A three-judge appellate panel on Jan. 5 affirmed New Jersey’s environmental justice rules challenged by various industry and labor groups.

Ultimately, the panel concluded that the New Jersey Department of Environmental Protection (DEP) acted within its authority by adopting the legislature’s environmental justice rules (also known as the EJRules). In particular, the panel concluded that the DEP’s definitions, methodologies and permitting framework were reasonable, consistent with legislative intent, and entitled to substantial deference.

The EJRules were enacted in April 2023 to implement New Jersey’s 2020 environmental justice statute, which required certain polluting facilities, such as gas power and waste treatment plants, to analyze and mitigate their impacts on overburdened communities. Specifically, the law directs the DEP to evaluate the cumulative environmental and public health impacts (aka “public health stressors”) on certain communities that fit particular demographic metrics, such as low‑income households, minority populations, or residents with limited English language proficiency.

The statute also requires applicants seeking permits for new facilities, expansions, or major‑source renewals in those areas to prepare environmental justice impact statements, hold public hearings, and propose feasible measures to avoid or reduce disproportionate impacts.  Then, if the DEP determines that a facility would have impacts “higher than those borne by other communities,” it must deny the permit unless the project serves a “compelling public interest.”

The plaintiffs made several arguments in opposition to the EJRules, including that the DEP: (1) exceeded its statutory authority by redefining the terms “new facility,” “existing facility,” “change in use,” and “expansion”; (2) identified environmental and public health stressors beyond what the New Jersey legislature intended; and (3) created arbitrary and capricious permit conditions and impact‑control measures in violation of the Administrative Procedure Act (APA) by issuing a mapping tool and technical guidance without formal rulemaking.  They also argued that several definitions were unconstitutionally vague or overbroad and left regulated entities uncertain about compliance obligations. Thus, exposing them to unpredictable permitting outcomes.

However, the panel rejected the plaintiffs’ arguments, concluding that the DEP was entitled to “substantial deference” in implementing its own statutes and opining that “[n]o community should bear a disproportionate share of the adverse environmental and public health consequences that accompany the state’s economic growth.” The panel also found that the DEP’s definitions of key terms were consistent with the statute’s language and objectives and that the DEP reasonably interpreted ambiguous provisions. The panel further held that the rules were not unconstitutionally vague because due process only requires that regulated entities receive fair notice of what is required rather than not mathematical precision.

Additionally, the panel rejected the plaintiffs’ argument that the DEP violated the APA by issuing the mapping tool and the technical guidance without formal rulemaking because the statute expressly authorized the DEP to publish technical guidance and maintain a list of overburdened communities. Moreover, the panel found that the statute’s definition of stressors was intentionally broad and non‑exhaustive and that the DEP’s scientific rationales were reasonable and supported by the record.

Notably, this ruling is the first appellate test case for New Jersey’s environmental justice statute. However, should the plaintiffs seek to appeal the panel’s decision, they would need to seek certification from the New Jersey Supreme Court since the appellate panel’s decision was unanimous.