Posted on March 10, 2022 by Edward A. Hogan
In enacting its innovative Environmental Justice Law, the New Jersey state legislature declared, among other things, that: “all New Jersey residents, regardless of income, race, ethnicity, color, or national origin, have a right to live, work, and recreate in a clean and healthy environment”; “no community should bear a disproportionate share of the adverse environmental and public health consequences that accompany the State’s economic growth; [and] the State’s overburdened communities [should] have a meaningful opportunity to participate in any decision to allow… certain types of facilities… “ that might adversely affect them. The law provides for the promulgation of rules that will prohibit the issuance of an environmental permit for a new or expanded facility or for a renewal of a permit for a major source unless the applicant prepares an environmental justice impact statement and organizes and conducts a public hearing in the overburdened community, with those communities to be identified by rule. The job of promulgating implementing regulations is placed on the New Jersey Department of Environmental Protection (NJDEP).
Much of the attention during the enactment of the legislation focused upon the types of facilities that would be the subject to this new and enhanced review and upon how overburdened communities would be identified. For the past year, NJDEP has been engaged in an extensive stakeholder meeting process. While a great deal of consideration has been given to the criteria for determining whether permit approvals will disproportionately and negatively impact those overburdened communities, relatively little consideration has been given as to what the public participation process should entail.
For the past several decades, NJ environmental permit hearings have been relatively sterile events. The permit applicant rarely appeared or presented materials. The Hearing Officer, an NJDEP employee simply declared the hearing opened and managed the proceeding in which those seeking to present comments spoke, with their comments being recorded by a stenographer. The Hearing Officer neither asked nor answered questions. While participants got their comments on the record, they could have as effectively simply submitted written comments because the permit decision makers rarely attended the hearing and instead relied solely upon the hearing transcript and the written submissions. The hearing was a one-way affair, with the attendees providing information, but receiving none.
The Environmental Justice Law modifies this hearing paradigm in a significant way. Under the Law, rather than a NJDEP Hearing Officer, the permit applicant itself must conduct the public hearing. In addition to the usual organizational tasks, “[a]t the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or expanded facility, or existing major source, as applicable, and the potential environmental and public health stressors associated with the facility… and provide an opportunity for meaningful public participation at the public hearing.” (emphasis added). As with any other permit proceeding, the NJDEP will thereafter “consider the testimony presented and any written comments received, and evaluate the issuance of, or conditions to, the permit…”
This novel structure has the potential to enhance the information available to the local community as well as to encourage dialog with the applicant. Perhaps that was the intent of the legislative sponsors. However, given that those attending hearings on environmental permits more frequently are opposed to rather than supportive of permit issuance, the hearing has the potential to quickly turn adversarial, which may discourage public participation. To make the hearing process efficient and productive, it will be incumbent upon the NJDEP to provide clear guidance to both permit applicants and to public participants of what is expected of them at the public hearing.