They Said It Couldn’t Be Done: A Case Study of New Jersey’s Landmark Environmental Justice Law (S. 232)

Abstract

In 2020, New Jersey Governor Phil Murphy signed a landmark environmental justice (EJ) law (S. 232) focused on cumulative impacts in the permitting process. In April 2023, the New Jersey Department of Environmental Protection finalized the rules that implement the law and are codified in the state’s administrative code. The precedent-setting law included a mandate to deny or condition certain environmental permits based on cumulative impacts in EJ or “overburdened” communities. This groundbreaking law became a model for states and EJ advocates nationwide seeking similar protections, with several states following suit. The process for developing the law and subsequent rules includes critical elements that may be instructive for future policymaking. These elements include a novel methodology for defining EJ communities, combining multiple stressors, and determining cumulative impact thresholds, all developed in close consultation with EJ advocates. This case study of New Jersey’s EJ law focuses on the perspectives of key EJ advocates inside the coalition that helped to develop and pass the law. It details the evolution of the policy from model bill to rulemaking (2000–2023), including (1) diverse policy approaches, (2) the unique political and movement landscape that enabled the successful passage of the law in New Jersey, (3) technical and legal considerations, and (4) coalition building and organizing efforts. This case study highlights the importance of EJ movement leadership in crafting the methodologies and shaping the decision-making and organizing that can implement effective cumulative impacts policies.

INTRODUCTION

For years, the environmental justice (EJ) community in New Jersey and nationally advocated that governmental agencies needed to stop granting pollution permits in communities that already had more than their fair share of pollution. Not only did this practice result in disproportionate pollution loads, but they often occurred in Of Color and low-wealth communities, that is, EJ communities that were particularly vulnerable. The empirical research over the last several decades points to clear patterns of polluting facilities sited in EJ communities. ¹ The term cumulative impacts (CI) is used to describe the risks and impacts caused by the multiple pollutants often inflicted on EJ communities. ²

The EJ community consistently urged that CI should be integrated into the permitting process in a manner that prevented pollution permits from being granted in already overburdened EJ communities. ³ Government officials often pushed back by saying that they didn’t have the legal authority to use CI in such a determinative way and that the science did not yet fully support this regulatory decision-making. ⁴ EJ advocates countered that the current method of regulating pollution by setting individual standards for pollutants ⁵ didn’t account for either the total amount of pollution in a community, the interaction between pollutants, or the interaction between pollutants and social conditions. ⁶ These deficiencies defied both common sense and the precautionary principle ⁷ in the context of a system that is supposed to protect public health. ⁸ EJ advocates encouraged policymakers and environmental agencies to interpret their authority broadly in a manner consistent with protecting public health and to integrate EJ and CI into the permitting process.

This case study documents the movement efforts that helped shape the groundbreaking New Jersey environmental justice law (S. 232). ⁹ This law was the first adopted legislation mandating that applications for certain new pollution permits be denied based on CIs. This case study is authored by members of a coalition of EJ advocates (EJ Coalition) who led efforts related to the development of New Jersey’s EJ policy. ¹⁰ The primary focus of the case study is on the circumstances surrounding the adoption of S. 232, explanations of key substantive elements of the policy, and the development of its implementing regulations. This case study is intended, in part, to support EJ organizations considering developing similar policies in their respective states. Another motivation for detailing this case study is to have EJ advocates who were directly involved in the long history of the development of CI policies document their firsthand perspectives and substantive contributions in the spirit of the EJ movement’s core principle that “we speak for ourselves.” ¹¹

METHODS

This case study reflects elements of community-engaged participatory research ¹² and participatory action research ¹³ methods, which advocates that firsthand experience of the research topics not only shapes the research agenda but also acts as change agents and primary authors of the research. This is an explanatory case study that examines the development of New Jersey’s EJ law (S. 232) and rules. This type of case study is well-suited to explore how and why policy processes took shape over time to produce S. 232 and accompanying rules. ¹⁴ It also sheds light on the key social movement actors, historical context, and key events and decision points. The case study is based on qualitative research derived from a variety of sources including: (1) participant observations from EJ Coalition members, (2) public reports, meeting records, and online content from public agencies (i.e., New Jersey Department of Environmental Protection [NJDEP] website, etc.), and (3) news reports and media content. ¹⁵

DISCUSSION

Development of EJ law S. 232

The EJ coalition has focused on the issue of CI for over two decades. EJ communities in New Jersey faced ongoing permitting struggles related to polluting industries concentrated in overburdened, disproportionately impacted areas where Of Color or low-wealth populations reside. Beginning in the early 2000s, members of the newly formed New Jersey Environmental Justice Alliance (NJEJA) were coalescing around the idea that a permit-by-permit approach to environmental permitting left EJ communities with little protection from disproportionate pollution. In 2000, EJ advocates in South Camden filed a complaint under Title VI of the Civil Rights Act of 1964 against the NJDEP for issuing a permit to the St. Lawrence Cement Company, citing its discriminatory impact on a predominantly Black community already facing disproportionate pollution. ¹⁶ When residents lost this case, it became clear that a more comprehensive, cumulative approach to permitting would be needed. In 2008, NJEJA formed a committee dedicated to developing CI policy and pushing NJDEP to adopt such policies (i.e., NJDEP, Environmental Justice Advisory Council Report, 2009). ¹⁷ During the period in which New Jersey was under an administration that did not support EJ policies (2010–2018), the EJ coalition turned its attention to municipal and federal efforts to advance CI approaches. During this time, NJEJA developed a model ordinance, and the EJ Coalition supported the City of Newark’s efforts to enact the state’s first CI Ordinance in 2016. ¹⁸ Also during this time, NJEJA developed a statewide CI policy, which helped inform Senator Cory Booker’s 2017 EJ bill. ¹⁹

Several factors set the stage for the successful passage of S. 232. In 2018, New Jersey elected Democratic Governor Phil Murphy, which significantly shifted the political landscape in favor of passing EJ legislation. Governor Murphy, like his Democratic predecessors, signed an EJ Executive Order (EO) #23 within the first months of taking office. EJ Coalition members viewed this bill as similar to previously issued EOs that did not sufficiently protect EJ communities. ²⁰ In 2020, two pivotal events dramatically altered the policy context—the global COVID pandemic and the murder of George Floyd in Minneapolis. These two seemingly unrelated events paved the way for demands that racial justice and environmental health be taken more seriously. COVID had a devastating and disproportionate impact on EJ communities in NJ. ²¹ At the same time, frustrations that Black and Brown communities suffered both from unjust police violence and pollution burdens culminated in calls for “Black Lives Matter” in the context of environmental justice. A call that EJ groups had been making for decades. In a sign that the political conditions may be aligning in support of an EJ law, Governor Murphy endorsed Senator Troy Singleton’s proposed EJ Law S. 232 before it was passed through the legislature in a Juneteenth 2020 press event, with one reporter noting, “Murphy rarely weighs in on legislation before it reaches his desk, but he chose to make an unusual public endorsement of a long-stalled environmental justice bill.” ²²

This case study explores several key aspects of S. 232 that the EJ Coalition helped inform, including (1) the definition of an overburdened or EJ community, (2) the right to say “NO” and defining what constitutes a cumulative burden, (3) the universe of facilities subject to the law, (4) new versus renewal and expansion permits, and (5) the “Compelling Public Interest” clause.

Defining overburdened EJ communities

S. 232 does not define EJ communities but instead uses the term “overburdened community” (OBC), which is defined as any census block group in which: “(1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State-recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.” ²³ This term is typically defined using environmental, health, and other vulnerability indicators, but S. 232 uses only sociodemographic indicators, which is usually how an “EJ community” is defined by advocates and other similar bills. ²⁴

The EJ Coalition recommended an expansive community definition that would consider larger swaths of the state’s Of Color and low-wealth populations. During discussions of S. 232, at the behest of the NJDEP, the state recommended a definition that included race, income, and linguistic isolation but required that all these conditions be met cumulatively to be deemed an “overburdened community.” The EJ Coalition demonstrated successfully that this severely narrowed the areas of the state that would be considered under the law by mapping the two proposed definitions and reviewing other policies’ proposed EJ definitions. ²⁵ The EJ Coalition also argued that expanding the definition was a fairer and more equitable approach in the context of permitting policies meant to endow protections for the benefit of public health and the environment. ²⁶ The EJ Coalition also believed that thresholds for each sociodemographic category corresponding with percentages approximating the statewide averages were more equitable. These thresholds ensure that the law considers a more expansive area of the state that may experience cumulative burdens currently or in the future. ²⁷

The right to say no and defining cumulative burdens

One of the most important aspects of the New Jersey EJ law is the ability to say “no” outright to new permits based on CI and EJ concerns. Although previous bills referenced terms such as “may deny” or “shall consider” concerning permit decisions, S. 232 explicitly used the term “shall deny.” This one word, “shall” versus “may,” makes a world of difference in implementation. ²⁸ The term “may” indicates that NJDEP has discretion regarding whether to deny a permit. However, the word “shall” mandates a denial under the conditions described in the legislation. This one word represented a significant victory for the EJ community. The directive “shall deny” left no doubt that NJDEP not only had the authority to deny new permits but was required to do so.

The legislative language referencing CI can be nuanced and subject to divergent interpretations. In early versions of proposed legislation, the term used to describe when to deny a permit in a burdened community was when it posed an “unreasonable risk to the health of residents.” ²⁹ Similarly, Senator Cory Booker’s EJ bill, S.1996, ³⁰ described denials for permits based on “…a reasonable certainty of no harm to the health of the general population.” ³¹ The EJ Coalition feared that NJDEP would use traditional risk assessments to determine the reasonableness of risks. EJ advocates and scholars have critiqued risk-based, quantitative assessments because of their limitations in accounting for the full breadth of impacts vulnerable populations face. ³² Thus, EJ Coalition members urged adopting language that could be more easily defined for the denial of permits that “… cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community…” ³³ This language allows NJDEP to consider how a permit “causes or contributes” to existing stressors based on any contribution and argued this successfully in their September 2022 comment letter: “… the appropriate interpretation of “contributing to” should be that any detectable, absolute amount of a pollutant or density increase related to affected stressor categories…” ³⁴

The other significant language in this passage of S. 232 specifies that a permit is denied when such a permit contributes to existing stressors in the OBC that are “higher” than the geographic point of comparison (GPC). ³⁵ Determining what constitutes a relatively “higher” level of cumulative stressors could be done without conducting complex risk assessments to determine if the risks are significantly or disproportionately higher. Disproportionality also does not have a definitive quantitative threshold that is widely accepted, although it could be interpreted as being well above a level defined as “higher.” The language doesn’t refer to cumulative risks but to “contributions to adverse cumulative environmental or public health stressors.” This meant that the NJDEP could simply use some measure of relative stressor indicators to demonstrate relatively “higher” levels in the rulemaking. The EJ Coalition agreed that this language provided a clearer and more straightforward way to consider the contribution of proposed permits.

Universe of facilities subject to the law

S. 232 includes seven categories of facilities subject to the law. ³⁶ This list of relevant facilities reflects the particular makeup of facilities in New Jersey that have historically been the subject of EJ concerns. One goal for any EJ law should be to ensure that EJ communities can weigh in on the facility and permit types that are major sources of burden both historically and into the future. This can vary significantly across states and regions where different burden profiles and legacies of pollution exist. If CI laws too narrowly define the scope of facilities subject to oversight, they risk leaving overburdened communities unprotected and rendering the laws ineffective.

New versus renewal and expansion permits

The EJ Coalition understood that halting the addition of new facilities in already overburdened communities was a minimal first step toward achieving true environmental justice. Undoing generations of disproportionate, cumulative burdens in EJ communities would require mitigating the existing concentration of burdens already grandfathered into these areas. The inclusion of permit renewals in the law would be an important part of addressing this legacy of pollution in EJ communities. However, including permit renewals was controversial since most existing permits are located in overburdened communities and represent many industries in the state. S. 232 treats new permit applications differently than permit renewals and expansions for existing facilities. For renewal or expansion applications for existing facilities, the law does not allow for the denial of these permits outright but rather for conditions to be placed on the terms of the renewal or expansion. ³⁷

Although outright denying these permits seemed out of reach, the ability to attach substantive conditions to these permits held the promise of potentially ratcheting down existing pollution over time. Typically, renewal applications are pro forma and rarely result in significant modifications to facility operations. S. 232 requires that conditions for renewals or expansions address contributions to stressors but leaves the specifics for how this would happen to the rulemaking phase. It is important to note that the detailed guidance for how existing permits are conditioned, what new or additional discretion agencies have to require these conditions, and how substantive the conditions are, all vitally important details for mitigating the vast majority of the pollution burdens communities face. Due to the regularity of renewal processes (i.e., every 5 years for most major permits) ³⁸ and the volume of permit renewals and expansions, getting these conditions right in the rulemaking phase can help ensure long-term protections are in place for EJ communities.

“Compelling public interest” clause

Early in the discussions of S. 232 with legislators and NJDEP, it was clear that an exemption clause would be included in the bill’s language. EJ Coalition members were wary of such a clause and hoped to narrowly constrict this provision to ensure that the law’s intent was upheld and such a clause did not provide a loophole for industries wanting to continue business as usual. Most significant in these discussions was how economic considerations might factor into any exemption clause, as this posed the greatest “loophole threat” to the bill. Economic forces, shaped by historical patterns of racial discrimination in housing, employment, and other sectors, led to many of the current conditions that co-locate polluting industries in EJ communities. ³⁹ The tropes trading off environmental protection for the promise of economic opportunities rang hollow for EJ communities, who saw this as tantamount to extortion.

Early versions of the law applied the compelling public interest clause in cases that would benefit the general public. The EJ Coalition narrowed the consideration of benefits solely to the host community. The EJ Law was silent on economic considerations but pointed to the interests of the host communities, “T]he department shall… deny a permit for a new facility… except that where the department determines that a new facility will serve a compelling public interest in the community where it is to be located….” ⁴⁰ The EJ Coalition wrote extensively about this topic in their letters to NJDEP, stating, “…NJDEP must avoid a broad or lenient interpretation of “compelling public interest” in its rulemaking. An appropriate “compelling public interest” standard must exclude consideration of the permit applicants’ economic preferences or financial convenience in complying with the EJ Law.” ⁴¹ This clause was also a significant focus of debate during the public comment period. In July of 2022, the largest public hearings on the proposed rules occurred in Newark, with over 200 people primarily representing EJ communities in support of the proposed rule. ⁴² The EJ coalition helped to inform residents from EJ communities about the public hearings and raise awareness about the importance of the EJ law and this particular clause by sharing factsheets and hosting informational meetings.^43,44

The NJDEP’s response to public comments noted that the majority (of more than 500 comments) supported excluding economic considerations from the compelling public interest clause. ⁴⁵ EJ Coalition members sent a letter to the Governor following the heated Newark public hearing urging him to hold steadfast against economic interests, “…We cannot allow economic exemptions… to create loopholes and essentially kill the intent of this important legislative mandate.” ⁴⁶ Ultimately, the final rule upheld the exclusion of economic interests due in part to the outpouring of public opposition.” ⁴⁷

NJDEP implementing rules for S. 232

The adoption of S. 232 was widely recognized in New Jersey and other parts of the nation as an important step forward for CI policy. However, as important as the enactment of the legislation, but probably not as widely acknowledged, was the development and adoption of the regulations that would implement the law. Attention to the regulatory development process was critical for the formation of a robust rulemaking process. ⁴⁸ This commitment consisted of regular stakeholder meetings at the invitation of NJDEP and the EJ Coalition prior to the rule’s release. These meetings focused on the technical aspects of the regulatory scheme. They helped build a shared understanding of the regulatory goals, as well as a sense of trust. The NJDEP also hosted six public meetings ⁴⁹ on the regulations and additional stakeholder meetings to gather input from the public.

The most important aspect of the regulations was developing a methodology for the EJ analysis that determines if a proposed facility would be denied or conditioned. This included defining a set of stressors relating to environmental, health, and social factors that reflected existing conditions commonly burdening EJ communities in New Jersey and choosing the relative indicators for determining permit contributions. Two key aspects of the methodology the EJ Coalition helped to shape included (1) the GPC used to determine the relative burden and (2) the thresholds used to determine if a facility would contribute to elevated stressors.

Geographic point of comparison

The base geographic unit used for comparison in the EJ analysis was the census block group. The GPC, more specifically, was designated as non-overburdened block groups in New Jersey on either the state or county level, whichever was lowest in terms of the total number of stressors above the 50th percentile of a stressor ranking (see below).^50,51 There was also extensive discussion concerning whether the number of stressors in the host community exceeding the 50th percentile should be compared with the median number exceeding the 50th percentile in all block groups or just those block groups located in nonoverburdened communities. What would be a fair comparison upon which to determine whether an area is experiencing “higher” levels of burden?” There was a sense that the non-overburdened block groups were not as vulnerable as the overburdened block groups and, in all likelihood, suffered from lower pollution levels. This was supported by early research conducted by NJDEP for an EJ screening tool that showed that of Color and low-income New Jersey block groups had elevated levels of pollution burdens. ⁵² The EJ coalition argued that the goal should be for overburdened communities to have no more pollution than the average nonoverburdened communities. Therefore, the nonoverburdened communities should be used as the GPC rather than the whole state, and ultimately, this was incorporated into the rule.

Threshold for determining contribution to stressors

NJDEP created a percentile ranking for each of the 26 stressors to support the EJ analysis. The department calculated how many of the 26 stressors were above the 50th percentile for the nonoverburdened block groups on a state and county level. The EJ analysis determines if the proposed facility would contribute to any of the 26 stressors in the “host” block group in which it would be located and how many of the 26 stressors in that block group would be above the 50th percentile of the GPC. ⁵³ A permit would be denied or conditioned if the proposed facility would contribute to stressors being higher in the host block group compared with other block groups. ⁵⁴ This determination is made if: (1) the total number of stressors above the 50th percentile in the host block group is greater than the median number of stressors exceeding the 50th percentile in the GPC, and (2) the proposed facility would contribute to a stressor in the host block group that is above the 50th percentile of the GPC. ⁵⁵

Among the aspects of the analysis extensively debated with NJDEP was what threshold percentile cutoff should be used to define when a stressor is “higher” than the GPC. Initially, NJDEP considered setting the threshold percentile at 90%, but the EJ Coalition argued that the threshold should be set as low as possible to restrict detrimental conditions in OBCs. A 50% threshold seemed fair since it would be at a level no worse than the median stressors in the state or county. The level at which such a threshold should be set is a normative question that requires consideration of what is deemed fair or just rather than an empirical question of what’s technically feasible. Thus, the perspectives of EJ organizations are vital to this determination.

Future changes in the law and regulations

Overall, the EJ Coalition believed that S. 232 and its regulations were well constructed and represented an opportunity to protect EJ communities in New Jersey from additional pollution and even reduce legacy pollution in these areas. However, there were several areas where the law and regulations could be improved upon, including requiring NJDEP to host public hearings instead of or in addition to the applicant ⁵⁶ allowing for denial of applications for renewals and expansions similar to the denial of new applications; ⁵⁷ and removing or further restricting the compelling public interest clause. ⁵⁸ Any one of these suggestions would likely result in improved protection for EJ communities.

Coalition building and organizing

The EJ Coalition that worked extensively on CI in New Jersey had a long history of working collaboratively on EJ issues across the state. This was a strong foundation from which the EJ Coalition catalyzed a broader network of support for CI and honed their expertise on this issue. For example, in 2008, the Coalition members formed a CI committee and worked closely with the NJDEP’s EJ Advisory Council on a CI hearing and report. ⁵⁹ This led NJDEP to develop a nascent CI screening tool. ⁶⁰ Several years later, a second CI committee created a model municipal CI ordinance ⁶¹ and a statewide CI policy. ⁶² The CI section of Senator Booker’s EJ legislation was based, in part, on this statewide CI policy. ⁶³ NJEJA also organized calls with EJ organizations nationally to help build a broad understanding of CI issues and related legislation.

The EJ Coalition also helped inform and raise awareness of CI among allied environmental and social justice groups in New Jersey. Many of the larger state environmental organizations initially supported the EJ law, and began meeting with legislators about the proposed bill without first consulting EJ organizations. The EJ Coalition wrote a letter to these groups requesting that they defer to the leadership of the mostly Of Color EJ organizations to lead on the strategies related to CI since these EJ groups not only had the experience and firsthand knowledge of CI but had also been working on the issue for years. ⁶⁴ The organizations receiving the request, for the most part, responded positively and continued their support of strong EJ policies with clear EJ leadership. Most importantly, the EJ Coalition also helped to build greater understanding and support for the concept of CI policies from social justice and other allied groups outside traditional environmental circles.

Several conditions were consistently present throughout the decades that the EJ community organized around CI. First, the EJ community led the advocacy efforts demanding the creation and implementation of a CI policy. They also helped shape the understanding and development of substantive CI policy concepts. Even without dedicated funding, the EJ community persistently kept the concept of CI alive for decades and was ready with a coherent policy when the opportunity to advance the policy emerged.

CONCLUSION

This case study details the decades-long journey by EJ advocates in New Jersey to realize a substantive environmental justice policy that addresses CI. The study highlights the importance of EJ movement leadership in shaping the substance and processes that result in strong legislative action. The EJ Coalition had a long history of developing and advancing CI policies in New Jersey and beyond. They also worked alongside legislators and regulators to develop substantive policies that could withstand challenges. Some key substantive areas where the EJ Coalition weighed in included defining EJ or overburdened communities and setting the methodologies and thresholds for determining CI.

This case study further exemplifies the importance of advocates preparing policy proposals proactively and building trusted networks of EJ advocates and allies to ready themselves for moments of political opportunity to move substantive policies forward. The EJ Coalition in New Jersey did not rely solely on outside academic or technical experts but cultivated their expertise and combined it with diverse coalitions of allied groups to provide the necessary infrastructure to endure multiple rounds of challenges. Achieving an impactful rather than symbolic policy that can endure requires honing internal expertise, organizing capacity, and persistence by EJ movement leaders.

In reflecting on some of the most critical lessons from the passage of S. 232, it is crucial to remember the importance of strong versus symbolic laws. In a rush to pass legislation, sometimes groups may end up with severely weakened laws with little EJ support or substantive input due to the mindset that “something is better than nothing.” The opportunity cost of this approach is high for EJ communities that continue to suffer from cumulative burdens. Also, weak laws can set a bad precedent, and once a law is in place, it can foreclose possibilities for more transformative policy change in the future. Thus, EJ advocates closest to the issues must consider their willingness to challenge proposals that are not strong enough to provide tangible relief to pollution burdens. Finally, EJ advocates should prepare for legal and implementation challenges to cumulative impact policies, as pressure from industries can mount once permit denials set in. It is critical to maintain robust EJ coalitions that can be vigilant throughout the implementation process to ensure effective, long-term realization of cumulative impact and environmental justice.

AUTHORS’ CONTRIBUTIONS

N.S. contributed to conceptualization, analysis, writing (original draft), review, and editing. A.I.B. contributed to conceptualization, analysis, project administration, resources, supervision, writing (original draft), review, and editing. M.L.-N. contributed to conceptualization, analysis, writing (original draft), and review. M.M. contributed to the conceptualization, analysis, and review.