It was enacted to implement 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 prohibits the issuance of an environment permit for a new or extended facility or for a renewal permit for major sources unless the applicant prepares an Environmental Justice Impact Statement and organizes and conducts public hearings in the community that is overburdened. Those communities will be identified by rule. The New Jersey Department of Environmental Protection (NJDEP) is responsible for promulgating the implementing regulations.
During the enactment, much of the attention was focused on the types of facilities that would be subject to this enhanced review and how overburdened communities would get identified. NJDEP has been involved in extensive monitoring over the past year. Stakeholder meeting process. Although permit approval criteria have been carefully considered, it has not been clear what the public participation process should look like.
NJ environmental permit hearings have been relatively quiet over the past decades. Permit applicants rarely appear or present materials. The Hearing Officer is an NJDEP employee who simply declared the hearing opened. He also managed the proceeding in the course of which all those wishing to make comments spoke. Their comments were recorded by a stenographer. The Hearing Officer did not ask nor answer questions. Although participants were allowed to add their comments to the record, they could have simply submitted written comments. The permit decision makers rarely attended hearings and relied only on the hearing transcript and written submissions. The hearing was one-way, with participants providing information but not receiving it.
The Environmental Justice Law significantly modifies the hearing paradigm. The law requires that the permit applicant conducts the public meeting, rather than a NJDEP hearing officer. 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 new structure could increase information availability to the local community, as well as encourage dialog with applicants. Perhaps that was the intent behind the legislative sponsors. The hearing could quickly become adversarial due to the fact that more people who attend hearings on environmental permits are opposed than supportive of permit issuance. This could discourage participation from the public. To ensure that the hearing process is efficient and productive, the NJDEP will need to clearly guide both permit applicants as well as public participants about what is expected at the public hearing.
