Last week, the state Senate approved a bill giving the Department of Environmental Protection the authority to judge the impact of certain development projects on communities with substantial minority and low-income households.
The bill is intended to address the cumulative effect of facilities such as power plants, sewage treatment, incinerators and waste sites that each meet New Jersey’s stringent environmental regulations.
The legislation defines such an “overburdened community” as any U.S. Census block in which at least 40% of the residents identify as minority members (or have limited English proficiency) and at least 35% of households are low-income. Those two criteria suggest where this kind of approach to localized pollution regulation will be challenging. Basing an environmental regulation on ethnicity also raises the question of whether the law would withstand a court challenge.
Gov. Phil Murphy and fellow Democrats had held a news conference on Juneteenth to declare their support for the bill, which has been pushed by environmental activists for a decade. It’s passage into law looks certain as part of the party’s response to the police-violence-inspired national focus on racism.
The DEP will be given broad power to decide that there are “adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities.” It will then be required to deny permits for certain new or expanded facilities, or the renewal of permits for existing facilities.
Any “major source of air pollution” under state and federal law would be subject to the new regulation, which would include manufacturers. Specifically included are recycling, incineration — including of medical waste — landfills, sewage treatment and transfer stations.
State business organizations have signaled their support for the goal of addressing the cumulative impact of facilities that meet environmental standards, and sympathize with the challenge of basing a new regulation on something difficult to define and measure.
But they worry the current bill would result in essentially excluding new and expanded business development of many kinds.
Since the “overburdened communities” as defined include more than 300 census tracts with more than 4 million residents, this law might add another major burden onto business development in New Jersey.
Much would depend on what the DEP decides to do. The department will be challenged to base its permit denials on measurable and relevant environmental and public health criteria.
Even then, laudable improvement for residents in those criteria will be offset to some degree by reduced business investment. That could increase the risk of poverty for the low-income households the law is trying to help.
Perhaps this trade-off can be balanced. If not, a different approach should be considered.