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EJ Statutes Grow at the State Level

Several states have started to address the disproportionate and inequitable effects that their low-income and minority communities have long faced through new statutes that impose permitting limits or enshrine additional environmental review requirements. It is time for a roundup of these efforts.

California

Passed in 2016, SB 1000 requires California localities to identify “disadvantaged communities” within their jurisdictions and address environmental justice in their general plans for land use. In their plans, cities and counties must identify objectives and policies to “reduce the unique or compounded health risks in disadvantaged communities [through] the reduction of pollution exposure, including the improvement of air quality, and the promotion of public facilities, food access, safe and sanitary homes, and physical activity.” These local governments must also work to increase community engagement in “public decisionmaking.”

Colorado

In July 2021, Colorado passed HB 21-1266 to address the environmental inequities experienced by “disproportionately impacted communities.” The bill envisions additional permitting requirements for pollution sources that affect disproportionately impacted communities. It also sets out new requirements for identifying disproportionately impacted communities and monitoring new and modified sources of pollutants in these communities. The bill also calls for a task force to consider “a potential requirement that agencies prepare an environmental equity analysis for any state action that has the potential to cause negative environmental or public health impacts to a disproportionately impacted community.” The bill also envisions the potential for a consideration of cumulative impacts and instructs the task force to consider the impact of the analysis on permitting. The bill exempted agricultural sources from any additional conditions.

Illinois

Passed in 2011 the state’s Environmental Justice Act recognizes that “certain communities in the State may suffer disproportionately from environmental hazards related to facilities with permits approved by the State.” The statute created the Commission on Environmental Justice and instructed it to develop criteria and regularly report to the Governor on options that address concerns of environmental justice. The legislature is currently considering HB4093 which would require the permitting process for new sources of air pollution to include the review of cumulative impacts of air pollution sources.

Massachusetts

Massachusetts’ Climate Act, passed in 2021, requires an environmental impact report for state projects that will “cause damage to the environment” and will affect an “environmental justice population.” That analysis should address any existing unfair or inequitable public health and climate impacts, as well as the disproportionate health and environmental impacts that would likely result from a project. Massachusetts’ Department of Environmental Protection is also required to “evaluate and seek public comment on the incorporation of cumulative impact analyses in the assessment and identification of certain categories of permits and approvals.” The department has proposed a Cumulative Impact Analysis Framework for Air Permits for comment, which will ultimately be incorporated into permitting rules and used to evaluate the potential impacts that a project would have on the air emissions in or near environmental justice communities.

New Jersey

New Jersey’s Environmental Justice Law of 2020 provides that the NJ Department of Environmental Protection shall deny a permit for a new facility if it would ​“cause or contribute to adverse cumulative” impacts on an overburdened community unless the department finds the new facility ​“will serve a compelling public interest in the community where it is to be located,” in which case a permit may be approved with conditions to protect public health. To make that determination, the law requires an assessment of the potential environmental and public health stressors that would result if a permit is approved or renewed in what the state defines as an ​“Overburdened Community.” The analysis culminates in an Environmental Justice Impact Statement, which must be published to provide an affected Overburdened Community an opportunity to weigh in on the permitting/​renewal decision. New Jersey’s Department of Environmental Protection recently issued a proposal for regulations implementing the statute. (See the June 6, 2022, Proposed Rules.)

New York

Earlier this year, the state’s legislature passed New York Bill S8830/A2103D, which would require the consideration of the cumulative impacts that proposed projects would have on “disadvantaged communities” that are already overburdened by the disproportionate siting of polluting facilities in their communities. The bill explicitly prohibits the approval or renewal of permits for projects that may impose additional inequitable and/or ​disproportionate environmental burdens on a disadvantaged community. The bill awaits Governor Hochul’s signature.

Virginia

In 2020, Virginia passed the Environmental Justice Act. The statute establishes a statewide policy “to promote environmental justice and ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fenceline communities.” The statute defines terms such as “fenceline community,” “meaningful involvement,” and “environmental justice.” The inclusion of this terminology lays a general foundation to be used in future related legislation.

Washington

With the Healthy Environment for All (HEAL) Act, passed in 2021, Washington implemented many of the recommendations from the state’s Environmental Justice Task Force to reduce the environmental and health disparities of its low-income and people of color residents. One goal of the Act is to reduce the contamination of traditional foods, which results in “generational health and ecological problems, particularly on small reservations.” The state’s agencies are required (i) to create and adopt equitable community engagement plans to facilitate and support “the meaningful and direct involvement of vulnerable populations and overburdened communities,” and (ii) must conduct an “environmental justice assessment” for a significant agency action, which requires, where applicable, the use of cumulative environmental health impact analyses that consider “the effects of a proposed action on overburdened communities and vulnerable populations.”

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While there is no federal statute, these state statutes are examples of proactive approaches to address inequality and the disproportionate impact that pollution has had in many places. To read more, please visit our EJ Resource, published in partnership with WE ACT for Environmental Justice.