The connection between environmental justice (EJ) and the California Environmental Quality Act (CEQA) has always been a tenuous one. While many in the public believe an environmental document should provide EJ analyses or other social impacts of projects, the confines of CEQA do not easily allow for it. In particular, CEQA is generally concerned with physical environmental impacts of a particular project, not necessarily impacts of past decisions (which are often what have led to EJ concerns). In an effort to address health effects in low-income communities and communities of color, the California State Legislature passed Senate Bill (SB) 1000 into law in 2016, requiring local governments to identify environmental justice communities (called “disadvantaged communities”) in their jurisdictions and address EJ in their general plans. This law requires the inclusion of an EJ element when a lead agency is updating two or more General Plan elements and provides an opening for including EJ in CEQA documents.

National

The EJ movement was born from economically impoverished neighborhoods that experienced environmental injustices throughout decades of institutional neglect. In the 1990s, a number of federally funded programs and initiatives addressing these concerns led to President Bill Clinton signing Executive Order 12898 to focus federal attention on the environmental and human health conditions of minority and low-income populations with the goal of achieving environmental protection for all communities.[1] This Executive Order produced guidance at the federal level on how to incorporate EJ into National Environmental Protection Act (NEPA) documents.[2] The approach identified in federal guidelines (White House CEQ 1997; USEPA 1998) focuses on income and minority status. Lower-income and ethnic minority populations in the communities are evaluated on whether they would bear disproportionate health or environmental effects in comparison to the general population.

State

While the federal guidelines are more refined, at the state level, recommendations are less well developed. The California Governor’s Office of Planning and Research (OPR) has released recommendations about how to define EJ communities.[3] Environmental Justice communities are identified as disadvantaged communities. Disadvantaged communities are defined as low-income areas disproportionately affected by environmental pollution and other hazards that can lead to negative health effects through adverse environmental living conditions. Indicators for disadvantaged communities include educational attainment, lack of employment, housing burdened low-income households, linguistic isolation, poverty, race and ethnicity, single-parent households, lack of American citizenship, violent crime rate, and inability to vote.

OPR recommends jurisdictions analyze a host of issues to address EJ concerns. These issues include pollution exposure (e.g., air quality, water quality, and land use compatibility), access to public facilities, fresh foods and physical activity, safe and sanitary homes, enhancing civic engagement, and addressing compounded health risks due to climate vulnerability. Correcting these issues is believed to alleviate the adverse effects of degraded environments and improve the livability in historically disadvantaged communities. Despite this guidance, however, it is still unclear when and how (or if) these analyses should be incorporated into CEQA documents. There are currently no formal requirements or procedures to evaluate potential environmental justice impacts under CEQA.

When preparing an Environmental Impact Report (EIR), there is an opportunity to determine if any EJ community exists (or if the project itself is within an EJ community) and provide that information within the environmental setting of the relevant EIR section. For example, Population and Housing sections of EIRs often provide demographic information regarding the project area. Adding selected EJ metrics can provide additional insights into the characteristics of the project area. Because air quality is an EJ area of concern, and because recent case law has emphasized the need to explain the connection between poor air quality and health impacts, adding an EJ analysis into the Air Quality sections could create a more robust discussion of impacts.

The connection between an EIR’s Land Use section and EJ can also be explored. In particular, land use includes the following checklist question:

XI(b) Cause a significant environmental impact due to a conflict with any land use plan policy or regulation adopted for the purpose of avoiding or mitigating an environmental effect?

Within the setting, or impact analysis, a discussion of EJ policies (particularly in a General Plan EIR) creates an opening for a solid EJ analysis.

Lastly, as many EJ communities deal with polluted land or water, an EIR’s Hazards and Hazardous Materials section provides an opportunity to discuss EJ issues, particularly regarding the history of the community and the policies or mitigation measures needed to correct previous injustices while ensuring they do not occur again in the future.

Within a Mitigated Negative Declaration (MND), Sustainable Communities Environmental Assessment (SCEA), or other streamlined documents, there are fewer options because the environmental setting is not required in the same manner as within an EIR. Nonetheless, as demonstrated above, multiple opportunities exist within the checklist questions themselves to introduce environmental justice. EJ analysis may be included in the Air Quality, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and Planning, and Mandatory Findings of Significance sections. Further, if tiering from an environmental document for a General Plan that addressed EJ, the analysis could also be easily incorporated.

What are the benefits of introducing an Environmental Justice discussion into CEQA?

From a practitioner’s perspective and what we have heard from our clients, in some communities where EJ is a major concern, the lack of EJ analysis makes the environmental document perceived as less credible. We can always explain that it is not required, but perception is often reality. Moreover, incorporating an EJ component, particularly in long-range planning documents, provides benefits in the adaptation of such measures by CEQA in the future, and as a result, provides greater benefits for the community. An EJ analysis could also provide more robust, long-lasting, and sustainable development projects, keeping in mind that EJ is supposed to correct previous environmental injustices and provide a safe, healthy place to live and work for generations to come.

What are the drawbacks?

From a legal perspective, it is always a legal risk to add a non-required element into a CEQA document. Certainly, this was the case with the San Diego Association of Governments (SANDAG) in 2006. SANDAG included an EJ analysis within their Regional Transportation Plan (RTP) EIR and was “thanked” with a lawsuit challenging it (and many other parts of the EIR).[4] The case made its way to the California Supreme Court in 2017, in which the Supreme Court reinforced the general rule that although lead agencies have substantial discretion in determining how to evaluate environmental impacts and significance thresholds, they cannot “shirk their responsibilities” when complying with CEQA. The case was remanded to the Court of Appeal to address inadequacies of the EIR. The case of the 2006 SANDAG RTP EIR is a clear example of how a jurisdiction can be entangled in a legal nightmare, and no one wants to put a client at unnecessary risk.

Final thoughts 

Factually, ethnic minorities and low-income Californians are more likely to live in or near polluted environments and to have suffered the ill effects of air and water contamination and soil toxicity.[5] Implementing EJ policies can help alleviate environmental issues for disadvantaged communities and ensure a safer living and working environment.

In terms of addressing and implementing EJ in California, there seems to be a misalignment in priorities between the State’s legislature (elected body) and the CEQA Guidelines (statutory). Through laws like SB 1000, the legislative body is pushing the practice in the direction of correcting previous adverse effects to disadvantaged communities. It could just be a matter of time before the CEQA Guidelines catch up. SB 1000 provides the first solid opening to include EJ analysis within CEQA. While there are several ways to accomplish it, the approach should always be tailored to the client and the project.

 

[1] Environmental Protection Agency. Executive Order 12898. February 11, 1994. Available online: https://www.epa.gov/environmentaljustice.

[2] Environmental Protection Agency, Executive Office of the President. Environmental Justice Guidance Under the National Environmental Policy Act. December 10, 1997, https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf.

[3] Office of Planning and Research. General Plan Guidelines Environmental Justice Element. June 2020, Available online; https://opr.ca.gov/docs/20200706-GPG_Chapter_4_EJ.pdf.

[4] Cleveland National Forest Foundation, Center for Biological Diversity and Sierra Club v. San Diego Association of Government Board of Directors (2017).

[5] The Los Angeles Times. Why Communities Fighting For Fair Policing Also Demand Environmental Justice. June 4, 2020. Available online: https://www.latimes.com/environment/newsletter/2020-06-04/why-communities-fighting-for-fair-policing-also-demand-environmental-justice-boiling-point.

Jessica Kirchner Flores and Yasmeen Hussain contributed to this article. 

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