NJBIA said Monday it is disappointed by an appellate court decision upholidng the controversial rules and regulations promulgated by the New Jersey Department of Environmental Protection to implement the state’s 2020 Environmental Justice Law.
The New Jersey Chapter of the Institute of Scrap Recycling Industries (ISRI) and the Engineers Labor Employer Cooperative of the International Union of Operating Engineers Local 825 (ELEC) had brought the case, arguing DEP had overstepped its statutory authority by adopting rules in 2023 that are unconstitutionally vague, overly broad and arbitrary.
NJBIA, represented by the Genova Burns law firm, filed an amicus brief supporting ISRI and ELEC’s efforts to invalidate the EJ rules.
“The EJ rules have had, and will continue to have, a chilling effect on New Jersey’s business community,” NJBIA Deputy Chief Government Affairs Officer Ray Cantor said in a statement.
“They have been in place for more than two years, but only two applications have 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. The result of all of this is regulatory overreach that does not serve the interests of the communities it seeks to protect,” Cantor said.
The EJ rules require businesses seeking environmental permits for new or existing facilities in “overburdened communities” to submit, after a process that includes public participation, an independent analysis of the facility’s environmental and public health “stressors.” A permit application is not deemed complete until an EJ assessment and public hearings have been held.
The plaintiffs argued the DEP rules expanded the reach of the law to include areas with no population (“zero population block groups”) even though the law passed by the Legislature specifically defined overburdened communities based on the populations in those census tracts. The plaintiffs also took issue with DEP’s definition of new and expanding facilities, as well as DEP’s mapping and stressor criteria.
In their 70-page ruling, Appellate Division of Superior Court Judges Heidi Willis Currier, Maritza Berdote Byrne, and Jeffrey R. Jablonski upheld the DEP rules, noting previous case law holding that state agencies are afforded flexibility in setting procedures to implement legislative policy.
“After careful consideration of the contentions in light of the applicable principles of law, we affirm,” the appellate panel wrote.
Since the appellate decision was unanimous, the plaintiffs would need to seek certification from the New Jersey Supreme Court to pursue an appeal.
“If there is further appeal, NJBIA will consider staying on as an amicus to the case and we encourage the incoming Sherrill administration to revisit these regulations,” Cantor said.
