In January, we reported on the issuance of an executive order on environmental justice (EJ) by the administration of outgoing Massachusetts Governor Patrick, provided a survey of the EJ framework in Massachusetts, and discussed some uncertainties about the impact of EJ policies given the gubernatorial transition that was occurring at that time.

Nine months later, we have a much better view of how the Baker Administration plans to address EJ issues and apply the EJ legal and policy framework to new projects. Some important issues remain pending, and the Executive Office of Energy and Environmental Affairs (EEA) has posted a draft revision to its EJ policy which highlights those issues. There is a public comment period that runs until October 9, 2015. 

In the final weeks of the Patrick Administration, Governor Patrick issued a new executive order, E.O. 552, seeking to establish a stronger framework for promoting EJ concepts within the executive branch and calling on executive agencies, including EEA, to update their EJ policies within sixty days and take a number of concrete steps to incorporate EJ concerns into their decision making frameworks. As with other orders issued in the waning days of the administration, the incoming Baker Administration had several options: comply, repeal or amend the order. While the sixty-day update provision was not met, the Administration chose in large part to adhere to the existing order, and the issuance of the pending draft EJ policy is consistent with the spirit of E.O. 552 and signals that Governor Baker intends to incorporate EJ considerations into agency decision-making. 

There is an existing EEA EJ policy which the pending draft is intended to replace. The existing policy defines which neighborhoods will be considered to hold EJ populations, and then pledges to take several steps to increase the ability of these neighborhood populations to participate in permitting processes for new projects, including providing EJ training, developing fact sheets, creating outreach teams and public participation programs, enhancing public participation for certain projects under MEPA review, and requiring more stringent MEPA impact analysis and mitigation requirements for certain large projects located within one mile of EJ populations. Moreover, the policy provides for targeted inspection, enforcement and compliance assistance, targeted investigation of contaminated sites, and targeted creation and restoration of open space.

While the draft EEA policy largely remains consistent with the framework of the existing policy, it does contain some important proposed changes:

• Expansion of the definition used to identify EJ populations to include a new category addressing health disparities: EJ populations would include those areas where childhood cancer/lead poisoning or asthma rates are statistically significantly higher than the statewide averages;
• Expansion of the policy beyond environmental projects to include new energy projects;
• Additional targeted outreach efforts where impacts on EJ populations are being evaluated, including encouraging permit applicants to hold pre-application meetings with local communities, and using alternative dispute resolution techniques to address community concerns;
• Consideration of climate change impacts and climate change resiliency in EJ communities; and
• Development of targeted compliance initiatives by MassDEP for EJ populations where local environmental and public health conditions warrant increased attention.

Several of these changes are likely to be controversial.

The proposal to include health disparities as a criterion for determining which neighborhoods will qualify as EJ populations subject to the policy is not accompanied by a clear method to identify which areas of the state would be impacted. Currently, EJ populations are identified using census data that has been mapped by the Massachusetts Executive Office of Administration and Finance, and any person can access those maps using the state’s website. Adding criteria based on specific illness incidence rates will likely be quite difficult to implement in practice, and may create substantial uncertainty about which areas qualify. Further, it is not clear how project evaluations will necessarily address affected populations in those areas, and what enhanced procedures will apply.

The proposal to encourage pre-application meetings with local communities and use of alternative dispute resolution is also likely to generate substantial disagreement. Project developers in Massachusetts already face significant hurdles working through the panoply of federal, state and local permitting requirements. When permitting agencies are fully informed, developers typically have substantial burdens to overcome to shape their projects to gain community acceptance. Adding new procedural steps that empower non-governmental groups, as opposed to taking steps to enhance the effectiveness of current governmental permitting entities under existing law, may be viewed as unwieldy and uncontrollable, adding significant uncertainty to development decisions.