Over the past several months, there has been a flurry of activity on environmental justice in Massachusetts, and more developments are expected shortly. This short summary is intended to recap a brief history of the way environmental justice principles have been applied in Massachusetts permitting, discuss the key policies that are currently in effect, and describe what is pending on the immediate horizon.
Environmental justice (EJ) is a concept that arises from the civil rights movement in the 1960s and 1970s. It is based on the proposition that the siting and operation of industrial facilities occurs disproportionately in communities with higher percentages of lower-income and minority residents because those communities have limited socioeconomic and political power and are therefore less able to fend off industrial development proposals. To counteract these effects, EJ proponents have sought to increase procedural and substantive review requirements for the siting and permitting of projects in or near EJ communities and to enhance governmental oversight of facilities located in or affecting these areas.
Federal EJ Policies
On the federal level, in 1994 then-President Clinton issued Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which directs each covered federal agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities.” This order, which remains in effect with some minor adjustments, requires each federal agency to develop and implement an environmental justice strategy. The order established a Federal Interagency Working Group on Environmental Justice to coordinate EJ policies across the federal government. In response to the order, U.S. EPA developed an environmental justice strategy, which has evolved over the years, and convened a National Environmental Justice Advisory Council, which serves as an information gathering vehicle and a source of published policy papers with recommendations on steps EPA should take to address EJ concerns.
While EPA has created a fairly large infrastructure to support consideration of EJ concepts in its activities, the impacts of its actions have been relatively muted. Just recently, EPA rolled out an internal screening tool to identify areas that may warrant the use of EJ policies. This tool, called EJSCREEN, is used to evaluate environmental and demographic indicators, including racial and income statistics, to identify EJ areas. Over the years since the 1994 Executive Order, EPA has issued a number of policy statements and guidance documents indicating individual steps it intends to take to promote EJ concepts, but only recently attempted to tie those steps together. Last year, EPA issued its Plan EJ 2014, which contains a list of EJ priorities and attempts to organize in one document the various policies and activities it has created and initiated under the EJ framework. Among those are goals for incorporating EJ concepts into rulemaking, permitting, and compliance and enforcement activities. As examples, EPA pledged to: finalize guidance on considering EJ in technical rulemaking, directed each region to develop an EJ implementation plan, and prioritize permitting actions for enhanced outreach in EJ communities where there may be a significant environmental or health impact or where an EJ community has shown an interest in a particular permit.
There has been sporadic litigation in the federal courts on the implementation of EJ policies, mostly in the context of environmental reviews of contemplated agency actions conducted under the National Environmental Policy Act (NEPA), which is the federal corollary to the Massachusetts Environmental Policy Act (MEPA). In these court cases, an EJ claim is usually raised challenging the sufficiency of the environmental review conducted by or on behalf of a federal agency under NEPA, including whether assessments were consistent with the EJ policies of the Council on Environmental Quality (CEQ). Typically, there are allegations that because a project had the potential to impact an EJ community the review should have been more robust. Most courts have reviewed environmental justice claims under the arbitrary and capricious standard in the federal Administrative Procedures Act, while a few others have not. Reviewing courts have generally found that agencies are required to address EJ impacts as part of their NEPA review procedures and consistent with CEQ guidance, and cases usually focus on whether the evaluation that was conducted sufficiently addressed the extent to which a project might have a disproportionate impact on minority or low income populations. See, e.g., Communities Against Runway Expansion v. FAA, 355 F.3d 678 (D.C. Cir. 2004); Coliseum Square Ass'n, Inc. v. Jackson,465 F.3d 215, 232 (5th Cir. 2006); Latin Americans for Social and Economic Development v. Federal Highway Adm’n, 756 F.3d 447 (6th Cir. 2014).
Massachusetts EJ Policies
In Massachusetts, EJ policy has been implemented under a 2002 guidance issued by the Executive Office of Environmental Affairs (now known as the Executive Office of Energy and Environmental Affairs (EEA)). In this 2002 guidance, EEA cites to the state Constitution, which provides a right to clean air and water and declares as a public purpose the protection of the people in their right to conservation of natural resources. EEA indicates that its guidance intends to build upon the national environmental justice framework by targeting state resources “to service those high-minority/low-income neighborhoods in Massachusetts where residents are most at risk of being unaware of or unable to participate in environmental decision-making.”
The EEA policy defines EJ populations as neighborhoods that meet any of the following criteria: median annual household income at or below 65% of state median, 25% minority residents, 25% foreign-born residents, or 25% non-English speakers. EEA pledges to take a number of steps, including EJ training, development of fact sheets, creation of outreach teams and public participation programs, publication of an EJ map identifying EJ Populations, enhanced public participation for certain projects under MEPA reviews and enhanced MEPA impact analysis and mitigation requirements for certain large projects located within one mile of EJ Populations, targeted inspection, enforcement and compliance assistance, targeted investigation of contaminated sites and cost recovery, and targeted creation and restoration of open space.
As with the federal EJ executive order, since its publication in 2002, the EEA EJ policy has been used as a vehicle to coordinate outreach efforts and as a guideline for the implementation of EJ reviews under MEPA. A recent decision this past summer by the state’s Supreme Judicial Court, City of Brockton v. Energy Facilities Siting Board, 469 Mass. 196 (2014), emphasized the limited effects of the EEA 2002 EJ policy on the MEPA review process for the siting of a large power plant. In that decision, the Court determined that where a proposed power plant project exceeded certain MEPA thresholds it was subject to enhanced public participation requirements under the 2002 EEA EJ policy, but because the project did not exceed the specific thresholds identified in the EEA EJ policy for enhanced impact analysis and mitigation, enhanced review and substantive mitigation requirements could not be required. Importantly, the Court specifically refused to find that the EEA EJ policy invokes any substantive equal protection components that would otherwise require enhanced analysis and mitigation, and therefore declined to find any rights to an EJ review under MEPA beyond those contained in the EJ policy.
In the final months of Governor Patrick’s administration, there was a concerted effort by the Commonwealth to step up the consideration of EJ principles and perhaps to extend the framework for EJ analysis beyond the limitations in the City of Brockton decision. EEA undertook an outreach effort with a loose affiliation of EJ groups operating as the Massachusetts Environmental Justice Alliance.According to one of the lead parties for these meetings, these groups held numerous discussions with EEA and exchanged multiple drafts of a potential executive order addressing EJ, culminating in the issuance of a new Executive Order on Environmental Justice on November 25, 2014.
The new Executive Order establishes a new framework for implementing EJ within EEA and across multiple state agencies. It also cites to the same state constitutional protections noted in the 2002 policy, and it establishes a number of new requirements that appear intended to create a permanent infrastructure for implementing EJ policies and procedures.
The Executive Order establishes a new Environmental Justice Advisory Council and requires EEA to update its EJ policy within sixty days (which extends into the new term of Governor Baker). In updating its 2002 policy, EEA must address “ensuring equal compliance and enforcement for facilities” in EJ communities, establish a process for reviewing MEPA thresholds that will require enhanced public participation and review, and ensure brownfield remediation in EJ communities. EEA must also revise its EJ community definition and review that definition every ten years thereafter, with EJ community map revisions every five years. The Executive Order also calls for each state Secretariat to designate its own EJ coordinator and to develop its own EJ strategy within 180 days. Each of these must provide for mechanisms to ensure the EJ populations are provided enhanced public participation rights and protections during public review processes.
The timing of the new Executive Order is interesting given that the EEA EJ policy has been in place since 2002, Governor Patrick was first elected in 2006, one of the EJ groups has indicated that it first proposed an EJ executive order in 2009, and a new governor took office on January 8, 2015. Most of the steps to be undertaken by the state to implement the Executive Order must be accomplished by Governor Patrick’s successor. When Governor Patrick was asked about the timing, he reportedly said: “We got it done when we got it done.”
The new Executive Order has the potential to significantly increase both the procedural and substantive requirements that would apply to new projects that might affect EJ Populations. The extent to which the new order will have an impact on environmental permitting and compliance in Massachusetts is unclear as it will in large part need to be implemented by the new Baker administration. As of the date of this publication, no public comment had been made by Governor Baker’s staff about their position on the Executive Order, and whether the order is to be followed, amended or rescinded.