By Samantha Maldonado
In a groundbreaking win for the environmental justice movement, New Jersey lawmakers on Thursday passed legislation that aims to limit new pollution sources in neighborhoods already shouldering a disproportionate burden.
The bill, more than a decade in the making, advanced in both chambers of the state Legislature during a fraught political climate that has laid bare the connection between historically racist government policies and current environmental and public health inequities.
After years of effort, the twin forces of the coronavirus pandemic and a national outcry to end systemic racism combined to propel the measure to the governor’s desk. Activists hope the bill’s passage will have ripple effects throughout the U.S.
“It’s a perfect storm of terrible things that hopefully opened up a lot of legislators’ eyes,” said Maria Lopez-Nuñez, director of environmental justice and community development at the Ironbound Community Corporation in Newark. “New Jersey’s not seen as the beacon of progressiveness, so if New Jersey can do it then I’m sure other states will be able to do it.”
Gov. Phil Murphy, a Democrat, is expected to sign the bill, as he made the unusual move of endorsing it before it was passed.
The bill, NJ S232 (20R), is the first of its kind in the country. It requires the state Department of Environmental Protection to deny permits for power plants, incinerators, landfills, large recycling facilities and sewage treatment plants in certain minority and impoverished neighborhoods if the projects pose health and environmental risks in conjunction with the threats those communities already face. The agency would be required to make a determination that compares the stressors of that community to those other communities face.
More than a dozen states, including California and New York, require cumulative impact assessments as part of the permitting process. But legal and environmental experts say those provisions lack teeth and can be treated as mere boxes to check because the decision is at the discretion of regulators, not mandated based on conditions.
The New Jersey bill “writes very clearly the line in the sand: if it’s not permissible in an affluent community, it shouldn’t be permissible elsewhere,” said Mad Stano, a senior legal counsel at The Greenlining Institute. “That is not something that we have been able to achieve in policy up until this point.”
Environmental justice advocates nationwide have called the legislation the “holy grail” of the movement and know of no other as strong.
Environmental justice campaigns gained traction in the 1980s, growing out of the civil rights movement and research that showed polluting facilities were more likely to be built in communities of color and low-income neighborhoods.
Those areas came to be known as environmental justice communities, shorthand for their struggles against environmental harm tied to economic and racial injustice.
President Bill Clinton took on the campaign’s mantle in 1994 when he directed federal agencies to address “disproportionately high and adverse human health or environmental effects” of programs, policies and activities on low-income and minority populations.
At that time, only four states had laws or rules pertaining to environmental justice, said Robert Bullard, a professor of urban planning and environmental policy at Texas Southern University and a founder of the environmental justice movement. Within two decades, all 50 states had adopted laws or policies, to varying degrees of effectiveness.
At the federal level, the National Environmental Policy Act was amended in 1997 to require agencies to weigh the cumulative impact of projects before permitting them.
The Trump Administration rolled back the requirements in July. Days later, the Environmental Protection Agency’s watchdog called for a renewed focus on environmental justice, particularly more robust regulatory oversight in burdened communities.
In New Jersey, lawmakers have introduced an environmental justice bill every year since 2008, but the legislation always succumbed to industry opposition.
In 2017, Sen. Cory Booker (D-N.J.), a Democrat and the former mayor of Newark, introduced the federal Environmental Justice Act to codify Clinton’s executive order, a measure that would give regulators power to deny permits based on cumulative impacts. The Booker bill influenced the New Jersey bill sponsored by Democratic Sens. Troy Singleton, Loretta Weinberg and Teresa Ruiz, as well as Assembly members John McKeon, Valerie Vainieri Huttle and Britnee Timberlake.
This year, the state bill was going down a familiar path. After it passed a Senate committee in February, the coronavirus pandemic hit, postponing non-emergency efforts indefinitely.
Then it became clear that people of color were dying of Covid-19 at disproportionately high rates. In April, a study from the Harvard University T.H. Chan School of Public Health found that patients in areas with highly polluted air were more likely to die from the virus than others, confirming another link between environmental degradation and public health.
In May, the country erupted in protests after George Floyd, a 46-year-old Black man, died when a Minneapolis police officer held a knee to his neck for more than eight minutes. “I can’t breathe,” Floyd said, echoing the last words of Eric Garner, a Black man killed in 2014 after a New York City police officer put him in a chokehold.
In Trenton and elsewhere, lawmakers began introducing measures to tackle racial injustice on a structural level.
“Black Lives Matter [connected] ‘I can’t breathe’ when it comes to policing and ‘I can’t breathe’ when it comes to the pollutants choking our communities,” Bullard said.
A month after Floyd’s death, New Jersey lawmakers strengthened the bill’s language to require, rather than allow, regulators to deny permits that would disproportionately cause or contribute to a community’s adverse health and environmental burdens when those burdens were deemed to be greater than those borne by communities elsewhere.
The provisions represent “a quantum leap” in environmental justice legislation, said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law.
“We are in a position of moving away from a social injustice that’s long been embedded in this nation and in the state,” said McKeon, who sponsored the bill. “The protection of the environment and public health is essential to our prosperity.”
But industry leaders say the bill’s scope is too broad — it applies to more than half of New Jersey municipalities — and that the cumulative impact analysis will be difficult, if not impossible, to execute.
The state Chamber of Commerce predicted the law will drive employers and jobs out of the state and stifle economic opportunity. The Waste and Recycling Association and Chemistry Council said their facilities are good corporate neighbors. Lobbyists likened the law to redlining, a government housing segregation policy that discriminated against Black residents.
“This bill is redlining over half the state, at least by population, and saying you cannot put any of these facilities in there,” said Ray Cantor, vice president of government affairs at the New Jersey Business & Industry Association. “It’s going to harm manufacturing and a whole bunch of industries we want to promote, and at the end of the day it’s not going to improve these communities.”
Singleton, a sponsor of the bill, rejected the premise.
“There’s this idea that we cannot have environmental justice and positive growth and economic development that helps communities and generates jobs at the same time,” he said. “These two things are not mutually exclusive.”
Trade unions, too, lobbied against the bill, expressing concerns about government overreach and a possible chilling effect on private investment.
An amendment to the bill gives the DEP some leeway to issue permits if a new project would provide a “compelling public interest” to the community.
“No community in our state should bear the brunt of pollution that is created by industries that serve us all,” Murphy said in July.
Emblematic of these communities is the Ironbound section of Newark, a four-square-mile neighborhood in New Jersey’s largest city that includes an incinerator and more than 100 brownfields, potentially toxic parcels of land.
The neighborhood sits near the seaport and a contaminated stretch of the Passaic River, close to highways and Newark Liberty International Airport. Doremus Avenue, known as the Chemical Corridor, is home to a fat-rendering plant, a sewage treatment site, and a natural gas plant.
“You can’t imagine the amount of frustration. They keep putting stuff in Newark or Camden, and you can’t stop it even though there’s a lot of things there already,” said Nicky Sheats, director of the Center for the Urban Environment at Thomas Edison State University in Trenton.
“All these pollutants together have a detrimental impact on public health,” Sheats said. “You are making a scientific decision if you do nothing.”
The New Jersey DEP will need to write rules for implementing the bill’s requirements, a process that could take more than a year and will make or break the legislation’s effectiveness.
Beverly Wright, executive director of the Deep South Center for Environmental Justice in New Orleans, recently relaunched the National Black Environmental Justice Network and wants to see New Jersey’s bill replicated elsewhere.
“I’m hoping to start a cascade of action in other states,” she said, “working to get a bill that’s as strong as this one is.”