Justice Delayed: New Jerseyâ•Žs Battle with Environmental Justice and a Call for the Feds to Follow Suit

KIZIMA 2024

479

Justice Delayed: New Jersey’s Battle with

Environmental Justice and a Call for the Feds to

Follow Suit

Peter Kizima IV

I. INTRODUCTION ........................................................................................................ 480

II. BACKGROUND AND LEGISLATIVE HISTORY ........................................................ 483

A. New Jersey’s History of Environmental Discrimination .... 484

1. Post-Civil War Era ....................................................................... 484

2. 19th Century Industrial Development ............................... 485

3. Discriminatory Housing and Land Use Policy ................. 486

4. Sites of Early Industry Largely Coincide with

Overburdened Communities Due to Discriminatory

Housing Practices ........................................................................ 488

B. Legislative History ............................................................................. 490

C. How the Law Works .......................................................................... 491

D. Requirements for Permit Applications ..................................... 492

E. What Other States are Doing and How it Falls Short ........... 494

III. SUPPORT FOR FEDERAL ENVIRONMENTAL JUSTICE LEGISLATION ................ 495

A. Source of Congressional Authority for a Federal

Environmental Justice Law ............................................................ 496

B. Nondelegation Under Gundy ......................................................... 498

C. Response to Criticisms of the New Jersey Law ...................... 500

1. “Too Much of the State is Overburdened” ......................... 500

2. To the Extent That the Law Merely Calls for Additional

Hearings and Procedures, How Certain are we That it Will

Make a Meaningful Dent in the Number of Permits that are

Ultimately Denied? ..................................................................... 501

3. Environmental Stressors Currently in Place .................... 502

IV. CONCLUSION ............................................................................................................ 502

J.D. Candidate, Seton Hall University School of Law, Class of 2024; B.A., The

Pennsylvania State University, Class of 2021. I would like to thank Professor Angela

Carmella for her assistance in selecting a topic, and Professor Michael Coenen for his

invaluable guidance and feedback throughout the drafting process. Without these

professors, this comment would not be possible. Finally, I would like to thank my

colleagues at the Seton Hall Journal of Legislation and Public Policy for their tireless

efforts in preparing this Comment for publication.

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480 SETON HALL JLPP [Vol. 48:2

I. INTRODUCTION

For far too long, New Jersey’s underserved communities have

borne the brunt of decades of environmental racism that have

sequestered low-income and minority communities in areas of high

pollution in close proximity to noxious properties.

Each year, the

American Lung Association releases its annual “State of the Air” report;

each year, New Jersey’s air quality ranks among the worst in the nation.

Six counties in the state scored an “F” grade for ozone pollution in 2022,

including Camden, Mercer, Hudson, Bergen, and Morris, all of which

have high minority populations.

Due to years of redlining, restrictive

covenants, and other governmental controls on housing, a

disproportionate amount of polluting facilities are located in low-

income and minority communities, drastically negatively impacting

public health.

Respiratory illnesses such as asthma, COPD, and lung

cancer are prevalent in counties with poor air quality.

Ozone and

particulate pollution in the air are harmful to even healthy people, and

See generally N.J. Exec. Order No. 89 (Oct. 29, 2019),

https://nj.gov/infobank/eo/056murphy/pdf/EO-89.pdf; N.J. STAT. ANN. § 13:1D-157

(LexisNexis 2022).

Michael Sol Warren, New Jerseyans Still Breathe Some of the Worst Air in the U.S.,

NJ ADVANCE MEDIA FOR NJ.COM (Apr. 21, 2020, 12:28 PM),

https://www.nj.com/news/2020/04/new-jerseyans-still-breathe-some-of-the-worst-

air-in-the-us.html.

The State of the Air report breaks down data on overall air quality by state and

county. In New Jersey, Bergen, Camden, Hudson, Mercer, Middlesex, and Ocean counties

all received “F” scores for the frequency of “High Ozone Days.” These grades are

calculated using a weighted average of the data collected by ozone monitors in the

respective county. The study also collects data on the demographics of each county. For

the purposes of this Comment, the race demographics are most important. The study

shows that Bergen county has a population of 930,394 and 425,060 people of color

(45.68%); Camden county has a population of 506,809 and 227,527 people of color

(44.89%); Hudson county has a population of 671,666 and 477,308 people of color

(71.06%); Mercer county has a population of 367,239 and 193,641 people of color

(52.73%); Middlesex county has a population of 822,736 and 487,102 people of color

(59.21%); Ocean county has a population of 614,237 and 98,065 people of color

(15.97%). Further, some counties do not monitor the quality of their air and therefore

do not participate in the study. These counties include Union and Summerset which

both have high populations of people of color. See AM. LUNG ASS’N, STATE OF THE AIR (2022).

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Feb. 4, 2024); see generally RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN

HISTORY OF HOW OUR GOVERNMENT SEGREGATED AMERICA 44 (2017).

AM. LUNG ASS’N, supra note 3 (The average minority population of the six counties

that scored an “F” for air quality is 47.72% and the percentage of the population with

either asthma, COPD, or lung cancer is 12.38%.).

KIZIMA 2024

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those with asthma and other lung conditions are particularly at risk.

Since 9 percent of adults and 8.7 percent of children in the state are

asthmatic, air quality should take priority as a matter of public health,

especially where the negative externalities of the state’s polluting

properties have turned deadly.

Between 2010 and 2017, eight children in Newark schools died of

asthma-related deaths.

The prevalence of asthma in Newark is three

times the national average, and the condition hospitalized children at

thirty times the national rate in the area.

For years, students and

parents have fought the operation of a garbage incinerator in the

Ironbound section of Newark, yearning for cleaner air from “[t]he

waste-to-energy plant [that] emits lead, dioxin, and other pollutants”

into the atmosphere.

Nevertheless, the facility continues to run today,

serving twenty-two municipalities in Essex County and others in the

surrounding area with what Covanta describes as a commitment to safe

operation and minimizing environmental impacts.

Recognizing that New Jerseyans breathe some of the worst air in

the country, Governor Murphy signed the New Jersey Environmental

Warren, supra note 2.

New Jersey State Health Assessment Data, Complete Health Indicator Report of

Asthma Hospitalizations and Emergency Department Visits, NJSHAD, https://www-

doh.state.nj.us/doh-

shad/indicator/complete_profile/NJEPHTAsthmaHosp.html#:~:text=In%20New%20J

ersey%2C%20over%20600%2C000,estimated%20to%20have%20asthma%20curren

tly.

Devna Bose, ‘It’s Killing Children And No One Is Talking About It’: Asthma Is Taking

A Steep Toll On Newark’s Students And Their Schools, CHALKBEAT NEWARK (Dec. 17, 2019,

2:02 PM), https://newark.chalkbeat.org/2019/12/17/21055583/it-s-killing-children-

and-no-one-is-talking-about-it-asthma-is-taking-a-steep-toll-on-newark-s-stude

(discussing community respiratory issues stemming from poor air quality in Newark,

and explaining that Newark is an overburdened community under the statute with

multiple polluting facilities).

Id.

Karen Yi, ‘Our Air is Not Good Enough.’ Kids Fight Plant Burning 2.8K Tons of Trash

Every Day, NJ ADVANCE MEDIA FOR NJ.COM (Dec. 9, 2018, 11:08 AM),

https://www.nj.com/news/erry-2018/12/9799c118c54580/our-air-is-not-good-

enough-kid.html.

COVANTA, https://www.covanta.com/where-we-are/our-facilities/essex (last

visited Jan. 21, 2024). Covanta is a multinational waste management services company

that operates seven waste management facilities in New Jersey including two in

Paterson, one in Camden, and, as mentioned above, one in Newark. As discussed later

in this Comment, all of these stated facilities are located in what the New Jersey

Environmental Justice Law considers an overburdened area.

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482 SETON HALL JLPP [Vol. 48:2

Justice Law on September 18, 2020.

This first-in-the-nation legislation

requires special consideration for permits to construct “facilities” or

nuisance properties if their proposed location falls within an

“overburdened community.”

According to the statute, a facility

constitutes any property that is a major source of air pollution, water

pollution, and other uses of property commonly understood to be

harmful to the surrounding communities.

An “overburdened

community” is identified by examining the most recent United States

Census and discerning census block groups 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.”

This legislation aims to help ease the negative health impacts that

New Jersey’s most vulnerable have endured for years.

But this new

legislation is ruffling feathers in the boardrooms that operate some of

the state’s most prosperous industries.

Additionally, some feel this

solution is too little too late, as generations of individuals will continue

to live with the negative health implications of environmental racism.

Conversely, advocates of the law champion it as a groundbreaking

accomplishment for environmental justice in a state where the lines

Warren, supra note 2; GOVERNOR MURPHY SIGNS HISTORIC ENVIRONMENTAL JUSTICE

LEGISLATION, https://www.nj.gov/governor/news/news/562020/20200918a.shtml#

(last visited Feb. 15, 2024).

N.J. STAT. ANN. § 13:1D-157 (LexisNexis 2022); GOVERNOR MURPHY SIGNS HISTORIC

ENVIRONMENTAL JUSTICE LEGISLATION,

https://www.nj.gov/governor/news/news/562020/20200918a.shtml# (last visited

Feb. 15, 2024).

N.J. STAT. ANN. § 13:1D-158 (LexisNexis 2022) (“‘Major source’ means a major

source of air pollution as defined by the federal ‘Clean Air Act,’ 42 U.S.C. § 7401 et seq.,

or in rules and regulations adopted by the department pursuant to the ‘Air Pollution

Control Act,’. . . .”).

Id.

See Michael Sol Warren, Murphy Backs Plan to Protect N.J. Low-Income

Communities from More Pollution, NJ ADVANCE MEDIA FOR NJ.COM (June 19, 2020, 4:40 PM),

https://www.nj.com/politics/2020/06/murphy-backs-plan-to-protect-nj-low-income-

communities-from-more-pollution.html (“For years, proud residents of countless cities

have been afterthoughts to development that did not enrich them and in fact hurt

them.”).

See Zach Bright, New Jersey Debates ‘Overburdened’ in Environmental Justice Rule,

BLOOMBERG LAW (Aug. 10, 2022, 5:30 AM),

https://news.bloomberglaw.com/environment-and-energy/new-jersey-debates-

overburdened-in-environmental-justice-rule.

See Bose, supra note 8 (discussing community respiratory issues stemming from

poor air quality in Newark). Newark is an overburdened community under the statute

with multiple polluting facilities.

KIZIMA 2024

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between the haves and have-nots are rather stark and apparent.

While

other states like California and Oregon have recently taken steps to

confront environmental racism, no state has gone as far as New Jersey

has in this area, at least on paper.

While other states require reports

conducted before the construction of a facility to include an

environmental justice component, the New Jersey Environmental

Justice Law involves the denial of a permit should such a report find that

the facility could disproportionately impact an overburdened

community.

Regardless of the law’s novelty, its message and intent are

clear: no longer will the most vulnerable bear the brunt of the state’s

pollution.

Part II of this Comment will set forth a brief history of

environmental injustice in New Jersey and its impacts on citizens.

Examining the history of industrialization in the state, discriminatory

housing practices that clustered minority communities in undesirable

areas, and the legislative history of environmental justice in New Jersey

illustrate the need for environmental justice reform. Part III will discuss

how this law will help move and prevent future polluting properties

from being constructed in these areas, and it will call for similar

legislation on the federal level. Since it is clear that environmental

justice is a pressing issue for states all around the country, federal

intervention is required to ensure that all communities, coast to coast,

can fully realize their American dream without the increased burden of

pollutants. Finally, Part IV will conclude by reaffirming the importance

of environmental justice legislation in promoting a more inclusive and

fair society in New Jersey and around the country.

II. BACKGROUND AND LEGISLATIVE HISTORY

This part will discuss the history of environmental discrimination

in New Jersey by examining historical records of industrialization in the

state and how discriminatory housing policies at the state and federal

level clustered minority communities in what are today’s overburdened

See generally New Jersey Passes an Environmental Justice Law with Teeth, ENV’T SCI.

ASSOCS. (Oct. 14, 2020), https://esassoc.com/news-and-ideas/2020/10/new-jersey-

passes-an-environmental-justice-law-with-teeth/; see also Kayla Greenawalt, Come Hell

or High Water: Protecting New Jersey’s “Overburdened” Coastal Communities Through

Environmental Justice, 74 RUTGERS U. L. REV. 843, 853 (2022).

See id.

Greenawalt, supra note 19, at 859; N.J. STAT. ANN. § 13:1D-160(a)(3) (LexisNexis

2022).

Warren, Murphy Backs Plan to Protect N.J. Low-Income Communities from More

Pollution, supra note 16.

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484 SETON HALL JLPP [Vol. 48:2

areas. Additionally, this section will discuss the overwhelming

abundance of current polluting facilities in these areas. This discussion

will demonstrate that pollution in overburdened communities is not a

matter of coincidence. The historical analysis highlights the necessity

and importance of environmental justice legislation as a matter of

corrective justice to right the wrongs of past discrimination against

minority communities. Finally, the section closes with a discussion of

the legislative history of the New Jersey Environmental Justice Law and

an overview of how the law will improve the lives of New Jersey’s

minority communities.

A. New Jersey’s History of Environmental Discrimination

1. Post-Civil War Era

Not unlike the nation as a whole, New Jersey has a long and

troubled history of discrimination against minority groups.

Between

1865 and 1870, the Thirteenth, Fourteenth, and Fifteenth Amendments

to the U.S. Constitution, often called the Reconstruction Amendments,

were ratified.

New Jersey, however, struggled to vote in favor of

ratification, showing continued deference and support to the institution

of slavery and denying African Americans legal protection from slavery

and the right to vote.

In 1865, New Jersey refused to ratify the

Thirteenth Amendment.

On January 23, 1866, Governor Ward signed

a state Constitutional Amendment, finally ending slavery in the state,

making it the last to do so.

Additionally, New Jersey, following the

ratification of the Fifteenth Amendment, “was one of the first northern

See generally Noelle Lorraine Williams, New Jersey, The Last Northern State to End

Slavery, N.J. HIST. COMM’N, https://nj.gov/state/historical/his-2021-juneteenth.shtml

(last visited Feb. 4, 2024).

The Reconstruction Amendments: Thirteenth Amendment,1865, Fourteenth

Amendment, 1868, Fifteenth Amendment, 1870, BILL OF RTS INST.,

https://billofrightsinstitute.org/activities/the-reconstruction-amendments-

thirteenth-amendment-1865-fourteenth-amendment-1868-and-fifteenth-amendment-

1870 (last visited Feb. 4, 2024).

JAYNE JOHNSON ET AL., N.J. INST. FOR SOC. JUST., ERASING NEW JERSEY’S RED LINES, REDUCING

THE RACIAL WEALTH GAP THROUGH HOMEOWNERSHIP AND INVESTMENT IN COMMUNITIES OF COLOR

(2020); SCOTT NOVAKOWSKI, N.J. INST. FOR SOC. JUST., WE ARE 1844 NO MORE: LET US VOTE;

GILES R. WRIGHT, AFRO-AMERICANS IN NEW JERSEY: A SHORT HISTORY 29 (1989) (In 1866, a

Republican governor and legislature ratified the Fourteenth Amendment, but that

ratification was later rescinded in 1868 after the Republicans lost control. In 1870, the

Legislature outright rejected the Fifteenth Amendment).

Williams, supra note 23.

KIZIMA 2024

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states to restrict the vote to white men” in yet another effort to

disenfranchise minority groups.

2. 19th Century Industrial Development

New Jersey once hosted robust pockets of industry in Paterson,

New Brunswick, Trenton, and Camden that today coincide with

clustered neighborhoods of overburdened communities.

Following

the War of 1812, Paterson hosted a growing number of businesses

producing goods such as heavy machinery, textiles, and other metal

products.

South of Paterson, New Brunswick, was the home of

manufacturing plants producing rubber and wallpaper.

Around the

same time, Paterson saw growth in the industry, “Trenton’s economy

was strengthened by the completion of the Delaware and Raritan Canal

conveying coal and iron ore . . . [which] facilitated its emergence as a

nationally prominent center for iron refining and metalworking.”

Industry was also thriving in Camden due to its location between the

Delaware and Cooper Rivers and the city’s proximity to Philadelphia.

As Camden’s population grew, so did the glassmaking and

ironworking industries in the 1800s.

This population growth

prompted the construction of blocks of rowhouses to house the factory

workers.

Because of this increase in population, streets became the

sites for waste disposal, prompting the construction of waste disposal

sites in heavily populated areas.

During this time, the African

American population of New Jersey increased by 46.6 percent from

1890 to 1900.

Johnson, supra note 25; Novakowski, supra note 25.

See generally N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment

and Protection Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Feb. 4, 2024).

19th Century Industrial Development, N.J. ALMANAC,

https://www.newjerseyalmanac.com/19th-century-industrial-development.html (last

visited Feb. 4, 2024).

Id.

See generally Industrialization, https://www.ci.camden.nj.us/wp-

content/uploads/2020/07/Industrialization.pdf (last visited Feb. 4, 2024).

Id.

Environment– Waste Disposal History, N.J. ALMANAC,

https://www.newjerseyalmanac.com/environment—waste-disposal-history.html (last

visited Feb. 4, 2024).

U.S. CENSUS BUREAU, TWELFTH CENSUS OF THE UNITED STATES, TAKEN IN THE YEAR 1900 cxii

(1901).

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486 SETON HALL JLPP [Vol. 48:2

3. Discriminatory Housing and Land Use Policy

As commerce thrived and minority populations moved into the

state, discriminatory housing practices ensured that minority

communities stayed clustered in working-class neighborhoods around

industrial properties.

Then, with homeowners reeling from The Great

Depression, the Roosevelt administration created the Home Owners’

Loan Corporation, also known as the HOLC.

This organization

purchased interest-only mortgages ripe for default and issued new

amortized mortgages over longer timeframes at favorable interest rates

to save the working and middle class.

Local real estate agents, bound

by their code of ethics to uphold segregation, conducted neighborhood

assessments on behalf of the HOLC to determine the default risk of

individuals in certain areas.

Based on these findings, the HOLC

determined whether or not to finance homes in the region.

In addition,

these agents created maps outlining areas safe for the HOLC to service

by outlining safe neighborhoods in green and risky neighborhoods in

red.

Regardless of the neighborhood’s demographic makeup, the agents

outlined any area containing African American homes in red.

These

distinctions between racial communities led to minimal, if any, lending

opportunities in black neighborhoods and decreased property values.

Lacking the resources to relocate and watching lending opportunities

and federal assistance flee to white neighborhoods, those living within

the red lines witnessed the gradual demise of their community’s living

quality.

Further, the Federal Housing Authority used the redline maps

to ensure federal mortgage insurance programs were unavailable to

disadvantaged communities within the red lines.

A service called

See generally ROTHSTEIN, supra note 4, at 44.

ROTHSTEIN, supra note 4, at 63.

ROTHSTEIN, supra note 4, at 63–64.

ROTHSTEIN, supra note 4, at 64.

Johnson, supra note 25; Sarah Mikhitarian, Home Values Remain Low in Vast

Majority of Formerly Redlined Neighborhoods, ZILLOW (Apr. 25, 2018),

https://www.zillow.com/research/home-values-redlined-areas-

19674/?mod=article_inline.

Johnson, supra note 25; Tracy Jan, Redlining Was Banned 50 Years Ago. It’s Still

Hurting Minorities Today, WASH. POST (Mar. 28, 2018),

https://www.washingtonpost.com/news/wonk/wp/2018/03/28/redlining-was-

banned-50-years-ago-its-still-hurting-minorities-today/.

Johnson, supra note 25; ROTHSTEIN, supra note 4, at 63–64.

KIZIMA 2024

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“Mapping Inequality” uploaded the original HOLA maps to an interactive

website that shows large portions of Newark, Camden, and Trenton

within the infamous red lines.

Additionally, racially restrictive covenants severely limited the

neighborhoods where those living within the redlines could move.

racially restrictive covenant is an element of the deed instrument that

prevents a property owner from selling or transferring property

ownership to a member of a particular race.

For example, a 1925

covenant from a deed for a northern New Jersey property read, “[t]here

shall not be erected or maintained without the written consent of the

party . . . any structure other than a dwelling for people of the Caucasian

Race.”

This practice continued long after the Supreme Court held in

Buchanan v. Warley in 1917 that racially exclusionary zoning by

municipalities was unconstitutional because the decision did not

pertain to private agreements between individuals, like deeds.

It was

not until the Supreme Court’s 1948 Shelly v. Kraemer decision, which

held judicial enforcement of private restrictive covenants

unconstitutional, that enforcement of these agreements ended.

Thus, years of economic discrimination from banks and the

inability to move to areas restricted to those of the Caucasian Race

entrenched minority communities inside the redlines.

As a result,

many of these neighborhoods now fall under the statutory definition of

an overburdened community.

The New Jersey Environmental Justice

Law aims to address the damage caused by these government-endorsed

practices as a measure of corrective justice for those profoundly

wronged communities.

Colleen O’Dea, As Redlining Persists, Camden Area Among Hot Spots in U.S. for

Mortgage Denials, NJ SPOTLIGHT (Feb. 16, 2018),

https://www.njspotlight.com/2018/02/18-02-16-as-redlining-persists-camden-area-

among-hot-spots-in-us-for-mortgage-denials/; MAPPING INEQUALITY, REDLINING IN NEW

DEAL AMERICA, https://dsl.richmond.edu/panorama/redlining/#loc=5/39.1/-94.58

(last visited Feb. 2, 2024).

See ROTHSTEIN, supra note 4, at 77–78.

Lauren A. Schaffer, A Statutory Analysis On Racially Restrictive Covenants, 53 U.

TOL. L. REV. 351, 353 (2021).

ROTHSTEIN, supra note 4, at 78.

Johnson, supra note 25; Buchanan v. Warley, 245 U.S. 60, 81–82 (1917).

Johnson, supra note 25; see also Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

See generally Johnson, supra note 25.

See generally ENVIRONMENTAL JUSTICE LAW, RULES AND POLICY, https://dep.nj.gov/wp-

content/uploads/ej/docs/ej-law.pdf (last visited Feb. 4, 2024).

See generally Warren, supra note 16.

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488 SETON HALL JLPP [Vol. 48:2

4. Sites of Early Industry Largely Coincide with

Overburdened Communities Due to Discriminatory

Housing Practices

According to research compiled by the New Jersey Department of

Environmental Protection, approximately three hundred and thirty-

eight municipalities in the state contain overburdened communities per

the statute.

This characterization means that 4,976,161 individuals of

the state’s 9,288,994 total population are affected by this legislation.

The data discussed below confirms the story of how the more significant

environmental burden placed on minority communities in the state

results from government-endorsed discriminatory housing practices in

the state.

Trenton and surrounding municipalities in Mercer County, New

Jersey, are considered overburdened, with 52.5 percent of the

population categorized as low income, a 77.9 percent minority

population, and 9.9 percent of households with limited English

proficiency.

These communities host five major sources of air

pollution, three solid waste recycling facilities that receive greater than

one hundred tons of waste per day, eight scrap metal facilities, and two

transfer stations.

Neighboring Princeton, while still containing

pockets of overburdened communities, hosts only a 5.3 percent low-

income population and 1.9 percent of the population having limited

English proficiency.

Unsurprisingly, Princeton is the home of only two

ENVIRONMENTAL JUSTICE LAW, RULES AND POLICY, https://dep.nj.gov/ej/communities/

(last visited Feb. 2, 2024).

Id.; Population - Overview, N.J. ALMANAC,

https://www.newjerseyalmanac.com/population.html (last visited Jan. 21, 2024) (The

population data used by the New Jersey Almanac is sourced from the United States

Census Bureau’s 2020 census).

See generally ENVIRONMENTAL JUSTICE, https://dep.nj.gov/ej/ (last visited Feb. 18,

2024).

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (

last visited Feb. 2, 2024); ENVIRONMENTAL JUSTICE LAW, RULES AND POLICY,

https://www.nj.gov/dep/ej/policy.html (last visited Feb. 2, 2024) (Low income

households are those “at or below twice the poverty threshold as determined by the

United States Census Bureau” and limited English proficiency is defined as a household

“without an adult that speaks English ‘very well’ according to the United States Census

Bureau.”).

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Feb. 2, 2024).

Id.

KIZIMA 2024

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major sources of air pollution and zero other types of facilities that

developers saddled Trenton’s citizens with.

The eastern part of Essex County, which encompasses Newark, the

Oranges, Irvington, and parts of Bellville, are almost all considered

overburdened communities.

For example, Newark alone hosts

twenty-six scrap metal facilities, fourteen major sources of air pollution,

five transfer stations, a resource recovery facility or incinerator, a

sewage treatment plant, and a solid waste facility receiving greater than

one hundred tons of waste per day.

The resource recovery facility, in

particular, is located in a neighborhood where 61.2 percent of the

population is categorized as low-income.

On the other hand,

neighboring Maplewood, New Jersey, does not contain a single

overburdened community and likewise does not host a single facility

considered problematic under the statute.

Paterson is in a similar situation to Newark. The entire population

of Paterson is considered overburdened under the framework of the

statute.

As is customary, the citizens of Paterson are subject to the

negative repercussions of hosting a remarkable number of polluting

facilities.

These include twelve scrap metal facilities, three major

sources of air pollution, four transfer stations/material recovery

facilities, and one solid waste recycling facility receiving more than one

hundred tons of waste daily.

Meanwhile, neighboring Wayne, New

Jersey, absent any overburdened communities except two low-income

areas that border Paterson, hosts one auto parts store considered a

scrap facility.

This distribution trend of statutorily problematic

facilities and their location in or near overburdened communities

continues throughout the state in areas such as Vineland, Bayonne,

Id.

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Sept. 22, 2022).

Id.

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Feb. 2, 2024).

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490 SETON HALL JLPP [Vol. 48:2

Passaic, and most of Hudson County.

It is hard to ignore the real-life

implications of the political power dynamics that have allowed these

polluting facilities to exist almost exclusively in communities of

vulnerable populations and its effects on these areas. Thankfully, the

legislature has decided to intervene.

B. Legislative History

Advancement of the civil rights movement—and research showing

polluting facilities were more likely built in low-income neighborhoods

and communities of color—allowed the environmental justice

movement to gain traction in the 1980s.

In 1994, feeling the pressure

of the growing pro-environment trend, President Bill Clinton addressed

environmental injustices by directing federal agencies to address

“disproportionately high and adverse human health or environmental

effects of programs, policies, and activities on low-income and minority

populations.”

This sentiment caused the U.S. Congress to amend the

National Environmental Policy Act in 1997 to require agencies to

incorporate an analysis of a project’s impacts on the community into the

permitting process.

Every year since 2008, New Jersey lawmakers have introduced an

environmental justice bill at the state level that has routinely

succumbed to industry pushback.

Cory Booker, the former mayor of

Newark and Senator for New Jersey, introduced environmental justice

legislation at the federal level in 2017.

This bill, called the

Environmental Justice Act, sought to codify Clinton’s 1994 executive

order and allow environmental regulators to deny permits for projects

based on the project’s cumulative impacts on the community.

Unfortunately, this bill never made it past the introduction phase.

This

stall, coupled with the rollback of regulations by the Trump

Id.

Samantha Maldonado, How a Long-Stalled ‘Holy Grail’ Environmental Justice Bill

found its Moment in New Jersey, POLITICO, https://www.politico.com/states/new-

jersey/story/2020/08/27/new-jersey-legislature-sends-groundbreaking-

environmental-justice-bill-to-governors-desk-1313030 (last visited Feb. 2, 2024).

Id.

Maldonado, supra note 73.

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Administration, leaves a legislative gap at the federal level concerning

environmental justice that warrants attention.

In 2019, Governor Murphy signed Executive Order No.89.

This

order called for, among other things, a climate resilience strategy

recognizing that “minority and low-income communities are

disproportionately affected by climate change, including by the health

effects of higher temperatures and increased air pollution” making good

on promises to promote equality and combat pollution.

During the

2020 to 2021 session of the New Jersey State Legislature, six state

senators introduced bill S232.

After moving through the state

legislative process, Governor Murphy signed S232 into law on

September 18, 2020.

C. How the Law Works

This section will analyze the law and its components to show that

denying permits in overburdened areas will incentivize the

construction of such facilities in other parts of the state. Further, the law

will slowly lead to the phasing out of currently operating facilities as

these facilities’ major source permits expire.

As mentioned above, the

act pertains to the construction, expansion, or renewal of a major source

permit for both proposed facilities and currently operating facilities

located in whole or in part in an overburdened community.

A more

comprehensive list of the facilities to which the statute pertains includes

any:

(1) Major source of air pollution; (2) resource recovery facility

or incinerator; (3) sludge processing facility, combustor, or

incinerator; (4) sewage treatment plant with a capacity of

more than 50 million gallons per day; (5) transfer station or

other solid waste facility, or recycling facility intending to

receive at least 100 tons of recyclable material per day; (6)

Maldonado, supra note 73.

N.J. Exec. Order No. 89 (Oct. 29,

2019), https://nj.gov/infobank/eo/056murphy/pdf/EO-89.pdf.

Greenawalt, supra note 21; N.J. Exec. Order No. 89 (Oct. 29, 2019),

https://nj.gov/infobank/eo/056murphy/pdf/EO-89.pdf.

S. S232, 219th Leg., 2020 Sess. (N.J. 2020).

See generally EPA, Who Has to Obtain a Title V Permit?,

https://www.epa.gov/title-v-operating-permits/who-has-obtain-title-v-permit (last

visited Feb. 7, 2023) (“A major source has actual or potential emissions at or above the

major source threshold for any ‘air pollutant.’ The major source threshold for any air

pollutant is 100 tons/ year . . .”).

N.J. Stat. § 13:1D-160(a) (LexisNexis 2022).

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492 SETON HALL JLPP [Vol. 48:2

scrap metal facility; (7) landfill, including, but not limited to, a

landfill that accepts ash, construction or demolition debris, or

solid waste; or (8) medical waste incinerator . . . .

The overburdened nature of a community is determined by

examining the most recent United States Census and identifying census

block groups 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.”

The 2020 census guidelines considered one-,

two-, three- and four-person household poverty lines to be $12,760,

$17,240, $21,720, and $26,200, respectively, for the forty-eight

contiguous states and the District of Columbia.

Therefore, since this

statute defines “low-income” as households who earn less than or equal

to “twice the poverty threshold as determined by the United States

Census Bureau,” the statute considers one-, two-, three- and four-person

household poverty lines to be $29,160, $39,440, $49,720, $60,000,

respectively.

Additionally, the department must maintain a list of

overburdened communities in the state, update that information at least

once every two years, and notify municipalities of their status.

D. Requirements for Permit Applications

The statute defines permits subject to the law as “any individual

permit, registration, or license issued by the department to a facility

establishing the regulatory and management requirements for a

N.J. STAT. ANN. § 13:1D-158 (LexisNexis 2022) (“‘Major source’ means a major

source of air pollution as defined by the federal ‘Clean Air Act,’ 42 U.S.C. § 7401 et seq.,

or in rules and regulations adopted by the department pursuant to the ‘Air Pollution

Control Act,’. . .”).

§ 13:1D-158 (LexisNexis 2022) (Low-income households are those “at or below

twice the poverty threshold as determined by the United States Census Bureau” and

limited English proficiency is defined as a household “without an adult that speaks

English ‘very well’ according to the United States Census Bureau.”); see N.J. Dep’t of Env’t

Prot., Environmental Justice Mapping, Assessment and Protection Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Feb. 4, 2024).

U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain

Federal Programs, U.S. DEP’T OF HEALTH AND HUM. SERV.,

https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines/prior-

hhs-poverty-guidelines-federal-register-references/2020-poverty-guidelines (last

visited Feb. 4, 2024).

FEDERAL POVERTY LEVEL, https://www.healthcare.gov/glossary/federal-poverty-

level-fpl/ (last visited Feb. 18, 2024).

N.J. STAT. ANN. § 13:1D-159 (LexisNexis 2022).

KIZIMA 2024

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regulated activity” under certain state laws.

Permits do not include

“any authorization or approval necessary to perform a remediation . . .

or any authorization or approval required for a minor modification of a

facility’s major source permit for activities or improvements that do not

increase emissions.”

In order for a permit to be considered for a

proposed facility “located, or proposed to be located, in whole or in part,

in an overburdened community,” the applicant must complete several

requirements.

First, the applicant must prepare an environmental justice impact

statement.

This statement intends to identify potential public health

and environmental implications that the facility poses to the area.

Additionally, this statement should include ways to avoid these negative

impacts on the community.

The proposed developer must deliver the

statement to the proposed hosting municipality at least sixty days

before the required public hearing.

Arguably, the most important part of the statute is the requirement

to hold a public hearing.

The law requires that the permit applicant

publish notice of the hearing in at least two newspapers circulating in

the area, including at least one non-English newspaper, to bridge the

language barrier in households with limited English proficiency.

100

The

proposed developer is then required to submit the notice to the

municipality, which, in turn, will publish the notice on its website and in

other materials circulated around the community.

101

At the hearing, the

statute requires the permit applicant to accept oral and written

comments from any interested party, transcribe the hearing, and submit

the transcription and written arguments to the Department of

N.J. STAT. ANN. § 13:1D-158 (LexisNexis 2022). The state laws in question are The

Solid Waste Management Act, C.13:1E-1; section 17 of C.13:1E-26; the Comprehensive

Regulated Medical Waste Management Act, C.13:1E-48.1 et al.; The New Jersey

Statewide Mandatory Source Separation and Recycling act, C.13:1E-99.11; the Pesticide

Control Act of 1970, C.13:1F-1; The Wetlands Protection Act of 1970, C.13:9A-1 et seq.;

the Highlands Water Protection and Planning Act, C.13:20-1; The Coastal Area Facility

Review Act; C.13:19-1 et seq.; the Air Pollution Control Act of 1954, C.26:2C-1 et seq.;

the Water Supply Management Act, C.58:1A-1 et al.; the Water Pollution Control Act,

C.58:10A-1 et seq.; or the Flood Hazard Area Control Act, C.58:16A-50 et seq.

N.J. STAT. ANN. § 13:1D-158 (LexisNexis 2022).

N.J. STAT. ANN. § 13:1D-160(a) (LexisNexis 2022).

§ 13:1D-160(a)(1) (LexisNexis 2022).

Id.

§ 13:1D-160(a)(2) (LexisNexis 2022).

§ 13:1D-160(a)(3) (LexisNexis 2022).

100

Id.

101

Id.

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494 SETON HALL JLPP [Vol. 48:2

Environmental Protection.

102

The department takes these statements

and evaluates the permit to determine if approval is in the best interests

of the overburdened community.

103

The New Jersey Department of

Environmental Protection is instructed to deny the permit for a new or

existing facility if, after a forty-five-day period, the department, in

considering all relevant information required by the statute, determines

that the new facility would subject the overburdened community to

higher adverse cumulative environmental or public health stressors

than those borne by others.

104

E. What Other States are Doing and How it Falls Short

Exampling other states’ attempts at mitigating environmental

injustices illustrates the need for federal action on the matter. A few

other states, including California and Virginia, have sought to amend

their land use laws to incorporate environmental justice goals.

105

Still,

none go nearly as far as the New Jersey Law concerning mandatory

denial.

106

Regardless, the fact that other states recognize the disparate

impacts of environmental injustice shows that corrective measures are

needed around the country.

The California land use law promotes the inclusion of

environmental injustice considerations in a county or municipality’s

general plan.

107

A general plan guides a town or county’s local

development and investment.

108

Unfortunately, this law falls short

because California relied on the assumption that towns and counties

would amend their general plans to comply with the law in a way that is

advantageous to disadvantaged communities without implementing an

enforcement mechanism.

109

Instead of operating as a hard and fast rule

like the New Jersey Statute, the California bill acts more as a guideline

for towns as they look to future plans concerning zoning, the regulation

of open space, and the location of certain buildings, with no mention of

102

Id.

103

Id.

104

§ 13:1D-160(b) (LexisNexis 2022); § 13:1D-160(c)–(d) (LexisNexis 2022); §

13:1D-161 (LexisNexis 2022).

105

Greenawalt, supra note 21, at 854.

106

Greenawalt, supra note 19, at 855; see also H.B. 2488, 81st Legis. Assemb., Reg.

Sess. (Or. 2021); VA. CODE. ANN. §§ 2.2-2699.8–12 (West 2020).

107

Greenawalt, supra note 21, at 855; CAL. GOV’T CODE § 65302(a), (h)(1) (West 2022).

108

Greenawalt, supra note 21, at 855.

109

Greenawalt, supra note 21, at 855; see Emily C. Dooley, Environmental Justice

Becomes Part of California City Planning, BLOOMBERG L. (Aug. 27, 2020, 6:00

AM), https://news.bloomberglaw.com/environment-and-energy/environmental-

justice-becomes-part-of-california-city-planning.

KIZIMA 2024

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permitting restrictions.

110

Nonetheless, local governments will now

identify, as part of their master plan, ways plan, ways to promote civil

engagement, reduce health risks, and prioritize improvements that

address the needs of disadvantaged communities within their

borders.

111

While this measure is a step in the right direction, it remains

to be seen how much of the state will voluntarily participate.

112

The Virginia General Assembly has passed legislation regarding

climate change and environmental justice issues in the last couple of

years.

113

Part of these efforts was to expand the mission of the Virginia

Department of Environmental Quality’s mission to include “further[ing]

environmental justice and enhance[ing] public participation in the

regulatory and permitting process.”

114

Further, the Virginia Counsel on

Environmental Justice, an advisory board comprised of individuals from

public health organizations, civil rights groups, and Native American

tribes, was added to the state’s executive branch to provide policy

recommendations on protecting vulnerable communities from the

disproportionate effects of pollution.

115

Unfortunately, the work this

council does is purely advisory.

116

The statute utilizes language such as

“integrating environmental justice considerations” and “recommending

statutory . . . consideration[s]” which show the law’s limited ability to

bring about change.

117

III. SUPPORT FOR FEDERAL ENVIRONMENTAL JUSTICE LEGISLATION

Civil rights have been and continue to be a prominent issue in the

United States, and while states likely have a better hold on how to

regulate land use, civil rights legislation has been primarily left to the

federal government.

118

The federal government has been able to bring

about sweeping change with civil rights legislation, such as the Civil

110

CAL. GOV’T CODE § 65302(a) (West 2022).

111

Emily C. Dooley, Environmental Justice Becomes Part of California City Planning,

BLOOMBERG L. (Aug. 27, 2020, 6:00 AM), https://news.bloomberglaw.com/environment-

and-energy/environmental-justice-becomes-part-of-california-city-planning.

112

See generally Greenawalt, supra note 19, at 855–56.

113

Tyler Demetriou, Reinvigorating the Virginia Constitution’s Environmental

Provision, 40 VA. ENVTL. L.J. 66, 86 (2022).

114

Demetriou, supra note 113, at 87; VA. CODE ANN. § 10.1-1183 (LexisNexis 2022).

115

VA. CODE ANN. § 2.2-2699.9 (LexisNexis 2022).

116

VA. CODE ANN. § 2.2-2699.12 (LexisNexis 2022).

117

VA. CODE ANN. § 2.2-2699.12(1)(a),(f) (LexisNexis 2022).

118

U.S. DEP’T OF HEALTH & HUM. SERV., WHAT ARE CIVIL RIGHTS,

https://www.hhs.gov/civil-rights/for-individuals/faqs/what-are-civil-rights/101

(“Civil rights are personal rights guaranteed and protected by the U.S. Constitution and

federal laws enacted by Congress . . .”).

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496 SETON HALL JLPP [Vol. 48:2

Rights Act of 1964 and the Americans with Disabilities Act of 1990. The

area of environmental justice presents a unique opportunity for the

federal government to once again pioneer in the space and ensure

everyone in the country is treated equally by the law and has equal

access to clean living environments.

In his dissenting opinion in New State Ice v. Liebmann,

119

Justice

Brandeis famously stated that “it is one of the happy incidents of the

federal system that a single courageous state may, if its citizens choose,

serve as a laboratory; and try novel social and economic experiments

without risk to the rest of the country.”

120

Environmental justice

represents one such area where Justice Brandeis’s insights can be

fruitfully put to work. More specifically, a federal environmental justice

law with an enforcement capacity akin to New Jersey’s legislation would

perfectly embody this idea.

A. Source of Congressional Authority for a Federal Environmental

Justice Law

The Constitution grants Congress the power “to regulate commerce

with foreign nations, and among the several states, and with the Indian

Tribes.”

121

Also known as the Commerce Clause, Congress uses this

power to provide a justification for exercising legislative control over

the economic activities of states and their citizens.

122

Although the

Court has narrowed the reach of the Commerce Clause in several of its

more recent cases, a federal environmental justice law would likely still

fall comfortably within its scope.

Consider first the Court’s recent suggestion that the Commerce

Clause authorizes Congress to regulate only “activities” as opposed to

“inactivity.”

123

Since the permitting process in this law is a concerted

effort to engage in the industry by regulating commercial facilities, it is

rather apparent that there is an activity in question.

124

Unlike an

individual coming under regulation for NOT participating in an activity

as described in NFIB,

125

an active market participant, such as a company

119

285 U.S. 262 (1932) (Brandeis, J., dissenting).

120

Id. at 311.

121

U.S. CONST. art. I, § 8, cl. 3.

122

Commerce Clause, Legal Information Institute, CORNELL UNIV. (last visited Feb. 4,

2024), https://www.law.cornell.edu/wex/commerce_clause.

123

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 557 (2012).

124

See N.J. STAT. ANN. § 13:1D-158 (LexisNexis 2022).

125

Sebelius, 567 U.S. at 557 (holding that the failure of an American citizen to

purchase health insurance under the Affordable Care Act is not an economic activity and

is rather inactivity that is outside the purview of the commerce clause).

KIZIMA 2024

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seeking to construct a facility, could be subject to regulation for that

activity under the Commerce Clause.

126

As a category of “activities,” the class of conduct regulated by the

law bears other key features that render it regulable under the

Commerce Clause. Specifically, the Supreme Court stated in United

States v. Lopez

127

that there are three categories of laws that the federal

government can enact under the commerce clause:

128

(1) laws

regulating the channels of interstate commerce, (2) laws regulating the

instrumentalities of interstate commerce, or (3) laws regulating

economic activities that, when viewed in the aggregate, have a

substantial effect on interstate commerce when viewed in aggregate.

129

This law most cleanly fits within the third category as an economic

activity that substantially affects interstate commerce. Most

environmental legislation relies on Article I, Section 8 commerce power

as its source of authority to regulate against pollution and protect

endangered species.

130

Environmental legislation makes commerce

possible entirely by attaching itself to economic means to ensure clean

air and water and prevent catastrophic climate change that would halt

the commercial economy.

131

Similar reasoning could be used to relate

environmental justice legislation to commerce. The aggregation

principle set out in Wickard v. Fillburn

132

and Gonzales v. Raich

133

legitimizes regulatory schemes that impact environmental stressors

that, when viewed in the aggregate, substantially impact interstate

commerce.

134

Based on the above reasoning, the Supreme Court has

refused to strike down any federal environmental legislation as outside

the scope of the commerce power, even though the Court chose to

interpret some environmental legislation narrowly in reference to

126

Id.

127

514 U.S. 549 (1995).

128

Id. at 558.

129

Id.

130

Robinson Meyer, How the U.S. Protects the Environment, From Nixon to Trump, THE

ATLANTIC (last visited Jan. 16, 2024),

https://www.theatlantic.com/science/archive/2017/03/how-the-epa-and-us-

environmental-law-works-a-civics-guide-pruitt-trump/521001/.

131

David M. Metres, The National Impact Test: Applying Principled Commerce Clause

Analysis to Federal Environmental Legislation, 61 HASTINGS L. J. 1035, 1037 (2010).

132

317 U.S. 111, 128–29 (1942).

133

545 U.S. 1, 22 (2005).

134

Metres, supra note 131, at 1038 (citing Bradford C. Mank, After Gonzales v. Raich:

Is the Endangered Species Act Constitutional Under the Commerce Clause?, 78 U. COLO. L.

REV. 375, 435–440 (2007)).

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498 SETON HALL JLPP [Vol. 48:2

commerce clause concerns.

135

The Court would, therefore, likely uphold

a federal environmental justice law under the Commerce Clause

because it is shown that environmental health stressors substantially

affect interstate commerce.

136

Most of the well-known environmental laws are federal statutes

that apply to everyone.

137

For example, the National Environmental

Policy Act of 1969 paved the way for future environmental legislation

by codifying a national concern for the quality of the environment and

promoting environmental awareness.

138

Following this step forward in

environmental legislation came the Endangered Species Act of 1973,

139

The Federal Water Pollution Control Act,

140

The Clean Air Act,

141

The

Safe Drinking Water Act,

142

and The Comprehensive Environmental

Response, Compensation, and Liability Act of 1980.

143

These statutes,

enacted at the federal level, are still operative today, boding well for

continued legislation in the area, despite growing polarization on

environmental issues.

144

B. Nondelegation Under Gundy

The recent changes in delegation jurisprudence in the Gundy

decision could change the administrative landscape.

145

The Gundy case

involved a constitutional challenge to the Sex Offender Registration and

135

Metres, supra note 131, at 1038 (citing Daniel A. Farber, Climate Change,

Federalism, and the Constitution, 50 ARIZ. L. REV. 879, 912 (2008)); Solid Waste Agency v.

United States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (holding that the Clean

Water Act does not extend to intrastate waters and declining to answer whether

congress has the authority under the commerce power to extend the Clean Water Act to

intrastate waters).

136

See Metres, supra note 131, at 1038.

137

See Lydia B. Hoover, The Commerce Clause, Federalism and Environmentalism: at

Odds After Olin?, 21 WM. & MARY ENVTL. L. POL’Y REV. 735, 750 (1997).

138

Id.; 42 U.S.C. §§ 4321–4370d (1994).

139

16 U.S.C. §§ 1531–1544 (protecting fish, wildlife, and plants that are either

threatened or endangered and promotes plans for their recovery).

140

33 U.S.C. §§ 1251–1387 (intending to maintain the integrity of the country’s

water).

141

42 U.S.C. §§ 7401–7671q (intending to protect the nation’s air by preventing air

pollution).

142

42 U.S.C. §§ 300f–300j-26 (providing the population with safe drinking water

through public systems).

143

42 U.S.C. §§ 9601–9675 (providing for remedial action for hazardous waste sites

and superfund provisions).

144

See Jamie Fuller, Environmental Policy is Partisan. It Wasn’t Always., WASH. POST

(June 2, 2014, 6:30 AM), https://www.washingtonpost.com/news/the-

fix/wp/2014/06/02/support-for-the-clean-air-act-has-changed-a-lot-since-1970/.

145

See Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).

KIZIMA 2024

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Notification Act (“SORNA”) regarding whether Congress could delegate

its legislative power to another branch of government to apply the act

to offenders convicted prior to its enactment.

146

Presumably, this law

would be implemented and enforced by the United States

Environmental Protection Agency. Therefore, we must assess the

possibility of issues with the law arising out of Congress’s delegation of

legislative power to agencies. Absent in the Federal and all state

constitutions is a provision expressly forbidding the delegation of

legislative power.

147

“[T]he delegation doctrine in the federal

government arises from Article I of the Constitution, the doctrine of

separation of powers, and the doctrine of checks and balances.”

148

Jurisprudence in this area requires that Congress lay out an “Intelligible

Principle” or a legal framework to restrict an administrative agency’s

authority.

149

This is a rather broad standard, as the Court has not struck

down legislation under this principle since 1935.

150

This agency delegation jurisprudence could all change following

the Gundy decision. The Gundy case concerned the delegation of power

to the attorney general to run sex offender registration.

151

Only eight

justices sat on the Court at the time, as Congress had not yet voted to

confirm Justice Kavanaugh.

152

Thus, Justice Kagan authored the opinion

for a four-justice plurality, holding that the intelligible principle

standard was complied with in this case.

153

The late Justice Ginsburg

joined in Kagan’s opinion.

154

Justice Gorsuch, along with Justice Roberts

and Justice Thomas, dissented, stating that the Court needs to review its

approach to nondelegation and that this case is a good vehicle to do

so.

155

Justice Alito concurred with Kagan but indicated that he, too,

146

Id.

147

Gary J. Greco, Survey: Standards or Safeguards: A Survey of the Delegation Doctrine

in the States, 8 ADMIN. L.J. AM. U. 567, 569 (1994).

148

Id.

149

Cong. Rsch. Serv., Origin of the Intelligible Principle Standard, CONST. ANNOTATED,

https://constitution.congress.gov/browse/essay/artI-S1-3-3/ALDE_00001317/ (last

visited Jan. 17, 2024); see, e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935).

150

Cong. Rsch. Serv., Origin of the Intelligible Principle Standard, CONST. ANNOTATED,

https://constitution.congress.gov/browse/essay/artI-S1-3-3/ALDE_00001317/ (last

visited Jan. 17, 2024).

151

Gundy v. United States, 139 S. Ct. 2116, 2126 (2019).

152

Amy Howe, Decade in Review: Justice Kavanaugh’s Confirmation Hearing,

SCOTUSBLOG (Dec. 31, 2019, 9:00 AM), https://www.scotusblog.com/2019/12/decade-

in-review-justice-brett-kavanaughs-confirmation-hearing/.

153

Gundy v. United States, Oyez, https://www.oyez.org/cases/2018/17-6086 (last

visited Jan. 17, 2024).

154

Id.

155

Id.

KIZIMA 2024

500 SETON HALL JLPP [Vol. 48:2

wanted to revisit the Court’s approach to nondelegation.

156

Now that

Justice Amy Barrett has replaced the late Justice Ginsburg, Justice Alito

and the dissenters’ desire to review nondelegation seems more likely.

157

Thus, an environmental justice law at the federal level, presumably

granting broad legislative power to the EPA, might run into some

delegation problems that Congress may deal with by minimizing the

degree of discretion afforded the EPA should the Court decide to

overhaul agency delegation in a future case.

As a solution, the federal legislation must erect sufficient statutory

boundaries to constrain the delegation of power to the subject agency.

The federal law must be specific enough to fully outline the agency’s

power to implement the law while not frustrating the purpose of the

legislation, even under a narrower interpretation of the delegation

doctrine possibly forthcoming.

C. Response to Criticisms of the New Jersey Law

Since its federal counterpart will likely face some of the same

criticisms, addressing concerns surrounding the New Jersey law is

important.

1. “Too Much of the State is Overburdened”

Most industry pushback comes from those who feel the

requirements for what is considered an overburdened community are

too broad.

158

According to “Sean Moriarty, the DEP’s deputy

commissioner for legal and regulatory affairs, . . . about 3,440 Census

block groups representing 4.6 million people, roughly 51 percent of the

state’s population, live in areas that are overburdened.”

159

During five

public hearings in July, industry leaders pushed for a “compelling public

interest” consideration that would take into account the economic gain

and job opportunities a facility could provide.

160

This idea, however,

was met with stark opposition during the public commenting period.

161

Even though large portions of the state’s population are overburdened

under the statute, reducing the health stressors caused by polluting

156

Id.

157

Id.

158

Bright, supra note 17.

159

Frank Kummer, Proposed N.J. Rule Says Half of Neighborhoods are Overburdened,

THE PHILA. INQUIRER (June 6, 2022), https://www.governing.com/community/proposed-

n-j-rule-says-half-of-neighborhoods-are-overburdened.

160

Bright, supra note 17.

161

See Bright, supra note 17.

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facilities in these communities is the entire intent of the law.

162

Moreover, although 51 percent of the population is considered

overburdened,

163

those populations are densely consolidated in highly

populated areas around New York City and Philadelphia.

164

This uneven

distribution of people means that large parts of the state, which are less

densely populated, are open for business for these industries.

165

Placing

these facilities in less populated areas could allow for a less dense

consolidation of pollutants near large groups of people.

2. To the Extent That the Law Merely Calls for Additional

Hearings and Procedures, How Certain are we That it

Will Make a Meaningful Dent in the Number of Permits

that are Ultimately Denied?

What gives this legislation “teeth” is that the act allows for denying

a permit should the department deem that adding the facility to the

community would subject the overburdened community to heightened

public health stressors than other communities.

166

While the public

outreach portion of the law is intended to promote informed

communities and bridge language barriers, the actual muscle lies in the

findings of the applicant’s environmental impact study and the

department’s ability to deny the permit based on the report’s

findings.

167

Greater public knowledge of the proposed actions could

increase public pressure on the politicians in the area to fight the

proposed facility on behalf of their constituents. This, in turn, will

incentivize developers to offer projects outside of overburdened

communities due to the permitting complications. While this may not

increase outright permit denials, it still furthers the law’s goal of limiting

the constriction of polluting facilities in overburdened communities.

Regardless of the aforementioned complexities, this law

perpetuates the bigger-picture environmental goal of limiting pollution

altogether through innovation. Studies have shown that the typically

referenced trade-off of increased environmental regulation leading to

increased costs for companies and environmental protection as an

162

Kummer, supra note 159.

163

Kummer, supra note 159.

164

N.J. Dep’t of Env’t Prot., Environmental Justice Mapping, Assessment and Protection

Tool, EJMAP,

https://experience.arcgis.com/experience/548632a2351b41b8a0443cfc3a9f4ef6 (last

visited Jan. 17, 2024).

165

Id.

166

New Jersey Passes an Environmental Justice Law with Teeth, supra note 20.

167

§ 13:1D-160(c) (LexisNexis 2022).

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502 SETON HALL JLPP [Vol. 48:2

inhibitor of innovation is no longer the case.

168

Instead, properly

designed environmental regulations can promote more productive uses

of resources, thus enhancing a company’s competitive advantage and

driving innovation in the environmental space, leading to less waste and

pollution.

169

Therefore, if a developer can propose a cleaner facility to

be built in an overburdened community, the law is still promoting the

outcomes for which it was intended.

3. Environmental Stressors Currently in Place

One major criticism of the law is that it does nothing to improve the

current environmental stressors in these communities. The statute

provides that in cases of facility expansion, the statute is not to be

construed as limiting applicants’ rights to continue operating the facility

throughout the permitting process so long as doing so complies with

currently established law.

170

But, since the law also applies to

expanding current facilities, any current polluter, presumably located in

an overburdened community, will have to comply with the standards of

the act.

171

Thus, while not directly relocating an existing facility, the law

will not only force developers to look elsewhere but also require that

current facilities clean up their actions should they require extensive

repair or expansion.

172

IV. CONCLUSION

New Jersey’s most vulnerable have scored a massive victory in

improving the health of their communities through the New Jersey

Environmental Justice Law that aims to redirect the development of

pollution-producing properties away from their communities.

173

Based

on the overwhelming evidence implicating government action in

ensuring minority communities reside in substandard living conditions,

it is time for the government to take responsibility for its past actions.

Additionally, the public health data tells a harrowing story of illness,

grief, and sadness that accompanies poor air quality. Powerful change

is the only remedy.

168

Michael E. Porter & Claas van der Linde, Green and Competitive: Ending the

Stalemate, HARV. BUS. REV. (1995), https://hbr.org/1995/09/green-and-competitive-

ending-the-stalemate.

169

Id.

170

§ 13:1D-160(f) (LexisNexis 2022).

171

§ 13:1D-160(f) (LexisNexis 2022).

172

§ 13:1D-160(f) (LexisNexis 2022).

173

N.J. STAT. ANN. § 13:1D-157 (LexisNexis 2022).

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The possibility of a federal analog of the New Jersey Environmental

Justice Law looks bright. The law, as drafted, passes muster under the

Commerce Clause jurisprudence promulgated by the Supreme Court.

174

New Jersey’s tale of environmental discrimination is not unique.

Therefore, a federal environmental justice law only makes sense to

further domestic tranquility and provide for the general welfare that the

preamble to the Constitution outlines.

175

174

Commerce Clause, Legal Information Institute, CORNELL UNIVER. (last visited Jan. 17,

2024), https://www.law.cornell.edu/wex/commerce_clause.

175

U.S. CONST. pmbl.