Innovations in U.S. environmental law traditionally occur at the state level, and environmental justice is no exception. Due to the highly polarized environment on Capitol Hill, current efforts to enact a federal EJ law have yet to survive the legislative process. One recent example was the Environmental Justice for All bill that did not even reach the House floor for a vote before the end of the 117th Congress session.
But the states tell a different story. In 2022—and before then—many states around the United States enacted and proposed many innovative and ambitious EJ laws. Numerous states also released new or updated EJ policies around public participation, cumulative impacts, permitting reforms, monitoring, and compliance, to name a few. For brevity, only a few will be highlighted in this blog.
There are several noteworthy trends that emerge from recently enacted EJ laws and policies. The first is the development of state-specific screening tools. More states are developing tools using census data and/or geographic information systems (GIS) to identify areas overburdened by pollution, EJ issues, and/or communities. It is well-known that existing national EJ screening tools might be outdated or do not accurately represent the unique dynamics of a specific area; thus more states are creating tools to fill the gaps.
For example, in June 2022, the Maryland Department of the Environment (MDE) launched the EJ Screening Tool. This tool was created to enhance “agency compliance, oversight, monitoring, and to enhance communication and outreach in areas with permitting activities in environmental justice, overburdened communities, or underserved communities.” More importantly, a bill introduced in the Maryland Senate early in 2022, which failed to pass, would have required a person applying for a certain permit from MDE to include in the application the Environmental Justice Score from the EJ tool of the census tract where the applicant is seeking the permit.
In Vermont, the Environmental Justice Act that was enacted in May 2022 also requires the creation of an EJ mapping tool. This Act establishes the EJ policy for the state of Vermont and requires state agencies to incorporate EJ into their work, rules, and procedures. In Wisconsin, the state’s Economic Development Corporation and three other state agencies in consultation with partner organizations, community members, and local governments are developing a Wisconsin Environmental Equity Tool (WEET). WEET is a web-based EJ and health equity mapping tool available to the public to locate Wisconsin’s most impacted communities.
The second trend is permitting reforms and cumulative impact assessments. In 2021, New Jersey enacted a law requiring certain facilities, including, but not limited to, those applying for air, water, toxics, solid wastes, and pesticides permits, to prepare a report detailing the environmental impacts of the proposed project, including cumulative impacts in overburdened communities, any adverse effects that cannot be avoided, and the public health impact on communities. Furthermore, Illinois and Delaware both considered but failed to pass laws in the 2022 legislative session that proposed permitting reforms and required a form of EJ impact assessments for certain facilities located in overburdened communities. The Illinois bill also would have established a process by which communities not designated as EJ communities could have sought such designation.
A third trend is the emergence of state policies to broaden stakeholder engagement in environmental decisionmaking. For example, in Minnesota, the state’s pollution control agency released in May 2022 an update of its 2015 EJ Framework. One of the goals of the updated framework is to increase the involvement of EJ communities in decisions and actions that impact them. The state is also encouraging facilities located in areas of concern for EJ to increase engagement with local governments and community groups early in the environmental review and permitting process to understand and address concerns. The agency is currently developing guidance for facilities on best practices for community engagement.
Another example is Pennsylvania. Although Pennsylvania’s EJ Public Participation Policy has been in effect since 2004, the state’s Department of Environmental Protection worked on a revision early in 2022. The revision was made in part to incorporate community input in the development of the public participation policy and to include a revised definition of EJ areas and populations. It also provides for interagency collaboration and EJ planning, mapping, resource and data development, translation processes, and EJ training for department staff and external partners. This public participation policy also strongly encourages permit applicants that meet certain criteria to meet and engage with community stakeholders.
Since there is a push for industries to be more proactive in engaging a wide range of stakeholders when developing projects, tools that present effective approaches to engage EJ communities have gained more relevance. Recently, ELI, in partnership with the Electric Power Research Institute (EPRI), developed a whitepaper aimed at public utility companies who are engaging in renewable and battery storage projects. It intends to be a practical resource for companies to identify EJ implications of these facilities, and to consider both challenges and opportunities in addressing these concerns. It also delineates a set of leading practices to advance each of the dimensions of EJ when siting, designing, constructing, operating, and decommissioning renewable energy and battery storage facilities.
The fourth and final trend identified is a renaissance of the movement to incorporate environmental rights amendments (ERAs) in state constitutions. To date, there are 14 states in the process of developing and enacting ERAs. In early 2022, New York codified the constitutional amendment approved by voters in November 2021 and the Maryland legislature considered but failed to pass a bill to include an ERA in the state’s constitution.
Reflecting on the many state innovations in EJ law and policy this past year, 2023 appears to be a very promising year. As D.C. politics continue to stall the enactment of a federal EJ law, states continue to pioneer in this space and set the bar for future national EJ efforts.
To learn more about innovations in EJ law, check out the latest edition of Environmental Justice: Legal Theory and Practice by Barry E. Hill, available through ELI Press at https://www.eli.org/eli-press-books/environmental-justice-legal-theory-and-practice-5th-edition.