants argued this was arbitrary, especially since unemployment is counted as a stressor. The court found DEP’s reasoning sound: the EJLaw’s mandate is to prioritize environmental and health well-being, and economic promises are too difficult to quantify and enforce reliably, potentially undermining the core goal of limiting pollution burdens in vulnerable areas.
For “expansion of an existing facility,” the DEP defined it broadly to include any modification or expansion of operations that *has the potential* to increase environmental stressors. The court found this consistent with the EJLaw’s focus on preventing any contribution to adverse cumulative stressors.
Extending Reach to Adjacent Empty Land
Perhaps the most surprising regulatory extension challenged was the DEP’s inclusion of facilities in zero-population census blocks immediately adjacent to an OBC. Appellants argued the EJLaw only applies to facilities *in* an OBC.
The DEP countered that if a facility in an empty block group borders an OBC, its impacts are likely the same as if it were inside. The court agreed that this extension was not ultra vires. It aligned with the statutory instruction to assess stressors “located in or affecting” the OBC and to prevent census boundary manipulation from undermining protections. The DEP clarified that this only applies if the zero-population block group facility borders the *residential areas* of the OBC, providing a practical buffer against impacts.
Control Measures and Localized Air Pollution Technology
Appellants challenged the DEP’s authority to impose conditions that might extend beyond the applicant’s direct construction or operation—specifically, requiring offsite measures within the OBC to reduce existing stressors. The court affirmed this authority, viewing it as necessary for the DEP to fulfill its mandate to “avoid or reduce the adverse environmental or public health stressors” affecting the community.
For major air pollution sources, the DEP created a Localized Impact Control Technology (LICT) standard. This standard mandates the use of the *technically* most effective pollution control technology, explicitly excluding economic feasibility or cost-effectiveness from the analysis for facilities in OBCs. The court found this consistent with the EJLaw’s explicit instruction to impose conditions “notwithstanding the provision of any other law,” prioritizing stressor reduction over economic considerations in these specific environmental justice contexts.
Stressors and Procedural Compliance
The court also dismissed claims regarding the identification of environmental and public health stressors. The DEP identified 26 stressors across eight categories, including “Social Determinants of Health” and “May Cause Potential Health Impacts.” Appellants claimed these “quality of life” factors exceeded the statutory definition of pollution sources or disease conditions.
The court found the statutory language intentionally open-ended (“but not limited to”). The DEP’s inclusion of socioeconomic factors was deemed a reasonable interpretation of its expertise in protecting public health and welfare, providing a necessary baseline to understand how existing strains make communities vulnerable to *further* pollution.
Finally, the court ruled that the DEP was not required to issue its Environmental Justice Mapping (EJMAP) tool and Technical Guidance through formal rulemaking, as the EJLaw specifically authorized the DEP to issue such guidance documents, which merely explained the required data analysis without imposing new legal requirements. Similarly, the court found the DEP substantially complied with the Administrative Procedure Act’s requirements for impact statements, noting that the law does not demand quantification of every potential job loss or economic cost.
The Appellate Division ultimately affirmed the DEP’s adoption of the EJRules in their entirety.