Climate change law codifies environmental justice

Pollution affects some communities more than others

MASSACHUSETTS RECENTLY took a significant step towards addressing the problem of climate change, passing An Act Creating a Next Generation Roadmap for Massachusetts Climate Policy. In addition to important provisions aimed at reducing greenhouse gas emissions and building a greener economy, the act codifies—for the first time in Massachusetts—the principles of environmental justice into statute, with a specific focus on including marginalized communities in the review process for projects likely to cause environmental harm.

Environmental justice is the principle that all people should be able to enjoy a clean and healthy environment, and to participate in decisions that affect their ability to do so—regardless of race, color, income, disability, gender identity, sexual orientation, national origin, and English language proficiency. The environmental justice movement traces its rootsback to the 1980s when black residents of Warren County, North Carolina, organized against the state’s efforts to dump thousands of truckloads of soil laced with toxic chemicals into their communities.

Championed by communities of color, the movement has grown over time and has even received state recognition. In Massachusetts, the movement achieved a significant milestone when, in 2014, former governor Deval Patrick issued an Executive Order on Environmental Justice. Now, with the enactment of the new climate legislation, environmental justice principles will enjoy the force and effect of law.

While climate change and environmental pollution affect everyone, they affect some communities more than others. Low-income communities of color are more likely to live close to multiple sources of pollution, including power plants, incinerators, landfills, and highways, and less likely to have access to green spaces and clean water. For example, many residents of Chelsea and East Boston live right next to the banks of Chelsea Creek—home to open lots with storage depots for Logan’s jet fuel supply, as well as  heating fuel and road salt supplies for many cities and towns.

The COVID-19 pandemic has confirmed once again that pollution and environmental hazards disparately impact marginalized communities. This issue has been well documented in a report issued last summer by Attorney General Maura Healey’s office. As noted in the report, air quality is a key indicator of COVID-19 vulnerability. Unfortunately, highways, industrial facilities, and the resulting air pollution are heavily concentrated around low-income communities of color. Residents of Boston’s Chinatown live close to I-93 and are highly exposed to air pollution, causing them to suffer from higher rates of asthma. Residents of East Boston, exposed to pollution from the operations of Logan Airport, similarly exhibit high rates of childhood asthma. As the attorney general’s report notes, marginalized communities have been hit the hardest by the pandemic, in part because of this environmental injustice.

In that regard, the new law offers hope. The climate legislation has several important environmental justice provisions. Most significantly, it mandates environmental impact reports for projects likely to harm marginalized communities and requires improved measures for public participation by those affected.

Environmental impact reports (EIRs) will now be required for all projects likely to cause environmental damage if the project is located within one mile of an environmental justice population)—five miles if the project impacts air quality. An environmental justice population is defined based on factors such as annual median household income, minority population, and English language proficiency. For example, neighborhoods where minorities comprise 40 percent or more of the population will qualify. Thus, projects like Eversource’s installation of an electrical substation and transmission lines across minority neighborhoods in Chelsea and East Boston will likely be covered and therefore require an EIR.

The EIR requirement is significant. As part of the EIR process, the proponent of a project has to disclose negative potential environmental impacts and project alternatives. The proponent will also have to submit an assessment of measures and management techniques to limit negative environmental impacts. Moreover, the report will be subject to public comment. The public disclosure and scrutiny invited by this process will encourage private developers as well as state and municipal agencies to act more responsibly and reduce environmental impact on projects near environmental justice population neighborhoods.

The law further requires the secretary of energy and environmental affairs to take additional measures to improve public participation by affected environmental justice populations. In doing so, it offers much hope for communities with limited English proficiency that have had to fight for language access on a case-by-case basis. For decades, communities in East Boston and Chelsea have borne the brunt of environmental pollution and climate change hazards. Yet these same communities are systematically excluded from the review and approval processes around large construction and infrastructure projects. State and municipal agencies overseeing such projects have excluded residents by failing to ensure meaningful language access to the cities’ diverse residents.

The disparities in language access have forced community groups in East Boston and Chelsea to assert their rights through language access complaints and lawsuits. For example, community groups filed a civil rights complaint last year with the US Environmental Protection Agency against the Massachusetts Energy Facilities Siting Board and its parent agencies. The complaint challenges the state agencies’ failure to provide proper translation and interpretation services at proceedings related to the above-noted proposed electrical project that poses significant dangers to the communities.

Meet the Author

Ivan Espinoza-Madrigal

Executive director, Lawyers for Civil Rights Boston
Meet the Author

Lauren Sampson

Race & climate justice project attorney, Lawyers for Civil Rights
Meet the Author

Srish Khakurel

Legal fellow, Lawyers for Civil Rights
Going forward, communities will be better positioned to have language access on projects like these. The climate law specifically requires improved measures for public participation by affected environmental justice populations. Suggested measures include making documents related to a proposed project—public notices, environmental impact reports, and the like—publicly available, including in languages spoken by a significant number among an affected environmental justice population, and offering translation services at related public meetings.

The law provides some discretion in the exact measures to be adopted. It will be up to the secretary of energy and environmental affairs to ensure that measures are implemented as forcefully as intended by the Legislature. For these reasons, the legislation represents a significant victory for those who have been advocating for environmental justice and language access.

Iván Espinoza-Madrigal is executive director, Lauren Sampson is race and climate justice project attorney, and Srish Khakurel is legal fellow at Lawyers for Civil Rights Boston.