Environmental Justice and the Demographic Threshold: Are Benefits Reaching Communities at Risk?

Introduction

Acomprehensive approach to environmental justice is threefold and must consider (1) equity in the distribution of environmental risk, (2) recognition of the diversity of the participants and experiences in affected communities, and (3) enhanced participation in the political process which creates and manages environmental policies.1 These components are intricately woven together as disparate distributions of adverse environmental conditions more often affect certain demographic groups, necessitating their enhanced participation in the process that governs their right to a clean and healthy environment.

The political approach to environmental justice began in 1992 with the creation of the federal Office of Environmental Justice and the National Environmental Justice Advisory Council in 1993. President Clinton then established Executive Order 12898 (EO) in 1994, directing all federal agencies to consider environmental justice in activities affecting low-income and minority communities. Although not directly applicable to states, the EO does require states to consider environmental justice for all activities receiving federal Department of Transportation funding.2 Connecticut was the first state to establish its own environmental justice policy in 1993, however, the number of states to do so has steadily increased since that time.3 Forty-one states currently have statutes, regulations, or other initiatives relating to environmental justice; six have statutes that explicitly reference environmental justice; and nineteen have statutes that implicitly address environmental justice in some manner, such as geographically limiting the number of hazardous activities.4

The method for evaluating and addressing environmental injustices varies by state, although most states limit environmental justice consideration to minority or low-income populations. We examine current state policies to identify which communities are receiving benefits and to ascertain what these benefits are. We ask what it means to be an “environmental justice community” in each of these states. In other words, is pollution reduced? Are additional resources provided to mitigate adverse conditions? We then consider and highlight the methodological implications resulting from the exclusive application of demographic threshold criteria. Specifically, we argue that the policy directives or benefits may not necessarily be reaching at-risk communities as a result.

Identifying the Environmental Justice Community

We identified nineteen active state environmental justice (EJ) policies or programs for consideration. A state was determined to have an environmental justice policy based on the presence of legislation or an executive order explicitly addressing EJ, or if the state has an active EJ taskforce, office, board, committee, or working group. Policies that were not designated specifically as environmental justice programs and only implicitly address environmental justice (e.g., anti-concentration laws or environmental health programs) were not included.

State definitions of EJ appear to grant EJ consideration to all people as most define the phrase to mean (in some variation) that “no group of people should bear a disproportionate share of society's negative environmental consequences.” This does not in practice, however, confer the right of all people to be free of disparate concentrations of environmental risk. Rather, it is applied in the sense of “equal protection of the law” to mean that no group of people, because of race or other characteristics, should bear an unfair share of environmental risk or pollution. As a result, the policy in practice is limited to demographic groups historically subject to unequal distributions of environmental harms.

We found that the demographic group(s) receiving environmental justice consideration varies by state, although nearly all are specific to minority or low-income populations. Tennessee and Texas are the only states to omit low-income communities. Other groups included for consideration include “foreign born” or those “lacking in English proficiency”5 and “marginalized and disenfranchised communities” (undefined) in Maryland.6 South Carolina has selected four specific communities as environmental justice “improvement communities” including economically distressed neighborhood and those lacking basic needs such as water and electricity, as well as a community needing revitalization after a train derailment.7

The criterion for determining minority or low-income status is also variable. For example, Connecticut has identified specific low-income communities where 30% of a census block group is 200% below the federal poverty level,8 whereas Massachusetts defines it as an area where median household income is at or below 65% of the statewide mean.9 The criterion for constituting a minority community is 25% in both Indiana10 and Massachusetts, 51.1% for urban areas and 33.8% for rural areas in New York,11 and 30% in Pennsylvania.12

States often do not provide justification for the threshold criteria used.13 New York State, however, cites the U.S. Environmental Protection Agency (EPA) Region 2 approach as a model for its criteria.14 The EPA Region 2 method used statistical reference areas to determine appropriate thresholds for demographic factors (minority and low-income). Using census block groups from 1990, cluster analysis was applied to data of two distinct groups (minority and non-minority/low-income and non-low income). An iterative approach was conducted to evaluate the natural breaks in the data until the two groups were determined to be as different as possible, resulting in the determined thresholds.15 Minority populations in urban areas, however, skewed the results for New York and New Jersey. As a result, the EPA developed separate criteria for minority communities in urban and rural areas. New York State ultimately adopted the Region 2 thresholds (23.59% low-income or 51.1% minority in urban areas and 33.8% in rural areas), whereas New Jersey merely limits to “minority and low-income” communities without delineating threshold criteria. Complete results from the analysis are depicted in Table 1.

Identifying the Elusive EJ Benefit

We evaluated the benefits for the nineteen active policies. The spectrum of state activities dedicated to environmental justice communities is extremely broad, ranging from translating environmental documents for non-native speakers to enhancing regulation of pollution in EJ communities. We categorized the benefits according to three primary approaches,16 depending on whether the activities are directed at state agencies (the internal management approach), at reducing disproportionate impacts in communities (the substantive approach), or at enhancing public participation in environmental justice communities (the public participation approach).

The internal management approach is akin to the directives of the federal EO 12898 where federal (or state) agencies are directed to consider environmental justice in agency activities that affect EJ communities. Under this approach, environmental justice concerns are integrated into the bureaucratic system.17 A number of states, including Illinois and Maryland, have developed boards or committees to evaluate the adequacy of existing state law to address EJ issues. South Carolina developed an advisory group to study EJ practices in state agencies, and New Jersey developed an advisory council specific to advising the state environmental agency on issues of environmental justice.

The substantive approach is perhaps the most significant as it is aimed at avoiding disparate impacts of environmental toxins in particular communities. The most direct means of achieving this end is through permitting of polluting activities. A limited number of states incorporate environmental justice into their permitting schemes, including New York, Massachusetts, and New Mexico. New York and Massachusetts both require the permit applicant to complete an enhanced review of the area surrounding the proposed project. In New York, applicants are required to complete a longer Environmental Impact Statement (EIS) in lieu of a shorter Environmental Assessment Form for certain projects and must include a description of any existing environmental burdens, as well as an evaluation of any additional burden or significant adverse environmental impacts resulting from the proposed action.18 In Massachusetts, projects within one mile of an environmental justice area (5 miles for those exceeding mandatory thresholds for air) necessitate enhanced analysis of impacts and mitigation measures. Enhanced impact analysis and mitigation review may include consideration of multiple air impacts, public health data for populations within the environmental justice community, as well as an analysis of alternative operations for reducing impacts and increasing environmental benefits within the community.19 New Mexico's environmental justice policy directs all state agencies to utilize available environmental and public health data for environmental justice communities when determining siting, permitting, compliance, and enforcement of existing and proposed industrial and commercial facilities.20 In addition to permitting, other substantive measures include increased monitoring and targeted enforcement and compliance of polluting facilities in EJ communities. Massachusetts maximizes brownfield clean-up21 and New Jersey has conducted enforcement sweeps of industrial facilities in specific geographic areas.22

Grant funding also falls under the substantive approach, as funding is allocated to improve conditions in environmental justice communities. States can provide research and educational grants ranging from $2,500 to $50,000 for communities that meet the criteria for an EJ community based on race and income.23 Previous grant winners include approximately $40k for the development and testing of handheld air pollution monitoring devices for a community in Brooklyn and $50k for a Bronx community to develop environmental science curricula and water quality monitoring along the Lower Bronx River.24 In Massachusetts, one million dollars was earmarked in 2003 for the identification, tracking, and remediation of hazardous waste and brownfield sites in environmental justice communities.25

The public participation approach is meant to create better informed administrative decisions26 in addition to giving the (traditionally disempowered) community the right to be heard and to take part in the environmental decision-making process.27 Typically, public participation measures apply to general communication regarding environmental conditions in these communities or to direct communication during the permitting process. General communication activities include publishing a citizen's guide outlining the environmental process (West Virginia), developing an Office of Equity to serve as an agency contact (Texas), and developing an environmental justice hotline for residents to call with environmental concerns (New York). Activities related to the direct communication during the permitting process can originate from the environmental agency or the permit applicant.

Permit applicants are sometimes required to develop public participation plans. In New York, this applies to all applications for major projects regulated under the State Pollutant Discharge Elimination System, including air pollution, solid waste management, and hazardous waste siting.28 Applicants must distribute information about the proposed action within the community and hold public informational meetings about the process. They must also submit reports during the process summarizing substantive community concerns and progress toward implementation. The state also provides alternative dispute resolution for environmental justice communities and project sponsors. Similarly, in Pennsylvania, permit applicants are required to develop public participation plans that facilitate the participation of residents and consider community characteristics, the area concerned, and the type of facility proposed. In addition, the applicant must consult with town officials to evaluate the need for a community benefit agreement (CBA) to mitigate potential effects of the proposed project. Mitigation efforts may include providing financial resources to offset impacts related to the environment, traffic, parking, and noise. Illinois proactively works with environmental justice communities through regularly held meetings to identify concerns surrounding proposed facilities and projects prior to the permitting stage. Similarly, although Oregon (2008) has not established public participation measures specific to the permitting process, it has directed the state's Environmental Justice Task Force to meet with communities and make recommendations to the governor regarding concerns raised.

States have also developed a myriad of public outreach activities apart from the permitting or environmental decision-making process. Called “Servicing EJ Populations,” the Massachusetts Office of the Secretary maintains fact sheets on programs available to environmental justice communities and provides the information in other languages, when necessary. The Office also maintains an environmental justice mailing list of community members for the distribution of newsletters and general outreach information.

Discussion

The exclusive application of the demographic threshold and its numerical variability amongst states is perhaps cause for concern. First, communities are bifurcated into two categories—the EJ community and the non-EJ community. Whether a community will be designated as an EJ community will depend on which state it is in. Although income and location may conceivably play a role in establishing thresholds, New York is currently the only state to consider such variability by establishing separate criteria for rural and urban areas. This is perhaps of critical significance in strong urban-rural dichotomies such as Indiana, having the City of Gary comprised of>90% minority residents juxtaposed with only 15% statewide.29

Second, the demographic threshold fails to consider environmental risk and exposure to environmental toxins. Unlike state approaches, the EPA Region 2 approach goes beyond the initial demographic analysis by conducting an environmental burden analysis. This analysis evaluates air emissions, population density, land use, and ambient air quality mapping, resulting in an environmental profile of the community of concern. It is then statistically determined whether the community's environmental burden is disproportionately high and adverse compared to other communities.30 Although New York adopted the EPA Region 2 approach in part, the state did not incorporate an environmental analysis, thereby exclusively applying the demographic threshold approach for the designation of EJ communities.

California is the only state that currently considers the spatial distribution of environmental toxins in relation to the state's policy on environmental justice. The tool was developed in response to the California Environmental Protection Agency's 2004 Environmental Justice Action Plan, which called for guidance in the analysis of multiple pollution sources and their impacts in California communities. The method, however, is not used for the purpose of designating EJ communities. Instead, the goal is to identify “disadvantaged communities” by analyzing exposure and environmental effects coupled with population characteristics and socioeconomic factors.31

California predicts that the identification of these communities is anticipated to have significant impacts on state policy. Specifically, it will guide the state's administration of the state EPA's Environmental Justice Small Grant Program, community outreach efforts and environmental education programs, and provide additional information regarding cleanup and abatement programs. Perhaps most importantly, “knowing which areas have higher relative environmental burdens will help with efforts to increase compliance with environmental laws in disproportionately impacted areas.” The Agency declared that the state's definition of environmental justice as “the fair treatment of people of all races, cultures and incomes with respect to the development, adoption, implementation and enforcement of environmental laws…” should not be “just words or an illusory concept; rather it must be a goal to strive for and achieve.”

A number of states considered assessing cumulative or disparate environmental impacts for the analysis of environmental justice areas, including Michigan, New Mexico, New York, and Pennsylvania. The Michigan Department of Environmental Quality's Draft Environmental Justice Plan outlined the use of the EPA's Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT) to evaluate the distribution of environmental toxins in conjunction with demographic and health data for designating potential environmental justice areas.32 The Plan, however, was not adopted. Instead, under new gubernatorial leadership, a “strategy was developed to facilitate communication with environmental justice communities” was put in place.33 New Mexico also considered using the EPA's risk screening tools and incorporating disproportionality in permitting analysis,34 yet did not adopt the method. Pennsylvania35 and New York36 each developed working groups to develop a method for evaluating cumulative impacts. The recommendations of the Pennsylvania workgroup were never adopted and the New York workgroup was unable to reach a consensus on a method.37 In 2008, under the direction of New York Governor Patterson, an Environmental Justice Mapping Work Group was created to establish new criteria for defining environmental justice areas and to create maps that include permitted and unpermitted facilities to facilitate addressing pollution in over-burdened areas.38 Although the Group remains in communication, a lack of state support has resulted in dwindling enthusiasm.39 None of the states mentioned herein have, to date, adopted recommendations for the incorporation of cumulative impact analyses as part of their environmental justice programs.

Conclusions

The environmental justice community is at the foundation of an environmental justice policy. Policies directed at improving the environment in these communities must consider equity in the distribution of environmental risk, the diversity of the participants, and enhanced participation in the political process. These components are intricately woven together as disparate distributions of adverse environmental conditions more often affect certain demographic groups, necessitating their enhanced participation in the process that governs their right to a clean and healthy environment. State approaches that narrowly focus on the diversity of the participants by setting demographic thresholds for consideration fail to consider the other two components. The methodological implications of such an approach include the varying bifurcation of EJ/non-EJ communities, a lack of consideration for the actual distribution of environmental risk, and the inability to effectively target the specific health needs of these communities. Consideration for the actual distribution of risk as part of state policies on environmental justice would better align enhanced participation in the political process and pollution reduction measures with communities at increased risk.