Towards Seamless Incorporation of Environmental Justice in the California Environmental Quality Act (CEQA)
It has become increasingly clear that climate change impacts do not disperse evenly among human populations. Too often, environmental harms most heavily affect environmental justice communities, which are predominantly comprised of minority or low-income individuals and groups. The overburdening of environmental justice communities has severe health and wellness impacts on populations across California. Addressing environmental protection more broadly, the California Environmental Quality Act (CEQA) aims to prevent significant environmental damage through a comprehensive and participatory review process. While CEQA assesses physical impacts on the environment, many of its Appendix G chapter questions broaden the conversation to impacts on vulnerable communities without explicitly addressing environmental justice. Here, existing chapter questions provide segues for the incorporation of key environmental justice concerns without requiring the creation of a new chapter. Specifically, CEQA could include environmental justice concerns in questions that mention “sensitive receptors” and questions that safeguard against conflict with general plans.
Background
CEQA currently addresses twenty impact areas, none of which mention environmental justice. As a framework, environmental justice has the potential to relate to all areas of CEQA because those on the frontline of many negative environmental impacts are often low-income minority populations. Here, the terms environmental justice community and disadvantaged community (DAC) are often both used to describe similar groups of people. These terms encompass predominantly minority and low-income residents who have experienced disproportionate impacts from an environmental hazard. The term “environmental justice community” broadens this definition to include groups that have experienced exclusion from environmental decision-making processes.¹ While not included in CEQA, the past 30 years have seen environmental justice become a priority at the federal agency level and within the state of California. In 1994, President Clinton signed Executive Order 12898 requiring federal agencies to avoid negative impacts on minority and low-income communities through programs concerning human health and the environment.² This priority carried through to the National Environmental Policy Act (NEPA), where federal agencies must consider environmental justice during environmental review.³ In 2013, the CalEPA’s Office of Environmental Health Hazard Assessment (OEHHA) developed an environmental health screening tool called CalEnviroScreen. This tool allows mapping and overlay of environmental stressors alongside socioeconomic and health data to compare the pollution burdens of environmental justice communities across the state.⁴ In 2016, SB 535 and AB 1550 authorized that a portion of the proceeds from California’s cap and trade program work directly to support DACs.⁵ AB32, the Global Warming Solutions Act of 2006, authorized this cap-and-trade program. Also in 2016, the signing of SB 1000 initiated the integration of environmental justice in local government planning efforts.⁶ In cities and counties containing DACs, SB 1000 encourages the incorporation of environmental justice policies into general plans.
Proposed Change
I propose that CEQA incorporate environmental justice into preexisting Appendix G chapters. While there are many state policies, tools, and programs aiming to address disparities, marginalized communities still remain more likely to live near environmental hazards and experience poor air quality, water quality, a lack of green space, and more.⁷ For example, there are well-established links between race and poor air quality, with African American, Latino, and Asian residents exposed to 43, 39, and 21 percent higher PM2.5 pollution than their white counterparts.⁸ Of the 3 to 4 million worldwide air-pollution related deaths per year, the majority are a result of particulate matter generated by vehicles, combustion, fire, and power plants.⁹ In California’s San Joaquin Valley, nitrate contamination in drinking water is more likely to affect Latinos and non-homeowners.¹⁰ Here, racial and socioeconomic factors significantly increase the likelihood of experiencing serious health impacts from contaminated air or water. Without action to include environmental justice in CEQA, development projects subject to review will have little incentive to consider impacts on those most vulnerable to environmental threats. As a result, we could expect to see more negative health outcomes for DACs. California, usually at the forefront of progressive environmental policy, must act to explicitly incorporate these concerns in environmental review. I propose two ways for the incorporation of environmental justice in current Appendix G questions — through the “sensitive receptors” definition and consultation with general plans.
Sensitive receptors
According to the California Air Resources Board (CARB), “sensitive receptors” include those at a higher risk of experiencing negative health outcomes from air pollution.¹¹ This includes children, the elderly, and asthmatics, with special attention paid to where these groups frequent, such as schools, nursing homes, and hospitals. Under the air quality Appendix G questions, lead agencies assess whether the project would expose such groups to substantial pollutant concentrations. Similarly, the hazards section asks whether a project emits or handles hazardous materials within one-quarter mile of a school. Both Appendix G questions highlight the importance of prioritizing certain groups due to their higher likelihood of suffering health impacts from exposure to an environmental hazard. I propose that the definition of a sensitive receptor expand to include environmental justice communities. Here, lead agencies could use the already-established CalEnviroScreen alongside their own mapping efforts for other types of sensitive receptors to identify where DACs might be located within the project boundaries. While there are CARB thresholds on how far air pollution sources must be from sensitive receptors to reduce impacts, it would be necessary to establish thresholds for DACs as a whole. While broadening the sensitive receptor definition would require careful consideration of new thresholds of significance, the prior existence of the CalEnviroScreen tool minimizes agency workload in assessing levels of significance for proposed projects.
General plan incorporation
Under SB 1000, cities and counties containing a DAC must incorporate environmental justice into their general plans if the jurisdiction is also revising two or more general plan elements.¹² Jurisdictions can use CalEnviroScreen to identify DACs, and those that do not meet these requirements may also choose to create an optional environmental justice plan element. Ultimately, this element aims to reduce the pollution and health burdens on DACs through programming and civic engagement. In CEQA, multiple Appendix G questions in the energy, land use, and noise sections ask whether the project would conflict with a state or local plan. I propose that CEQA amend these questions to also safeguard against conflict with the environmental justice element of a general plan. This wording change would explicitly require the environmental review process to consider DACs within the project boundaries and adhere to general plan stipulations. Because this analysis occurs on the local level by jurisdictions crafting a general plan, this change would not significantly burden lead agencies with further analysis. Rather, this would allow lead agencies and the project proponent to compare whether the project aligns with general plan standards specific to environmental justice. Once again, the existence of CalEnviroScreen significantly minimizes this workload.
Both changes are likely to result in benefits to the public in the form of improved health metrics and economic growth for communities experiencing poor environmental quality. Improved quality, in turn, can positively impact surrounding natural resources and wildlife.
Alternatives, challenges, and recommendations
There are a few major approaches to the incorporation of environmental justice in CEQA. The first, laid out thus far, would utilize existing Appendix G language as a segue for including DACs in environmental review. Alternatively, CEQA could establish environmental justice as an overarching framework through which lead agencies review projects, or it could add a new environmental justice chapter. The latter proposition would require significantly more energy, resources and public buy-in, especially because lead agencies would have to create full new chapters within environmental impact reports. In comparison, incorporation into Appendix G questions would heavily rely on already-established screening tools like CalEnviroScreen alongside general plan stipulations. Either way, incorporating environmental justice would incur costs in the time, energy, and personnel needed to develop thresholds of significance for what constitutes a significant impact on a disadvantaged community. Given that CEQA is a self-executing statute, the addition of environmental justice into existing Appendix G questions may also increase the number of lawsuits relating to a violation of a DAC’s rights or a concern that CEQA is unjustly blocking development.
As with any change to CEQA, there will be opposition. This is evidenced by former Assemblymember Cristina Garcia’s AB 1001, which would have required public agencies to consider environmental justice as a framework and develop mitigation measures for adverse air quality effects on DACs.¹³ This bill died in committee in June of 2022, and faced considerable opposition from various regional chambers of commerce, alongside agricultural, transportation, housing, and energy associations. Opposing groups cited the subjective and broad nature of the bill as well as economic impacts that would result from its passage including depression of jobs and slower-paced housing development.¹⁴ These concerns center on CEQA’s ability to halt or stall development until adequate environmental review has occurred. However, a 2018 Association of Environmental Professionals survey revealed that high development costs and low site availability were more prominent barriers to housing development than CEQA.¹⁵ Additionally, a 2017 UC Berkeley study noted that local planning and decision-making processes were also more likely to slow housing development than CEQA.¹⁶ The backgrounds and experiences of stakeholders drive varying views on whether CEQA should incorporate environmental justice, and whether that action would negatively impact much-needed jobs and housing. Regardless, without a system of accountability, the continued development of our natural and built environment will leave DACs bearing the brunt of pollution, hazards, and adverse health impacts.
It is also possible that arguments against incorporation of environmental justice in CEQA may point to the 2016 Preserve Poway v. City of Poway California Supreme Court case. Here, the city of Poway approved a landowner’s proposal to replace a horse farm with housing, and a citizens’ group challenged this decision via lawsuit.¹⁷ This citizens’ group argued that the conversion of the property would degrade community character and cause psychological and social harms. Ultimately, the court ruled in favor of the city, solidifying that CEQA does not cover psychological or social impacts during environmental review. Demonstrated by the many regulations, plans, and programs aiming to protect DACs from disproportionate environmental harms, these impacts go beyond a psychological or emotional effect. Pollution and proximity to hazardous materials present clear and dangerous threats to the health and wellness of low-income and minority populations. For example, exposure to toxic air contaminants and nitrate contamination leaves California communities of color at a higher risk of developing several types of cancer.¹⁸ While there is likely an emotional or psychological impact of experiencing these threats, the widespread health impacts on humans and their surrounding environments are also present. Thus, environmental justice is certainly within the jurisdiction of CEQA environmental review.
Looking forward
To incorporate environmental justice into CEQA Appendix G questions, there is a need for increased buy-in, resources dedicated to this cause, and a willingness to standardize environmental justice legislation in the state. First, stakeholders must stop targeting changes to CEQA as the sole reason for slow housing development. Here, more transparency about the actual barriers to development, like local planning and site costs, is key. As noted above, the incorporation of environmental justice into CEQA will require resources to develop thresholds of significance relating to DACs. These resources might include funding and personnel necessary to set up a task force dedicated to developing these thresholds. Lastly, there is a need for momentum behind standardizing how we approach environmental justice statewide. As environmental justice policies gain support and continue to evolve on the local and regional levels, CEQA should not leave DACs behind in the critical process of environmental review.
¹ Department of Water Resources. “Environmental Justice, Delta Conveyance Project Draft EIR,” December 16, 2022. https://cadwr.app.box.com/s/3z9e87ibrzmpptdeo1qusp1qx3prkirm.
² Ibid.
³ US EPA, OEJECR. “Environmental Justice and National Environmental Policy Act.” Other Policies and Guidance, March 19, 2015. https://www.epa.gov/environmentaljustice/environmental-justice-and-national-environmental-policy-act.
⁴ Witteborg, Jeff. “About CalEnviroScreen.” OEHHA, March 20, 2019. https://oehha.ca.gov/calenviroscreen/about-calenviroscreen.
⁵ Garcia, Claudia et al., “Environmental Justice in the California Environmental Quality Act.” Ascent Environmental Inc., September 2, 2020.http://ascentenvironmental.com/files/2915/9908/4232/AscentShare_Environmental_Justice_Paper.pdf.
⁶ State of California — Department of Justice — Office of the Attorney General. “SB 1000 — Environmental Justice in Local Land Use Planning,” August 30, 2019. https://oag.ca.gov/environment/sb1000.
⁷ Cushing, Lara et al., “Racial/Ethnic Disparities in Cumulative Environmental Health Impacts in California” American Journal of Public Health 105, no. 11 (November 1, 2015): 2341–48. https://doi.org/10.2105/AJPH.2015.302643.
⁸ Reichmuth, David. “Inequitable Exposure to Air Pollution from Vehicles in California (2019) | Union of Concerned Scientists,” 2019. https://www.ucsusa.org/resources/inequitable-exposure-air-pollution-vehicles-california-2019.
⁹ Ibid.
¹⁰ Balazs, Carolina et al., “Social Disparities in Nitrate-Contaminated Drinking Water in California’s San Joaquin Valley.” Environmental Health Perspectives 119, no. 9 (September 2011): 1272–78. https://doi.org/10.1289/ehp.1002878.
¹¹ “Sensitive Receptor Assessment | California Air Resources Board.” Accessed March 10, 2023. https://ww2.arb.ca.gov/capp-resource-center/community-assessment/sensitive-receptor-assessment.
¹² Office of Planning and Research. “General Plan Guidelines Chapter 4: Environmental Justice Element,” June 2020. https://opr.ca.gov/planning/general-plan/guidelines.html.
¹³ Garcia, Cristina. “CA — AB1001.” BillTrack50. Accessed March 11, 2023. https://www.billtrack50.com/billdetail/1321343.
¹⁴ Regele, Adam. “CalChamber Tags AB 1001 as a Job Killer.” Advocacy — California Chamber of Commerce (blog), January 25, 2022. https://advocacy.calchamber.com/2022/01/25/calchamber-tags-ab-1001-as-a-job-killer/.
¹⁵ Eng, Tiffany. “CEQA & Housing Fact Sheet.” California Environmental Justice Alliance, n.d. https://calgreenzones.org/ceqa-and-housing-development/.
¹⁶ Ibid.
¹⁷ Coon, Arthur F. “Horse Of A Different Color” CEQA Developments, March 11, 2016. https://www.ceqadevelopments.com/2016/03/11
¹⁸ Cushing, Lara et al., “Racial/Ethnic Disparities in Cumulative Environmental Health Impacts in California” American Journal of Public Health 105, no. 11 (November 1, 2015): 2341–48. https://doi.org/10.2105/AJPH.2015.302643.
This was written for ESP 179 Environmental Impact Assessment at UC Davis.
