Massachusetts Updates Environmental Justice Policy, But Leaves Room for Improvement

Phelps Turner | @phelpsturner

Two recent developments have renewed momentum for positive change to environmental justice laws and policies in Massachusetts.

First, the State released a long-awaited update to its Environmental Justice Policy – fifteen years after it first issued the policy, and two years after a mandatory deadline for updating it. And, second, a new bill introduced in the legislature seeks to enact permanent protections for environmental justice populations in Massachusetts.

CLF is encouraged by these developments and will continue to fight for better protections for those of us living in environmental justice communities in the Commonwealth. We share details about the updated Policy here, and will look more closely at the proposed legislation in a later blog.

A Long, But Imperfect Legacy of Environmental Justice in Massachusetts

Environmental Justice is the principle that each of us has a right to live in and enjoy a clean and healthful environment regardless of our race, ethnicity, nationality, or income. In 2002, thanks to the efforts of many stakeholders, the Executive Office of Environmental Affairs (now the Office of Energy and Environmental Affairs, or EEA) issued its original Environmental Justice Policy.

The purpose? To make environmental justice an integral consideration in the implementation of all its programs. The Policy was one of the first in the nation, and provided several procedural protections for those of us living in environmental justice communities. It was a positive step, but the Policy lacked adequate substantive protections and, most importantly, enforcement mechanisms.

In 2014, in an effort to further advance environmental justice in the Commonwealth, then-Governor Deval Patrick issued the Executive Order on Environmental Justice. Among other things, the order created the Governor’s Environmental Justice Advisory Council and required EEA to update its original Environmental Justice Policy within 60 days of the order. It also required each governmental department (not just EEA) to develop mission-specific environmental justice strategies.

As already noted, however, the updates to the Policy took more than two years, not the 60 days required. And to date, no department-specific strategies have been developed, and no one has been appointed to the advisory council.

Despite the failures in the implementation of the Executive Order, the long overdue update to the Environmental Justice Policy does include significant enhancements. For example, it adds protections for populations that experience higher than average rates of environment-related health problems and new measures intended to protect those of us who live in environmental justice communities from the impacts of climate change. But the update also removes several important components and falls short in providing adequate substantive protections for environmental justice communities – leaving considerable room for further improvement.

The Good and the Bad: Assessing the 2017 Updates

The positive highlights of the updated Policy include:

  • “Environmental Justice” now covers more areas of protection. The definition of “Environmental Justice” was expanded from the meaningful involvement and equal protection of all people and communities with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. It now adds energy and climate change to the types of laws to which environmental justice protections apply.
  • New protections for those of us with health conditions. An entirely new section of the policy now addresses the special risks posed to “Vulnerable Health EJ Populations,” those with higher than average rates of environment-related health problems, including childhood asthma, low birth weight, childhood lead poisoning, and/or heart disease. The policy not only recognizes these at-risk populations for the first time, but creates additional screening criteria for assessing the environmental and health burdens we already face.
  • New requirements concerning climate change and emergency planning. EEA agencies must now take measures to ensure that environmental justice populations – which are often at highest risk from climate change impacts – are equally protected from those impacts. The agencies must also work collaboratively to ensure that community emergency plans adequately address the particular risks and challenges of vulnerable environmental justice populations.

Despite these gains, however, significant ground was also lost in the Policy update, including:

  • Community liaisons eliminated. “Regional Agency EJ Outreach Teams,” which consisted of EEA liaisons who met periodically with community residents, are no more. These teams were formed in order to open lines of communication with communities, establishing task forces when appropriate and assisting with targeted enforcement initiatives. With the elimination of these teams, no one from the government is working on the ground, in direct contact with those living in environmental justice communities.
  • Decision making now muddled by more bureaucracy. The Policy removes the requirement that senior-level managers participate and actively support the Environmental Justice Working Group (a multi-agency stakeholder group comprising more than a dozen state agencies). Instead, the Policy now requires only “EJ points-of contact” that support the Interagency Environmental Justice Working Group (a group established by the 2014 Executive Order and comprised of Environmental Justice Coordinators designated by each EEA secretariat). As a result, environmental justice matters are now assigned to non-senior staff who lack decision-making authority.
  • Cuts to funding for cleaning up neighborhood blights. The policy removes more than a dozen provisions concerning investments in “Brownfields Revitalization and Environmental Restoration,” including a provision earmarking $1 million for contaminated sites in environmental justice communities. Thus, those of us living in communities that are already disproportionately burdened by environmental issues are now also deprived of essential funding for remediating and restoring our polluted land.

A Missed Opportunity to Strengthen and Lead

In addition to the gains and losses outlined above, the Commonwealth missed a prime opportunity to strengthen additional protections in this update. One key oversight is the failure to change the Massachusetts Environmental Policy Act, or MEPA, process. MEPA requires state agencies to study the environmental consequences of their actions and to mitigate environmental damages.

Currently, the thresholds that trigger an enhanced analysis under MEPA are too high, leaving many small, medium, and even large projects, like the 350-megawatt natural gas power plant proposed in Brockton, off the hook for a MEPA review. This means that the Commonwealth does not take into consideration the significant environmental and health impacts those projects will have on those of us living in nearby environmental justice communities – such as increased air pollution and environment-related health impacts – when issuing permits for them.

The updated policy does at least provide an outlet for stakeholder input on which thresholds are appropriate for enhanced community participation and/or enhanced analysis under MEPA. Nonetheless, the Commonwealth missed the chance to take meaningful action in addressing this issue.

 

CLF will be tracking how the updated Policy is implemented and will continue our push for improvements that will provide the full protections needed for vulnerable communities. Be sure to sign up for our email updates to receive the latest news on this and all of our work.

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