Achieving Environmental Justice and Successful Project Filings
December 7th, 2022
The United States Environmental Protection Agency (EPA) defines Environmental Justice as the fair treatment of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
We’d want such protections for ourselves, or anyone, right?
Environmental Justice (EJ) is achieved when everyone enjoys the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
While few argue about the rationale or the end goals of EJ, achieving EJ in development projects can be costly and complex. This article presents the ABCs of EJ analysis and offers a pathway to achieving EJ and successful project outcomes.
Background
Created in 1992, the EPA’s Office of Environmental Justice (OEJ) coordinates Agency efforts to address the needs of vulnerable populations by decreasing environmental burdens, increasing environmental benefits, and working collaboratively to build healthy, sustainable communities.
Several Northeast states have established requirements to ensure that vulnerable populations are afforded the same degree of protections and decision-making process access. We will offer information on other states in our next Permitting Matters. In Massachusetts, the Executive Office of Energy and Environmental Affairs (EEA) has developed its EJ Policy to “help address the disproportionate share of environmental burdens experienced by lower-income people and communities of color” and to “ensure their protection from environmental pollution as well as promote community involvement in planning and environmental decision-making.”
The EJ policy is described in both the Public Involvement Protocol for Environmental Justice Populations (the “EJ Involvement Protocol”) and the Massachusetts Environmental Policy Act (MEPA) Interim Protocol for Analysis of Project Impacts on Environmental Justice Populations (the “EJ Analysis Protocol”), both with an effective date of January 1, 2022.
Assessing EJ Equity in Massachusetts
Under the EJ Analysis Protocol, a three-step process has been developed for assessing whether EJ populations have experienced existing unfair or inequitable environmental burdens within the DGA. The area within one mile of a project is usually defined as the designated geographic area (“DGA”), consistent with 301 CMR 11.02(b), and is used as the basis for analyzing potential Project impacts and for public outreach purposes, for larger projects that might exceed reporting thresholds, the DGA could be defined as a five-mile radius from the project site. As part of this approach, a series of mapping tools have been developed that focus on: (1) the rates of four vulnerable health criteria as it relates to statewide averages, (2) existing past and current polluting activities, and (3) a review of the RMAT Climate Resilience Output Tool. In addition, although optional, MEPA often requires the use of US EPA EJScreen tool and reporting of results using this tool.
Massachusetts EJ Criteria
In Massachusetts, areas are classified as to whether they meet the criteria of an Environmental Justice (“EJ”) population by using the United States Census data to determine whether a block group meets one or more of the following criteria:
1. The annual median household income is not more than 65% of the statewide annual median household income;
2. Minority groups comprise 40% or more of the population;
3. 25% or more of households lack English language proficiency;
4. Minority groups comprise 25% or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150% of the statewide annual median household income; or
5. The Secretary of the EEA has determined that a particular neighborhood should be designated as an EJ population.
The EJ Analysis Protocol applies “for any project that is likely to cause damage to the environment and is located within a distance of one mile of an EJ population; provided, that for a project that impacts air quality, such environmental impact report shall be required if the project is likely to cause damage to the environment and is located within a distance of five miles of an environmental justice population.” Under the EJ Analysis Protocol, the analysis must include:
In analyzing a Project’s impacts, MEPA emphasizes focusing on the nature and severity of the impact to the EJ population and comparing impacts between EJ and Non-EJ populations. The Project must consider impacts occurring during construction and operation, and whether the Project has the potential to impact greenhouse gas emissions or exacerbate global climate change impacts. In addition, the Project will also need to identify benefits as a result of the Project for any potentially impacted EJ populations.
The project’s environmental impact statement (EIR) filed with MEPA must show whether the nature and severity of its impacts will materially exacerbate any existing unfair or inequitable environmental or public health burden impacting the EJ population. If it does, it must describe the measures it will implement to mitigate these impacts. These measures are in addition to the measures the project will take to avoid, minimize, and mitigate its impacts more generally.
References:
For more information on Massachusetts EJ programs, please visit the Mass.gov information page on EJ populations in the Commonwealth.
Key Players:
Sonja Sax, M. S., Sc.D, is an environmental health scientist that specializes in evaluating exposure and health risk from environmental pollutants. Dr. Sax has over 20 years of experience in environmental regulatory assessment, health impact assessment and cost-benefit analyses. Sonja has managed large multi-year projects advocating for clients involved in litigation or providing permitting support. She has performed indoor and outdoor air quality investigations evaluating exposures and health impacts of airborne gases and particles. In 2019, she served as an advisor to the US EPA Clean Air Scientific Advisory Committee for the particulate matter and ozone National Ambient Air Quality Standards.
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Joseph Sabato, M.P.H., C.C.M, is an air pollution meteorologist with 15 years of experience in environmental consulting. He has worked with a wide variety of clients including government, industrial and commercial. Mr. Sabato has experience in air quality permitting, air dispersion modeling, environmental monitoring, noise measurement, environmental reporting, hazardous waste compliance, human health risk assessments, accidental release planning, FAA Obstruction Permitting, air regulatory compliance, public health assessments and exposure assessments. He has worked on air permit applications or air compliance reviews in over 15 states, provided environmental health assessments for assessing impacts from proposed industrial projects, and has broad experience with a range of environmental programs.