The most vulnerable and environmentally over-burdened communities across Massachusetts’ 351 cities and towns suffered a great loss last week. The Supreme Judicial Court had an opportunity to bring real teeth to the Commonwealth’s Environmental Justice Policy, a landmark policy that has a lot of heart and good intentions, but like most uncodified policies, lacks any bite. Instead, the Court undermined the clear intent of the policy and left communities of color and low-income communities across the state in even greater peril than before the high court rendered its decision.
At the center of the case is the Energy Facility Siting Board’s approval of a 350-megawatt natural gas power plant to be located in Brockton. This densely populated, largely low-income community of color – a place with elevated rates of asthma and other respiratory diseases – is one of the most environmentally over-burdened cities in the Commonwealth. A group of concerned residents and, notably, the City of Brockton itself called foul, citing the lack of analysis of impacts to a Brockton environmental justice (EJ) community, and appealed the decision to the high court.
Issued in 2002 the Massachusetts Environmental Justice Policy (EJP) lays the framework for agencies within the Executive Office of Energy and Environmental Affairs to create their own mission-specific strategies that promote the fair treatment and meaningful involvement of all people – particularly low-income people and people of color – and equal access to environmental benefits such as parks and grant programs. The policy explicitly mandates strict compliance with Title VI of the federal Civil Rights Act of 1964, which prohibits recipients of federal funding like the Commonwealth from implementing their programs in a way that discriminates against people based on race, color, or national origin. To date, the Siting Board has failed to develop its EJ strategy, and the Court left open the question of whether or not the Siting Board should be required to.
In March, Supreme Judicial Court justices listened to a crush of lawyers before a packed audience give oral argument on a host of legal issues raised by the Brockton Power siting decision. (A CLF colleague termed it “the Superbowl for environmental justice,” and it certainly felt that way.) Much of the attention focused on the EJP issue, and CLF submitted a carefully tailored brief focused on the history behind the EJP.
The Court rightly ruled that the issue was properly before the Court, dismissing Brockton Power’s claim that the SJC had no jurisdiction to consider the issue. However, the Court set a withering legal precedent, holding there was no duty to apply substantive equal protection principles during the Siting board’s process, because there was no mandatory environmental impact report required under the Massachusetts Environmental Policy Act (MEPA).
This is deeply troubling. Although the Court hinted in a footnote the Siting Board may eventually need to develop an agency-specific EJ strategy, the Court’s decision means essentially that a project with potential impacts on EJ communities will not receive any further analysis beyond the MEPA analysis, if there is any EJ analysis under MEPA at all. That one agency could ride on the coattails of another without taking a hard look at EJ impacts through a lens unique to that agency’s mission was certainly not the intent of the Environmental Justice Policy, and the policy is not vague on the issue.
Due to unresolved technical issues, it’s still unclear if the Brockton Power project can move forward. But where environmental justice is concerned, the time has come for EJ advocates to renew efforts to secure a gubernatorial executive order or to seek an EJ law during the new legislative session next January.