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Environmental Equity: A New Hurdle for the Permit Weary



May 2, 2002

For over three years, the New Jersey Department of Environmental Protection has steadily moved toward community involvement in the permitting process, making the process increasingly more cumbersome.

The prolix permitting process will be rendered more Byzantine under the rules proposed on February 4, 2002 in the New Jersey Register. The rules will be codified at NJAC 7:1F. Theses rules are denominated as “an environmental equity process.” This process mandates an expanded community participation process which the permit applicants must conduct involving local communities, and the Department. The rule also includes a process through which a community can request that an applicant conduct outreach to the community about a proposed project. The rules not only govern new permits but also involve permit modification or permit renewals. The outreach process is mandatory.

The capstone of the program is the Environmental Equity Screening Model, a computer program that relates census data to environmental exposure data. The census data inputs European, African, Latin, Asian, native and other Americans based on the l995 census update. The exposure data is based on the Air Toxics Inventory, Ozone measurements, particulates and the New Jersey Known Contaminated Sites List. Inputting the data results in matrix by population and gives therefore a specific score. If the DEP determines that the threshold value is exceeded, it will require the applicant to participate in the Expanded Community Participation Process. Not satisfied with that result, the DEP will encourage the other applicants below the threshold to participate voluntarily in the Environmental Equity Process.

Obviously, while aimed at correcting the perceived disparate impact of certain DEP permit decisions, these rules may be of more benefit to the “not-in-my-backyard” crowd rather than to those seeking environmental justice.

The DEP determines if the applicant has complied with the Environmental Equity process in good faith. If required to comply, a finding of lack of good faith dooms the permit. If not required to comply, and the DEP finds that the applicant did not make a good faith effort, the DEP adds a “black mark”. At the conclusion of the outreach process both sides have a right to Alternative Dispute Resolution. At the end of that, an applicant can conduct an impact analysis.

In short, the process can be entitled “Nemo Permitteret idem in Haec Provincia” or “no one permits it in this State”.