Does CEQA Protect the Most Vulnerable?

Does CEQA Protect the Most Vulnerable? image
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There is a common misconception that the environmental movement is entirely nature-centered, which ignores a tragic reality of the environmental crisis: environmental harm is human harm, and environmental harm affects some people more than others. This is the premise for the Environmental Justice movement.

Some academics, governments, and environmental stewards tend to treat Environmental Justice as a side note to the “mainenvironmental movement, rather than as a central tenet. The California Environmental Quality Act (CEQA) ensures that all development plans undergo a specific process of environmental review to determine potential environmental harms before officials vote to approve or disapprove of the project. While the law is understood as an environmental success story, it is flawed in its treatment of environmental justice.

What is environmental justice?

The Environmental Protection Agency (EPA) defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Other definitions of environmental justice are outcome-based, naming environmental justice as the equal distribution of environmental goods (like parks and fresh food) and harms (like air pollution or noise). Principals of environmental justice say that if we are going to operate under a political system in which financial incentives are central, the government must ensure that no person will experience more environmental harm as a result of their economic status or racial background. Most environmental justice scholars argue that financial incentives cannot be central to a political system that will produce meaningful solutions to environmental injustices. Examples of environmental injustice include:

How does CEQA come into play?

CEQA has the potential to bolster the environmental justice movement, although it has a long way to go. While lawmakers have strengthened CEQA’s environmental justice tenets since its origin, environmental justice is still sidelined in CEQA’s latest iteration. In 2012, then Attorney General Kamala Harris issued a notice clarifying the role of environmental justice in CEQA, reminding local agencies that the role of CEQA is to protect all California residents from environmental harm. The notice did not advance environmental justice policy so much as frame existing policy in a new light, but it did create a larger discourse around CEQA and environmental justice. The language in these environmental justice laws has bearing only when discrimination against a marginalized group can be proven intentional. However, intentional discrimination is a complicated criterion, as implicit biases affect decision-making in immeasurable ways. Intentional or not, marginalized groups bear a disproportionate burden of environmental harm, and intentionality does not alter the severity of the impact.

How has environmental justice legislation changed in recent years?

In 2016, Governor Jerry Brown signed SB 1000, requiring that elements of environmental justice be adopted into every California city’s General Plan as part of the normal update cycle. SB 1000 could protect vulnerable communities from unjust developments in cities with robust environmental justice plans. While Environmental Impact Reports (EIRs) do not currently analyze environmental justice impacts, EIRs may point out when a development is not in line with certain policies and programs in the Environmental Justice Element of a city’s General Plan. Furthermore, the language in SB 1000 treats environmental justice as outcome-based, supporting equal distribution of environmental goods and harms, rather than requiring proof of intentional discrimination. Because SB 1000 allows each city to consider how environmental justice should be evaluated and addressed, the effectiveness of SB 1000 will likely vary across cities.

Despite these successes, environmental justice is still not an official concept under CEQA.

Finally, under AB 52 and SB 18, CEQA requires that projects and General Plans, respectively, undergo a tribal cultural resources review, where cities must consult with tribes and make a “reasonable effort” to come to a mutual agreement when handling project sites and planning areas that may contain tribal cultural resources. These pieces of legislation are first steps in addressing environmental justice in terms of indigenous sovereignty.

Despite these successes, environmental justice is still not an official concept under CEQA. Some CEQA processes can even be harmful in regard to environmental justice. A local government body, for example, can still approve a project that illustrates significantly harmful impacts by adopting a Statement of Overriding Considerations. A community can take legal action in response, but some communities may not have the time, resources, or language skills to engage in a lawsuit. Therefore, this loophole can be more easily utilized in communities under economic distress. That is not to minimize the capabilities of marginalized peoples, as their resistance has produced better food access, stopped the construction of many toxic facilities, and pushed for all the existing environmental justice legislation we see today. However, wealthier and well-connected neighborhoods have historically had greater success in halting projects that are considered undesirable.

Should this be a community’s predicament in California, the 5th richest economy in the world?

Those who support developments (e.g. decision makers, applicants, local residents) that just so happen to harm the health of poor communities and communities of color may argue that they will stimulate the economy with job opportunities. For example, despite its known health impacts on its surrounding community, the Chevron refinery in Richmond California provides more than 3,000 jobs. However, this argument normalizes a plight in which people living within disadvantaged communities must choose between financial security and good health. Should this be a community’s predicament in California, the 5th richest economy in the world?

In addition, developers may say that harmful projects must go somewhere, and that financials, logistics, or political feasibility drive the decisions to locate unsafe or toxic projects near communities where the property is cheaper and public opposition is less likely. This logic is sound in terms of the EPA’s current definition of environmental justice because the discrimination is not intentional. However, when we treat environmental justice as outcome based, this logic does not stand as poorer communities may be disproportionately affected.

Where are there opportunities for growth?

CEQA states that the process of environmental review can only analyze impacts to the physical environment. At the time of CEQA’s inception, this limitation was important as part of carving out a robust space for environmental regulation, where previously there had been very little. However, if the state of California is turning to a holistic view of environmental policy that treats social justice and environmentalism as inextricably interlinked, this limitation may be outdated. California could consider utilizing the successes of CEQA to address equity and environmental justice factors in processes of environmental review. The state could also restrict the use of the Statement of Overriding Considerations in ways that protect vulnerable communities.

If the state of California intends to center environmental justice in its environmental policy, CEQA reform is a great next step. However, truly meaningful reform will be accompanied by a more equitable distribution of resources overall.

The views and opinions expressed in this article are solely those of the original author. These views and opinions do not necessarily represent those of FCS, and/or any/all contributors to this site. The author would like to acknowledge her white privilege and her class privileges. The author would like to clarify that the opinions expressed in this article come from research, rather than firsthand experience.

 

FirstCarbon Solutions [FCS]  has more than 30 years of experience navigating the complexities of CEQA and securing project approvals. Contact us for a free consultation to learn more about how we can help with your specific requirements. 

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About the author

Madelyn Dolan

Madelyn Dolan thumbnail

Maddie Dolan returned to FirstCarbon Solutions (FCS) as an Environmental Services Analyst in October 2020 after interning for the company in 2019. In May 2020, she graduated from the University of California, Berkeley with degrees in Environmental Economics & Policy and Society & Environment. She held positions as UC Berkeley Panhellenic Vice President of Sustainability and Co-President of “Greening the Greeks.” Before working at FirstCarbon Solutions, she interned for Bay Area Green Tours in Oakland and for Global Green Economic Forum in Singapore. Maddie is passionate about Environmental Justice as it relates to public policy and social movements.

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