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Environmental Justice Comes of Age with New Science-Based Screening Tools

lawson, kristina, manattThis past April, the state of California released a first-of-its-kind statewide environmental health-screening tool.  Known as CalEnviroScreen, 1.0, the tool seeks to identify those California communities most burdened by pollution and most vulnerable to its effects.  The California Office of Environmental Health Hazard Assessment (OEHHA), which developed the tool jointly with the California Environmental Protection Agency (CalEPA), indicates that the tool is also intended to help state decision-makers prioritize resources to target grants, investments, cleanup efforts, and enforcement actions to California’s most disadvantaged communities.  In other words, this tool is intended to help state lawmakers direct monetary resources based on environmental justice principles and CalEPA’s environmental justice mission.

What is Environmental Justice?

According to the federal Environmental Protection Agency (EPA), “environmental justice is the goal to be achieved for all communities so that: (1) people of all races, colors, and income levels are treated fairly with respect to the development and enforcement of protective environmental laws, regulations, and policies; and (2) potentially affected community residents are meaningfully involved in the decisions that will affect their environment and/or their health.”  California has a similar definition of environmental justice codified in its state law as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation and enforcement of environmental laws, regulations, and policies.

Over the years, the environmental justice movement has been marked by a number of significant legal milestones, including the passage of the Civil Rights Act of 1964 and the establishment of the EPA in 1970.   California has also long played a significant role in the environmental justice movement.  In the early 1960s, California farmworkers organized to fight for what we now know as “environmental justice” – protection from toxic pesticides in California’s farm fields.

Federal Environmental Justice Tools

At the federal level, a number of tools already exist to identify areas with potential environmental justice concerns.  For example, the EPA currently uses the Environmental Justice Strategic Enforcement Assessment Tool (EJSEAT) to identify areas with potentially disproportionately high and adverse environmental and public health burdens.  The EJSEAT tool includes four data set categories:  (1) environmental, (2) human health, (3) compliance, and (4) social demographics.  Within these categories, the tool evaluates matters such as infant mortality, violations and inspections at major facilities, National Air Toxics Assessments risks and indices, and certain population factors.  Unlike the new CalEnviroscreen tool, at the present time, use of the EJSEAT tool is limited to internal use by the EPA.

Also available at the federal level is the “Toolkit For Assessing Potential Allegations of Environmental Injustice.”  Colloquially referred to as the EJ Toolkit, this document provides a framework for understanding environmental justice from a policy perspective, and presents approaches to responding to or preventing potential environmental injustice situations.  Like the EJSEAT tool, the EJ Toolkit is intended to be used internal to the EPA.  In fact, the stated target audience is the EPA’s national team of environmental justice coordinators.  However, the EJ Toolkit makes clear it is just a tool to be used for preliminary assessments, and may not be relied upon in the context of specific complaints.

California’s Environmental Justice Tools

Over the past couple of years, California has developed a series of tools dedicated to addressing and understanding environmental justice issues.  Less than two months ago, on June 28, 2013, CalEPA announced the formation of a new agency-wide working group to improve compliance with state environmental laws in communities most burdened by environmental pollution.  According to the working group’s charter, the purpose of the working group is to “continue and enhance existing efforts to incorporate environmental justice into California’s environmental compliance and enforcement strategies and priorities.”

CalEnviroScreen 1.0

Another key component of California’s environmental justice strategy is the new California Communities Environmental Health Screening Tool, Version 1.  Known as CalEnviroScreen 1.0, this tool was developed by OEHHA in furtherance of the policy to integrate environmental justice principles throughout CalEPA’s boards, department and offices.

CalEnviroScreen 1.0 is a science-based tool for evaluating multiple pollutants and stressors.  The individual pollution burden indicators that the tool evaluates include air quality (ozone and PM 2.5), diesel particulate matter, pesticide use, toxic releases from facilities, traffic density, cleanup sites, groundwater threats, hazardous waste facilities and generators, impaired water bodies and solid waste sites and facilities.  The tool also evaluates population characteristics such as age, asthma, low birth weight infants, educational attainment, linguistic isolation, poverty, and race/ethnicity.  When the tool evaluates a particular location, each individual component is scored, and these scores are then combined to create an overall CalEnviroScreen score.  The analysis is comparative, ranking zip codes statewide.

In CalEPA’s guidance document for CalEnviroScreen, it is noted that the tool is supposed to be used primarily to carry out CalEPA’s environmental justice mission by guiding grant programs, budgeting, and planning for compliance.  The tool is also intended for use by local and regional governments.  While it is not intended for direct use by local agencies in their local entitlement processing, it may be helpful in understanding the environmental burdens and vulnerabilities of particular jurisdictions, which may drive future local land use planning decisions.

In addition, CalEnviroScreen will also be used to help allocate a significant percentage of the funds generated by California’s new carbon auctions.  According to the state law requirements for the new carbon auctions, no less than twenty-five percent of the available proceeds from the auctions must be allocated to projects that will benefit “disadvantaged communities.”  Ten percent of the auction proceeds must be directly allocated in those disadvantaged communities.

The tool is not without controversy.   There is a statewide concern that the tool will integrate an environmental justice analysis requirement into California’s environmental review process for new development projects.  And local chambers of commerce and other local organizations are concerned that the tool will drive people away from the most vulnerable communities and exacerbate the problems it is trying to correct.

While the California tool is a first-of-its kind tool in terms of its availability to the general public, it is likely that use of such interactive tools will become much more common across the country.   Such tools have the potential make the environmental justice movement not only about environmental protection through activism, but also about direct science-based investment in vulnerable communities.

Kristina Daniel Lawson is a partner in the Land, Environment and Natural Resources Division in the San Francisco office of Manatt, Phelps & Phillips, LLP.  Her broad advisory and advocacy practice focuses on all aspects of California land use and environmental law, and she is a recognized expert in matters involving the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). Ms. Lawson can be reached at (415) 291-7555 or klawson@manatt.com.

This column is part of a series of articles by law firm Manatt, Phelps & Phillips, LLP’s Energy, Environment & Natural Resources practice. Earlier columns in the third edition of this series discussed Nanotechnology Regulation, Federal Chemical Regulation Reform, Efforts to Address Climate Change and What the Sequester Means for Environmental Regulation.

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