Environmental, Natural Resources, & Energy Law Blog

 

Washington State’s environmental justice ambitions are being thwarted by an unworkable state statutory definition of “overburdened community,” that should be supplanted by New Jersey’s definition of the same concept. After providing a high-level introduction to environmental justice and overburdened communities, this article analyzes these two state definitions of overburdened community (OBC) for their ability to deliver measurable results across three attributes of environmental justice: (1) procedural protection for the OBC, (2) substantive protection for the OBC, and (3) substantive remediation for the OBC—that is, obtaining a greater share of public investment that aims to provide environmental or public health benefits. While there are flaws in New Jersey’s definition that will be discussed, ultimately, its definition proves the better public policy lever because it is more easily administered, provides greater transparency, accountability, and susceptibility to ongoing performance evaluation.

 

Definition of Environmental Justice

 

The U.S. Environmental Protection Agency defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”[1] Washington State uses this EPA definition, but augments it by adding a second sentence that focuses on remedial action: “Environmental justice includes addressing disproportionate environmental and health impacts in all laws, rules, and policies with environmental impacts by prioritizing vulnerable populations and overburdened communities, the equitable distribution of resources and benefits, and eliminating harm.”[2] This additional sentence came from the Final Report of a Washington State Environmental Justice Task Force, which noted the task force wanted agencies in the state to achieve these stated outcomes.[3]

 

The Washington State definition of environmental justice encompasses three goals. The first goal is to provide procedural protection the meaningful engagement of overburdened communities in decision-making. The second goal is to provide substantive protection. This means preventing unfair treatment in the form of disproportionate adverse impacts from pollution-causing commercial or industrial sites, or government infrastructure and programs. The third goal is substantive remediation through a more equitable distribution of public investment in overburdened communities.

 

This article will explore the benefits and advantages of the Washington and New Jersey definition of OBC across those three objectives of environmental justice.

 

 

 

Washington Law

 

In April of 2021, the Washington state legislature passed the Healthy Environment for All (HEAL Act). This landmark legislation created a new chapter in state environmental law.[4] The purpose of the law is to reduce environmental and health disparities.[5] The intent section cites a compelling state interest in preventing and addressing those disparities through changes in the administration of environmental laws and the allocation of funding “to remedy the effects of past disparate treatment of overburdened communities and vulnerable populations.”[6]Substantively, among other provisions, the law required specified agencies to conduct environmental justice assessments for significant agency actions, and to create and adopt a community engagement plan to obtain input from overburdened communities.[7]

 

In the same 2021 legislative session, Washington passed the Climate Commitment Act (CCA),[8] an economy-wide cap-and-invest regulation to reduce greenhouse gas emissions through the auction of covered emission allowances. The CCA provides that a “minimum of not less than 35 percent and a goal of 40 percent” of the investments from carbon emission allowance auctions “provide direct and meaningful benefits to vulnerable populations within the boundaries of overburdened communities.”[9]The Seattle Times reported that the CCA’s quarterly allowance auctions would produce state revenue of $1.7 billion in the first two-years. As discussed below, the first full biennial operating, transportation, and capital budgets of Washington State enacted subsequent to the landmark HEAL Act and CCA, appropriate $2 billion from CCA revenue[10]. Therefore, what is at stake for overburdened communities is $800 million the 2023-25 fiscal biennium.[11]

 

Sadly, the state will never be able to comply with the requirements to distribute auction revenues in this way because of its definition of “overburdened communities.” The definition is so flawed that it is impossible to measure progress in those communities over time, and those communities will never be able to hold lawmakers accountable for any failure to remedy environmental health disparity.

 

Washington defined “overburdened community” in a way that is practically impossible to manage and unravel. An overburdened community is defined as a geographic area where vulnerable populations face combined, multiple environmental harms and health impacts, and includes, but is not limited to, highly impacted communities as defined in RCW 19.405.020.[12] [Emphasis added to signify statutorily defined terms]. This definition is difficult to administer because of the web of interrelated statutory definitions, many of which include open-ended language that make mapping a geographic area with static boundaries impossible.

 

For example, a vulnerable population is defined to be any number of racial or ethnic minorities and any size low-income population, and the definition has the open-ended phrasing “including, but is not limited to.”[13]The statute states:

 

“Vulnerable populations” means population groups that are more likely to be at higher risk for poor health outcomes in response to environmental harms, due to: (i) Adverse socioeconomic factors, such as unemployment, high housing and transportation costs relative to income, limited access to nutritious food and adequate health care, linguistic isolation, and other factors that negatively affect health outcomes and increase vulnerability to the effects of environmental harms; and (ii) sensitivity factors, such as low birth weight and higher rates of hospitalization.

(b) “Vulnerable populations” includes, but is not limited to:

(i) Racial or ethnic minorities;

(ii) Low-income populations;

(iii) Populations disproportionately impacted by environmental harms; and

(iv) Populations of workers experiencing environmental harms.

 

Next, one must try to determine whether one of those vulnerable populations has experienced combined, multiple environmental harms—an inquiry which requires a full historical investigation and a forward-looking projection because of the definition:

 

“Environmental harm” means the individual or cumulative environmental health impacts and risks to communities caused by historic, current, or projected:

(a) Exposure to pollution, conventional or toxic pollutants, environmental hazards, or other contamination in the air, water, and land;

(b) Adverse environmental effects, including exposure to contamination, hazardous substances, or pollution that increase the risk of adverse environmental health outcomes or create vulnerabilities to the impacts of climate change;

(c) Loss or impairment of ecosystem functions or traditional food resources or loss of access to gather cultural resources or harvest traditional foods; or

(d) Health and economic impacts from climate change.

 

An overburdened community also includes, but is not limited to, any highly impacted community:

 

“Highly impacted community” means a community designated by the department of health based on cumulative impact analyses in RCW 19.405.140 or a community located in census tracts that are fully or partially on “Indian country” as defined in 18 U.S.C. Sec. 1151.[14]

 

In sum, this definition of overburdened community has multiple structural problems that make administration difficult. The definition references three other defined terms: vulnerable population, environmental harm, and highly impacted community. Each of these definitions is difficult to work with. Although, the Healthy Environment for All (HEAL) Act is clear that overburdened communities are to be “geographic areas,” and the CCA, passed the same year, emphasizes that at least 35 percent of revenue is to be invested “within the boundaries” of these overburdened communities, the peculiar drafting of the law makes it exceptionally difficult to map and identify those communities under the criteria in the statutory definition.

 

Remarkably, fully two-years after passage of the CCA and the HEAL Act, the Washington State Operating Budget for 2023-25 was passed with budget appropriations directing the Department of Ecology to create a process to track state agency CCA expenditures, including the amount of each expenditure that provides benefits to overburdened communities.[15] The Operating Budget also contained an amendment to the HEAL Act, which among other things, requires state agencies to coordinate with Ecology and the Office of Financial Management to achieve the statutory goal of 35 to 40 percent.[16]The 2023-25 Operating Budget, Transportation Budget, and Capital Budget, the first biennial budgets passed subsequent to the HEAL Act, spend CCA dollars without being able to account in any way for amounts that will impact OBCs. Summary documents available to the public for each budget (Operating, Transportation, and Capital) describe CCA spending by project or program, without reference to geographic areas.[17]

 

The bottom line is that after the first round of spending of CCA dollars there will be no way to know what percentage went to OBCs, there was no outreach to identifiable OBCs for meaningful input and participation in decision-making on the spending, and no viable way to measure environmental or public health impacts to OBCs from these appropriations exists.

 

In contrast, as discussed below, New Jersey’s laws relating to environmental justice issues provide much clearer parameters.

 

New Jersey Law

 

New Jersey defined “overburdened community” to mean any census block group, as determined in accordance with the most recent United States Census, in which: (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency. N.J.S.A. 12:1D-158.

 

The ability to map the boundaries of an overburdened community is critical for all three components of environmental justice: procedural protection, substantive protection, and remedial action. A state agency cannot conduct effective outreach to solicit meaningful involvement in decision-making without knowing the boundaries of the neighborhoods in which to seek public participation. Neither state agencies, third-party researchers or advocates can evaluate fair treatment of a community without being able to locate and define the boundaries of the community. Finally, evaluating whether environmental conditions have improved requires assessing a baseline in an area and gathering data over time from the same area.

 

New Jersey’s definition facilitates all three of these critical components of environmental justice. The New Jersey Department of Environmental Protection had a website with a map of census tracts meeting the state law definition of overburdened community up and running within 90 days of enacting its statute.

 

Washington State, by contrast, has no map completed two years after the April 2021 enactment of the HEAL Act.[18]

 

One downside of the New Jersey approach is that the criteria have nothing to do with environmental harm, and everything to do with demographic data. As such, a predominantly white, English-speaking community that had disproportionate impacts from polluting facilities—if it existed, would go unmapped under the New Jersey approach, but presumably would be captured under the Washington approach.

 

Another negative of the New Jersey law is that one cannot lift a community out of overburdened community status through environmental performance, only demographic change. In order to escape the designation of OBC, the community would have to gentrify (wealthy people moving in), homogenize ethnically (more than 60% must identify as other than minority or tribal identity), or homogenize linguistically (more than 60% must be English proficient).

 

There could be some disadvantages of importing the New Jersey definition to Washington without changes. Washington State, like most Western states, has some very large rural census tracts in which dissimilar environmental conditions may exist. With a census-tract approach relatively under-burdened communities may receive benefits. However, this can be ameliorated. For such communities, appropriators can draw eligibility guidelines for grant programs more narrowly—for example, that an agency should award riparian habitat improvement grants only in the eastern half of the census tract if that area is lacking these resources as compared to the western half. Another approach could be to designate subunits within census tracts over a certain size (for example, 400 square miles) and to then evaluate each subunit separately for eligibility as an “overburdened community.” Alternatively, for any census tract larger than X (400 sq. miles) subunits must be designated and evaluated separately for eligibility to be designated as an “overburdened community” (such that X, becomes X1, X2, X3, and X4 community). The only downside of this approach is that census tracts are supposed to have the benefit of roughly equal population, and this process would produce overburdened communities that are theoretically eligible for state funds equal to a census tract community while being a fraction of the population.

 

On balance, Washington should amend its statue to be more like New Jersey. The funding at stake is substantial, and the express legislative intent was for a quantifiable amount of money to be directed to geographic areas that have experienced environmental harms and achieve a more equitable distribution of benefits.

 

Conclusion

 

Nearly two years after enactment of the HEAL Act, Washington state executive branch agencies each claim that the identification of an overburdened community must occur on a case-by-case basis, changing for each program and grant opportunity. No overburdened community has been mapped. By contrast, New Jersey used a definition involving census tracts, quantifiable measures for identifying those census tracts from an identified data source—the U.S. Census. Significantly, New Jersey required agencies to publish a list of overburdened communities within 120 days of the enactment of its environmental justice law. N.J.S.A 13:13-159 (requiring a list of overburdened communities on a public website). This creates transparency, accountability, and the ability to monitor and evaluate performance on environmental health metrics from a known baseline. Washington State should recognize that there is a better way to identify overburdened communities and deliver environmental justice. The old adage pertains, you cannot manage what you cannot measure, and at the present time Washington State cannot measure how much spending is going to OBCs.