This week, the Appellate Division of Superior Court heard the business community’s effort to invalidate the rule-making process of the Department of Environmental Protection’s Environmental Justice Law, arguing it has caused chaos and creates more problems than it cures.
A three-judge panel, sitting in New Brunswick, heard arguments from two appellants, ELEC 825 and the Institute of Scrap Recycling Industries.
NJBIA, represented by the Genova Burns law firm, and the Chemistry Council of New Jersey, represented by K&L Gates, both joined as amicus to support the challenge to the rule.
DEP adopted the environmental justice (EJ) rule in April without any of the substantive changes recommended by the business community.
According to NJBIA Deputy Chief Government Affairs Officer Ray Cantor, the arguments provided by the appellants this week centered around numerous instances where the regulations clearly exceeded the specific provisions in the statute, including:
- Expanding the reach of the law to include areas with no population (zero population block groups) where the law specifically defined overburdened communities based on the populations in those census tracts;
- Excluding overburdened communities from the geographic point of comparison which essentially made all OBCs in exceedance of the stressor criteria;
- Defining “new” facilities to include existing facilities who did not have a permit;
- Defining “expansion” to include changes of use even though the facility was not physically expanding;
- Adopting mapping and stressor criteria by guidance and not going through the regulatory process;
- Excluding economic impacts from being considered as a compelling public need.
In its amicus brief, NJBIA emphasized the impact rule has had and will continue to have on the business community. Cantor said, to date, although the rules have been in place for over two years, only one application has moved through the process.
“Without clear standards and timeframes for decisions, a business cannot know what is to be expected or how long the process will take,” Cantor said.
“The result of all of this is regulatory overreach that does not serve the interests of the communities it seeks to protect.”
