UPDATE: Sept. 18, 2020: Gov. Phil Murphy has signed an environmental justice bill with major permit implications into law after several years of back-and-forth over the legislation. Activists and community groups are celebrating the legislation's passage after years pushing for the law. Despite reservations from some corners of the waste industry regarding the legislation (S232/A2212), Covanta issued its own statement of support, saying the law "recognizes the burdens faced by environmental justice communities and provides a foundation to reduce cumulative environmental impacts in overburdened areas." 

August 12: Stakeholders say a New Jersey bill that would significantly weigh environmental justice factors in a number of decisions around industrial projects is still likely to pass despite momentarily stalling in the state legislature. The legislation could affect new permits and renewals for facilities, with major implications for the waste and recycling industry.

The bill (S232) passed the state Senate by a vote of 22 to 14 in June. But after appearing all but certain to pass the Assembly in late July, lawmakers did not bring it to the floor for a vote.

If the bill passes, it would come despite opposition from many business stakeholders, who have said the legislation is vague with unclear impacts. Some members of the industry have also said they feel singled out, as the bill directly targets waste and recycling facilities, while also expressing support for certain components.

Both Covanta and Wheelabrator operate facilities in New Jersey and the National Waste and Recycling Association (NWRA) has been closely following the bill. Steve Changaris, vice president of NWRA's Northeast region, said the organization has expressed its concerns about the bill's broad scope, which could impact pre-existing facilities along with new projects, including any stemming from New Jersey's new commercial organics diversion mandate. 

"We all know that people have to be heard, and we want to incorporate their views into the decision-making," Changaris said. But waste operators, he said, "just want to know what's going to happen in the process."

Despite such hesitations, sources largely agree the bill is likely to succeed barring any surprise hurdles. They cite momentum around the measure, which is backed by many lawmakers and members of low-income communities of color in the state, along with growing support for recent Black Lives Matter demonstrations. 

A sweeping legislative effort

Attempts to create environmental justice legislation in New Jersey stretch back over a decade, with this latest bill getting farther than any prior attempt has before and set to become the strictest law of its kind nationwide according to stakeholders. 

Under S232, the state Department of Environmental Protection (NJDEP) would have to consider the impacts to "overburdened communities" posed by certain new facilities, along with expansions of those facilities or renewals of major source permits. It would be effective 180 days from enactment. 

The bill singles out any sites that are major sources of air pollution, along with "resource recovery" facilities or incinerators, landfills, transfer stations, sludge processing plants, and scrap metal facilities, as well as recycling facilities receiving at least 100 tons of recyclable material per day. Impacted communities are defined within census block groups with either 35% or more of households qualifying as low-income, at least 40% of residents being people of color, or at least 40% having reduced English proficiency. Estimates by lawmakers and various groups find around 300 of New Jersey's 565 municipalities could have at least one community that falls into those categories. 

Sites in those areas would need to prepare an environmental justice statement and transmit it to the relevant municipality 60 days prior to a public hearing. A decision on the site would be delayed for at least 45 days following the hearing, and the department would ultimately be free to deny a permit on environmental justice grounds. 

Experts with knowledge of the process said the legislation could prevent the creation or continuation of a number of facilities, and even several supporters said it could hinder business efforts. Some estimated the environmental justice statement and public hearing process alone could cost around $50,000 or more, before accounting for other costs, including any operational expenses that would likely be much higher. 

A last-minute holdup occurred on July 30 when Assembly Speaker Craig Coughlin did not bring the bill to the floor for a vote — seemingly due to labor pushback over the inclusion of permit renewals. Trade unions have expressed fears about the implications that measure could hold for jobs, according to reporting by Politico. In the days since, lawmakers have said they are working with those groups to address their concerns and that they still hope to pass the bill by Labor Day.  

The bill has buy-in from impacted communities and environmental groups, as well as Gov. Phil Murphy who has taken the unusual step of publicly throwing his support behind the effort. Other prominent names have also endorsed it. Sen. Cory Booker called into a virtual July 20 environment and solid waste committee hearing to speak in support of the legislation from his car while en route to Washington, D.C.

"We are in an extraordinary time in this country... a racial reckoning in our nation," said Booker, blasting the "disproportionate injustices" that Black Americans in particular face from issues including environmental crises. "It is time that impacted communities are involved in correcting injustices," he said. 

Assemblyman John McKeon, a sponsor of the bill, mentioned his many conversations with the waste industry and other members of the business community during the hearing. "They run businesses that are important to the quality of life of all of us," McKeon said, calling them "partners" in working on wider issues of environmental justice. “I don’t want us to put them in some kind of a box that they’re being demonized."

Still, he pointed to the ongoing pollution and environmental problems that have disproportionately impacted people of color in New Jersey. Landfills in the state are largely publicly-owned, but McKeon noted his bill's focus on waste sites more broadly, including incinerators, which many community members say are an outsized source of pollution.

Discussions with the business community, McKeon said, led to some adjustments. If a new siting is deemed to serve a "competent public interest," for example, it may still be approved, something that could apply to proposed facilities meant to accommodate the state's organics diversion mandate. McKeon did not respond to a request for comment. 

In prepared remarks for the hearing, Changaris of NWRA said passage of the bill would "send chills throughout the state’s recycling and solid waste industry." At the time, he advocated for the legislation to "not yet apply to" pre-existing recycling and solid waste management facilities, or any permit expansions or renewals. He also called for some portion of the host fees currently paid to communities by facilities to be directed to assist with environmental justice issues.

The Institute of Scrap Recycling Industries also submitted comments applauding the bill's aims, but stating it "would unintentionally harm recycling innovation and investment in New Jersey."

Community groups and environmental advocates, however, have been very supportive of the legislation.

"This bill is critical for the protection of Black and brown and low-wealth communities that have for decades been the dumping ground for our state's unwanted and polluting industries," said Ana Baptista, an assistant professor and associate director for the Tishman Environment & Design Center at the New School. 

Kim Gaddy, an environmental justice organizer with Clean Water Action, said she was motivated to support the legislation as a Black mother of three children and someone with asthma. "My community and family deserve the right to breathe clean air," she said.  

A focus on WTE

Waste companies have offered mixed responses. Wheelabrator did not respond to a request for comment, but Covanta Director of Communications James Regan said the company supports the legislation "as an important first step." He said Covanta feels the bill does not address the state's largest emissions sources, however, and encouraged a future focus on areas like the transportation sector.

"What it's missing is the biggest sources in these communities," Regan said, adding Covanta's visible facilities may have played a role in some public reaction in New Jersey. "We get it, we have these noticeable stacks, we're easily spotted from roads and highways. [But] these plants provide an essential service."

While Regan said financial implications associated with the bill remain to be seen, he indicated Covanta is pursuing some measures that could preview what the wider industry in New Jersey may experience. At the company's facility in Camden, for example, a baghouse installation has come with a price tag of between $40 million and $50 million. A separate baghouse installation in Newark that the company said reduced various emissions by up to 90% cost around $90 million, while systems to specifically reduce nitrous oxide emissions cost around $6 million.

"We knew we were going to do that," said Regan regarding the projects, "but that's an example of something that could've come with regulations."

Paul Gilman, Covanta's chief sustainability officer, similarly spoke about these efforts during the July 20 hearing. Stating the legislation appears to be "focused on the solid waste and recycling sector," Gilman pointed to port and transportation emissions as an unaddressed environmental justice issue.

"I hope you'll pass this legislation today, but I hope you'll continue to work on the problem," he said.

Baptista, the professor, said the bill does not target the waste industry but will have implications for the state's incinerators, which she said are largely located in close proximity to communities of color. "These facilities are not the only focus of this bill but they are included because they do represent a source of significant pollution in communities," she said. 

Organics facilities, including anaerobic digesters, are unlikely to see a significant impact in Baptista's view. "[Those facilities] do not emit toxic pollutants in the same manner that incinerators, refineries, and chemical plants do," she said, adding such sites are more likely to meet the benchmarks established in the bill. 

While the legislation has yet to pass, experts said they see it as part of a growing trend toward environmental justice laws. Impact statements like the one included in the bill are required in several states, and Massachusetts is in the midst of considering its own environmental justice bill.

Melissa Miles, an environmental justice manager with the Ironbound Community Corporation, said she felt "optimistic" about the New Jersey bill's ultimate passage and the potential for the legislation to guide similar efforts in other states.

"I think it's stalled because it isn't easy to make paradigm shifts, it takes tremendous momentum and courage on the part of decision makers," Miles said. "But ultimately hope is a choice and we will never stop working for environmental justice in this way."