Massachusetts Is Making Strides Toward Environmental Justice

The journey to the EJ EO

Environmental justice, which has its origins in the civil rights movement, is a grassroots movement to improve the quality of life for members of low-income communities and communities of color, with a goal to improve the ways in which environmental laws and policies are administered. As a result of grassroots organizing, in 1994, then-President William J. Clinton signed federal Executive Order No. 12898, ³ seeking to focus executive-branch attention on the environmental and human-health effects of federal agency decisions on minority and low-income populations. In Massachusetts, residents and workers directly impacted by environmental injustices organized to achieve local victories and advocate for state policy changes. The Massachusetts EJ legal framework is grounded in Article 97 of the state constitution, which was ratified in 1972, and which grants the people the right to a clean environment. In response to local victories and community organizing, in 2002, Massachusetts adopted its EJ Policy, seeking to make EJ an integral consideration in the implementation of all Executive Office of Environmental Affairs programs by requiring, in part, designation of EJ populations (i.e., based on criteria for a percentage of a census block group to be minority, low-income, foreign-born, and/or limited English language speakers), enhanced public participation for such populations, and impact analysis for certain qualifying Massachusetts Environmental Protection Act (MEPA) projects. Projects that are likely to cause damage to the environment require state MEPA review, which is similar to the National Environmental Policy Act (NEPA), to describe the environmental impact and, in order to proceed, project proponents must obtain an agency finding that all feasible measures have been taken to avoid or minimize said impact. The 2002 EJ Policy, in practice, did not trigger enhanced impact analysis for numerous projects because the project size fell just short of a MEPA threshold. The 2002 EJ Policy required several state agencies to develop EJ strategies, but most agencies had not developed such strategies.

To further advance EJ in Massachusetts, Alternatives for Community and Environment (ACE), ⁴ a non-profit organization with the mission of eradicating environmental racism and classism arising from the disproportionate concentration of environmentally polluting operations and lack of green space in communities of color and low-income neighborhoods, convened the Massachusetts Environmental Justice Alliance (Alliance) ⁵ in 2009. The Alliance is a network of community organizers, health professionals, academic researchers, and residents united to promote EJ. Some Alliance members, including ACE, had successfully advocated for the 2002 EJ Policy. In 2009, the Alliance considered numerous strategies for advancing EJ laws, regulations, and policies and decided to focus their energy on advocating for an executive order. For five years, the Alliance worked with representatives of multiple executive agencies to develop and negotiate an order amenable to all parties leading to the successful enactment of the EJ EO.

A power plant struggle echoed the need for an executive order

Concurrent to working toward a statewide executive order, many Alliance members were leading local EJ campaigns. One of those campaigns was led by residents living in close proximity to a proposed fossil-fuel electric generating facility in Brockton, a low-income community of color with numerous existing polluting facilities and poor health outcomes. Starting in 2007, the residents of Brockton and surrounding neighborhoods came together to fight against the proposed fossil fuel plant, the lack of state EJ strategies, and the absence of EJ impact analyses. A well-respected study demonstrated that power plants in Massachusetts are disproportionately located in communities of color and lower income communities. ⁶ In July of 2014, just a few months before the EJ EO was enacted, the Supreme Judicial Court (SJC) issued its first decision addressing EJ. In City of Brockton v. Energy Facilities Siting Board, ⁷ the SJC affirmed the Energy Facilities Siting Board's (EFSB) decision approving Brockton Power Company's petition to construct and operate a 350-megawatt electric generating facility. The court held that while the EFSB's application of the EJ Policy was subject to judicial review, the EFSB had properly applied the policy by requiring enhanced resident participation, and noted that the EFSB was not required to conduct an enhanced EJ impact analysis because the project did not exceed a threshold for MEPA review. Significantly, however, the SJC confirmed the additional substantive obligations arising from the EJ Policy, holding that it imposes a “general, but affirmative, requirement on all agencies covered by it … to develop strategies designed ‘to proactively promote environmental justice in all neighborhoods’ in a manner tailored to and consistent with that agency's ‘specific mission.’”

This decision marked the first time that any state authority acknowledged the 2002 EJ Policy requirement for certain state agencies to create EJ strategies, and found that the EFSB had no such strategy. The SJC noted that because the petition was filed within a few months after the EJ Policy became applicable to the EFSB, the agency reasonably could not be expected to have developed an EJ strategy or incorporated substantive EJ review into its consideration in time to apply to its review in the Brockton Power case. The decision clearly indicated that the EFSB and other agencies are expected to develop EJ strategies addressing how agency decisions will affect EJ populations and how resident participation will influence those decisions, and will not be excused based on timing in the next case. An EFSB EJ strategy may have altered the approval for the fossil fuel power plant. Based on studies by residents' expert witnesses presented to the EFSB, the power plant would have resulted in disproportionate environmental and public health burdens for Brockton residents.

The EJ EO expands the 2002 EJ Policy requirement for development of agency EJ strategies because it requires all executive agencies, not just traditional environmental agencies, to develop and implement EJ strategies by a specific deadline. Massachusetts agencies, such as the Departments of Economic Development, Public Health, and Transportation, are now required to address EJ through the development and implementation of EJ strategies.

Meaningful changes should result to benefit diverse stakeholders

The implementation of the EJ EO will present numerous opportunities for advancing EJ in the Commonwealth. For instance, executive agencies have the authority to require that additional MEPA thresholds, such as for large energy and transportation projects, trigger enhanced substantive review of how proposed projects affect EJ populations, and to address those impacts. Further, agencies may develop language access plans and encourage project proponents to interact with potentially impacted residents early in the design process.

Implementation of the EJ EO will result in benefits to all stakeholders, in particular EJ populations. A recent study concludes that, in most areas, lower-income people of color are more exposed to air pollution than higher-income whites. ⁸ The study also indicates that Massachusetts has the fourth worst racial disparities in the country with respect to public exposure to nitrogen dioxide, and air pollutants ⁹ linked ¹⁰ to asthma, ¹¹ decreased lung function in children, ¹² low birth weight, ¹³ and heart disease. ¹⁴ Similar studies indicate that lower socioeconomic populations in Massachusetts experience higher chronic exposure to outdoor nitrogen dioxide than those with higher incomes, ¹⁵ and that there are negative economic impacts of environmentally attributable health outcomes. ¹⁶ EJ strategies requiring the incorporation of substantive analyses of all benefits and burdens into environmental and public health review have the potential to reduce healthcare and litigation costs by ensuring stringent permits, discouraging disproportionate siting, promoting community support, and funding economic benefits.

Targeted enforcement, another requirement of the EJ EO, will lead to increased permit compliance and result in improved air and water quality. In response to recommendations by Massachusetts EJ advocates, the Department of Environmental Protection spearheaded a compliance initiative in an EJ population in western Massachusetts in 2013, ¹⁷ which resulted in the correction of multiple non-compliance issues related to hazardous waste and waste oil registration, documentation of illegal dumping, and follow-up with local enforcement officers. Continued enforcement initiatives, such as those required by the EJ EO, will ensure that all industrial and commercial ventures operate according to permit limits and will reduce health burdens in EJ communities.

There will also be concrete benefits to businesses and developers, including project proponents, who expend significant funds to design their projects, model potential impacts, and identify investors before filing a permit application. Project proponents can avoid expending resources on project changes and litigation if they plan earlier in their projects to meet with community stakeholders. This approach could lead to broader support for projects than might otherwise be possible. And the potential costs of more detailed site selection, project design, and public participation would be outweighed by the benefits.

Successful EJ EO implementation will also benefit electric-generating facility proponents. The City of Brockton v. Energy Facilities Siting Board decision and the EJ EO, when read together, require the EFSB to consider EJ when reviewing petitions to construct generating facilities. It is critical that the EFSB create and publicize its EJ strategy without delay, so that all stakeholders know what to expect during the EFSB review process.

New environmental benefits, such as increased green space, grant awards, and environmental monitoring, will also result from the EJ EO. The EJ EO requires state agencies to identify “economic development opportunities, environmental benefits, and other discretionary funding programs that … consider the needs” of EJ populations in the award process. This language expresses the intent to not simply assess environmental burdens in EJ communities, but to add environmental benefits there. The private sector has a role to play in creating and supporting community benefits. Private developers have already generated broad community support for projects through negotiating community benefits agreements, which can result in affordable housing, community spaces, local jobs and workers' rights, open and green space, public safety, support for small local businesses, and participatory planning processes, and which can advance community health. ¹⁸