Environmental Impact Review and Environmental Justice: How Hard Will It Be To Merge the Two? – JD Supra

Foley Hoag LLP - Environmental Law
Environmental justice is clearly an idea whose time has – finally – come.  The need to find the intersection between the search for racial justice and efforts to save the planet is undeniable.  If we get it right, we’ll be at least partially solving two problems at once.  First, mobilizing underserved communities in the fight against climate change and other environmental problems increases the number of voices arguing for aggressive action, making it more likely that the problems will be addressed.  Second, addressing climate change and other environmental ills won’t solve our racial problems, but it would certainly help address some of them.
None of this, however, means that it’s going to be easy to do.  In Massachusetts, our recently enacted climate bill has significant provisions addressing environmental justice, including language requiring that environmental impact assessments under the Massachusetts Environmental Policy Act address environmental justice concerns.  The MEPA office has now proposed regulations to implement the statutory changes.  Among the required changes will be an obligation to assess “disproportionate” impacts.  Oversimplifying a bit, project proponents will have to assess impacts on EJ communities located within one mile of a project, or five miles in the case of projects with air emissions impacts.
Let’s assume that there’s an EJ community within 4.5 miles of a proposed factory.  Putting stack height aside, one would normally assume that the impacts would be greater in the non-EJ communities closer to the location of the proposed factory.  Does that by definition mean that there will not be disproportionate impacts on the residents of the EJ community?  What if the impacts of the proposed factory, on their own, will indeed greater on the non-EJ community, but the cumulative impact on the EJ community, considering preexisting facilities, will be greater than in the non-EJ community.  Is that a disproportionate impact?
And what happens to the analysis of alternatives required under MEPA?  Traditionally, with very limited exceptions, the project proponent gets to select the project location, and the analysis of alternatives is limited to different (normally, smaller) projects in the same location.  It’s not obvious that that approach will cut it in an EJ world.  Will the MEPA office start to routinely ask developers to assess alternatives that include other potential locations, farther from EJ communities?
EJ is important.  We just have to be clear that a serious commitment to protecting EJ communities in the environmental assessment process is going to require substantially new thinking by regulators and developers alike.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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