Decades later, environmental hazards continue to disproportionately impact minority and low-income communities, including the increased proximity and exposure to hazardous waste facilities and other industrial facilities that contribute to pollution. Given the growing awareness of these impacts, state legislatures and the federal government have been taking steps to identify impacted communities, measure long-term health impacts, evaluate the siting of future industrial projects, and ensure that all communities have equal access to a healthy environment.
Overview; Federal Action
In the 1990s, the federal government began to address environmental justice through Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which directed federal agencies to:
- Identify and address the disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations, to the greatest extent practicable and permitted by law.
- Develop a strategy for implementing environmental justice.
- Promote nondiscrimination in federal programs that affect human health and the environment, as well as provide minority and low-income communities access to public information and public participation.
This 1994 executive order also established an interagency working group on environmental justice chaired by the EPA administrator and comprised of the heads of 11 departments or agencies and several White House offices. Additionally, the EPA’s Office of Environmental Equity, established in 1992, was changed to the Office of Environmental Justice.
In the years following, the federal government issued several reports and interim guidance including, but not limited to:
Most recently, President Joe Biden signed Executive Order 14008—Tackling the Climate Crisis at Home and Abroad—in January 2021, which created the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council, in addition to the creation of the Justice40 Initiative.
In addition to establishing new environmental justice policy initiatives, the $1.9 trillion coronavirus economic stimulus relief package, the American Rescue Plan Act of 2021 appropriates $100 million to the EPA to address health outcome disparities from pollution and the COVID-19 pandemic, and also designates $50 million to grants, contracts and other agency activities that identify and address disproportionate harms and risks on minority and low-income populations, in addition to $50 million to grants and activities in order to monitor and improve air quality. On top of ARPA, the Infrastructure Investment and Jobs Act included a number of investments with potential to benefit communities most impacted by environmental justice-related issues and concerns.
For example, the bill includes significant investments in environmental remediation, with a $21 billion investment to clean up Superfund and brownfield sites, reclaim abandoned mine land and cap orphaned gas wells. For more information on what’s included in the act visit NCSL’s webpage.
Overview; State Action
State policymakers are considering how to create safeguards for communities that are disproportionately affected by the effects of pollution and other environmental hazards. These safeguards include adopting policies that prioritize reducing environmental health impacts, reforming the way land is used and developed, and increasing opportunities for communities to weigh in on environmental decision-making processes. States are also taking steps to improve their understanding and enhance state-wide coordination to address these issues, including collecting data, developing tools, or utilizing screening tools (such as EPA’s EJSCREEN) to identify environmental and demographic indicators that can be used to support policy goals.
In 2020, New Jersey passed SB 232, a landmark bill requiring the New Jersey Department of Environmental Protection to identify the state’s overburdened communities and imposes new requirements on permits for certain facilities located within the same census tract as these communities, including facilities that are major sources of air pollution, incinerators, sludge processing facilities, sewage treatment plants, and landfills. In September 2021, the department’s commissioner Shawn LaTourette issued Administrative Order 2021-25, which is designed to provide guidance regarding the department’s expectations for facilities located or seeking to be located in overburdened communities prior to the implementation of rules for the new law. NJDEP is in the process of developing regulations to implement the law.
In 2021, states considered at least 150 bills related to environmental justice. For example, some states have established offices and commissions, and some have refined existing laws. States are also evaluating the impacts of industrial facilities and land development projects, and legislation has promoted the prioritization of community engagement in decision making.
As states move forward with establishing new task forces, states may also need to define what is an environmental justice community and consider existing administrative processes. Colorado enacted HB 1266 in 2021, which creates the Environmental Justice Task Force in the Department of Public Health to provide recommendations on how to address environmental justice inequities. The bill also requires the Air Quality Control Commission to engage with disproportionately impacted communities, including sharing information about adverse effects of actions the commission has proposed. Disproportionately impacted communities are defined as a “census block group where the proportion of households that are low income, that identify as minority, or that are housing cost-burdened is greater than 40% [and] any other community as identified or approved by a state agency, if the community: Has a history of environmental racism perpetuated through redlining, anti-Indigenous, anti-immigrant, anti-Hispanic, or anti-Black laws; or is one where multiple factors may act cumulatively to affect health and the environment and contribute to persistent disparities.”
State policies related to energy and air quality often also relate to environmental justice considerations. In 2021, Massachusetts enacted SB 9, which creates a next-generation roadmap for the state’s climate policy. This establishes new goals for reducing emissions and increases environmental justice protections by requiring environmental impact reports for projects that impact air quality and are located near certain communities. Rhode Island enacted SB 78, which requires an equitable transition to net-zero emissions and directs state agencies to address recommendations to protect populations most at risk of pollution, displacement, and energy burden.
State Offices, Commissions and Task Forces
States have established task forces, commissions and offices focused on providing recommendations and implementing strategies to protect overburdened communities, or communities that face disproportionate exposure to environmental hazards. These task forces and offices are often responsible for advising the governor on environmental justice concerns, identifying communities that may be impacted by certain decisions, and engaging in dialogue with impacted communities to ensure their concerns are being heard and considered. They may also be responsible for setting goals to reduce inequities and recommending strategies for incorporating environmental justice policy principles into a state’s decision making.
For example, Michigan Governor Rick Snyder created the Environmental Justice Work Group in 2017, following recommendations from the Flint Water Advisory Task Force and the Flint Water Interagency Coordinating Committee’s Policy Subcommittee. The work group released a report in 2018 with recommendations on how to improve environmental justice awareness and engagement in state and local agencies.
Oregon’s Environmental Justice Task Force, established by SB 420 in 2008, advises the governor and works with communities that may be impacted by state agencies’ environmental decision making. The Task Force published a best practices handbook in 2016 aimed at providing guidance to state agencies on how to incorporate environmental justice in their operations.
The Virginia General Assembly created the Council on Environmental Justice within the state’s executive branch. The Council is tasked with providing advice on addressing environmental justice issues in “stakeholder communication, local governments, climate change and resilience, transportation, clean energy, outdoor access, and cultural preservation.”
Examples of enacted bills include:
- Colorado HB 1266 (2021)—Creates the Environmental Justice Task Force in the Department of Public Health and Environment, the goal of which is to propose recommendations to the General Assembly regarding means to address environmental justice inequities.
- Maryland HB 1207 (2021)—Specifies that the Commission on Environmental Justice and Sustainable Communities has to hold at least four community listening sessions per year, with a majority of Commission members present at the meetings. Also requires that notice for the community meetings be posted at least 30 days in advance.
- Virginia HB 1042 (2020)—Establishes the Council on Environmental Justice to provide recommendations to protect vulnerable communities from pollution and ensure opportunities for meaningful involvement in the environmental decision making process.
- Washington SB 5141(2021)—Implements the recommendations of the Environmental Justice Task Force, which submitted guidance in 2020 on policies to reduce environmental health inequities.
State Environmental Justice Offices, Commissions and Task Forces
Land Use and Development
Land use decisions, such as the siting of industrial facilities, have historically disproportionally impacted low-income and people of color. In recent years, states have taken steps to mitigate the impacts felt by certain communities by creating more robust processes for determining where certain facilities can be located.
When incorporating environmental justice considerations into decisions surrounding land use and development, states may decide to address permits for specific types of facilities or look at permitting more broadly.
New Jersey enacted SB 232 in 2020, which requires the Department of Environmental Protection to evaluate the environmental and public health impacts of particular facilities, such as gas-fired power plants, wastewater treatment plans, and landfills, when reviewing permit applications. With this law, New Jersey became the first state to require state agencies to deny a permit if an analysis determines that a new facility will have a disproportionately negative impact on the surrounding community.
Other states have considered policy options to regulate where certain facilities can be located and strengthen the processes for determining how land can be used.
Examples of enacted bills include:
- Massachusetts SB 9 (2021)—Specifies that for projects that impact air quality, an environmental impact report is required if the project is located within five miles of an environmental justice population (i.e., a neighborhood that meets one or more criteria outlined in the bill).
- Rhode Island HB 5923 (2021)—Prohibits new high-heat medical waste processing facilities if they are in environmentally sensitive areas, including areas with a high percentage of low-income or minority individuals.
Identifying and Engaging with Communities
In recent years, states have endeavored to evaluate environmental justice considerations and incorporate this data into agency decision making. Often, as a first step, states are developing frameworks to collect and evaluate data to better identify communities facing environmental challenges. This has resulted in the development of a variety of tools including California’s CalEnviroScreen, Maryland’s MD EJSCREEN, and Washington’s Environmental Health Disparities Map, which are central to the decision-making process as states seek to visualize and quantify environmental burdens.
Further, states have required certain agencies to prioritize the needs of environmental justice communities in their policies and operations. For example, Virginia’s HB 1164, enacted in 2020, modifies the Department of Environmental Quality’s statutory policy statement to ensure that environmental laws and policies are administered in a way that meaningfully involves “all people regardless of race, color, national origin, faith, disability, or income.”
States have also sought to bolster community engagement requirements with regards to environmental decision making. Connecticut enacted HB 7008 in 2020, updating its environmental justice law to create enhanced requirements for engaging with communities that are impacted by pollution. Applicants seeking to obtain a new or expanded permit or siting approval for a polluting facility that will affect an environmental justice community have to file a meaningful public participation plan to provide residents of the community an opportunity to participate in decisions about the proposed facility. Rhode Island enacted SB 78 in April 2021, which requires an equitable transition to net-zero emissions, calls for “redress [of] past environmental and public health inequities,” and provides for input by populations most impacted by climate change.
Examples of enacted bills include:
- Maine LD 1682 (2021)—Requires the Governor’s Office of Policy Innovation and the Future to develop methods of incorporating equity considerations in decision making at the Department of Environmental Protection, the Public Utilities Commission and other state agencies.
- Oregon HB 2475 (2021)—Authorizes the Public Utilities Commission to consider environmental justice factors that affect rate affordability for certain utility customers.
- Washington SB 5141 (2021)—Requires specific state agencies to create and adopt community engagement plans. Among other requirements, these plans must specify how the agency intends to use screening tools that integrate environmental, demographic and health disparities data to evaluate the needs of communities that may be impacted by agency actions.