Washington Adopts Two Ambitious Environmental Justice Laws

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Troutman Pepper

[ao-author: Emily Guillaume]

Last week, Washington became the latest state to address environmental justice (EJ) through legislation by adopting the Healthy Environment for All (HEAL) Act and the Climate Commitment Act into law. The HEAL Act, which is the more comprehensive of the two passed laws, was based on recommendations of a state-funded environmental task force issued in fall of 2020 and seeks to remedy the effects of past disparate treatment of vulnerable communities. The Climate Commitment Act is a more targeted law that establishes a greenhouse gas (GHG) emissions cap-and-invest program with the goal of reducing GHG and criteria pollutants in overburdened communities highly impacted by air pollution. Although the laws become effective on July 25, their major EJ-related requirements take effect at later dates.

The HEAL Act

The HEAL Act (Act) focuses on actual improvements, imposing outcome-focused requirements. For example, the Act defines “environmental justice” broadly, going beyond the traditional “fair treatment and meaningful involvement” components to include “addressing disproportionate environmental and health impacts in all laws, rules, and policies with environmental impacts by prioritizing vulnerable populations and overburdened communities, the equitable distribution of resources and benefits, and eliminating harm.” The HEAL Act also includes definitions for “cumulative environmental health impact,” “environmental benefit,” “environmental harm,” “overburdened community,” “vulnerable populations,” “environmental impacts,” and others. Environmental impacts are defined to include both “environmental benefits or environmental harms, or the combination of environmental benefits and harms, resulting or expected to result from a proposed action.”

The HEAL Act directs covered state agencies, including the Departments of Ecology, Health, Natural Resources, Commerce, Agriculture, and Transportation, to develop and incorporate an environmental justice implementation plan into strategic plans by January 1, 2023. Environmental justice should also be considered during budgeting decisions of covered agencies. Other state agencies may also opt in to the requirements of the Act.

Additionally, by July 1, 2022, each covered agency must develop and adopt a community engagement plan. This plan should specify (1) how an agency will engage with overburdened communities and vulnerable populations as it evaluates new and existing activities and programs; and (2) how it plans to facilitate equitable participation and support meaningful and direct involvement of vulnerable populations and overburdened communities. The Act specifies categories the community engagement plans should cover, including best management practices and methods for outreach and communication and use of special screening tools and maps to evaluate the needs of the communities. While the Act does not specifically reference the permitting process, it is likely that these community engagement plans will be used in that context as well.

Perhaps most noteworthy is the environmental justice assessment requirement. Under the HEAL Act, when considering a significant agency action initiated after July 1, 2023, a covered agency must conduct an environmental justice assessment “to inform and support the agency’s consideration of overburdened communities and vulnerable populations” and “to assist the agency with the equitable distribution of environmental benefits, the reduction of environmental harms, and the identification and reduction of environmental and health disparities.” The HEAL Act defines a “significant agency action” to include significant legislative rules, new grant or loan programs, and large capital and transportation projects, including related grants or loans. Covered agencies may also designate other actions that “may cause environmental harm or may affect the equitable distribution of environmental benefits to an overburdened community or a vulnerable population” as significant. To this end, by July 1, 2023, each agency should publish a list of action categories it determines to be significant, and there will be an opportunity for public comment on this list.

As to the content of environmental justice assessments, they can take a form of checklists similar to the Department of Ecology’s existing checklist developed under the State Environmental Policy Act (SEPA), but will have to include other EJ categories:

  • identification of overburdened communities and vulnerable populations expected to be affected by the proposed action and the potential environmental and health impacts;
  • identification of cumulative environmental health impacts of a proposed action on overburdened communities, vulnerable populations, and tribes;
  • community input summary;
  • description of options for the agency to reduce, mitigate, or eliminate identified probable impacts on overburdened communities and vulnerable populations, or a justification for not reducing, mitigating, or eliminating identified probable impacts.

However, the HEAL Act makes clear that these environmental justice assessments should not require “novel quantitative or economic analysis” and should not be duplicative of the state’s other environmental laws that require similar analyses.

To aid covered agencies in conducting cumulative environmental health impact analysis and identifying overburdened communities, the HEAL Act directs them to use the existing environmental health disparities map developed by the University of Washington Department of Environmental & Occupational Health Sciences and the Washington State Department of Health. The HEAL Act codifies this map as an important resource for environmental justice analysis, which the Department of Health must continue developing and update periodically.

Finally, the HEAL Act establishes a 14-member Environmental Justice Council to advise covered agencies regarding incorporating environmental justice into agency activities. The council will include one representative of a business regulated by a covered agency and whose business is significantly affected by the actions of a covered agency. The rest of the members largely are community and tribal representatives, environmental justice practitioners, or academics. The council’s advisory duties are numerous, including to provide recommendations to covered agencies on the identification of additional significant agency actions requiring an environmental justice assessment.

The Climate Commitment Act

The Climate Commitment Act incorporates many of the same definitions. It also expands on the community engagement plan obligation outlined in the HEAL Act to require the Department of Ecology to include a component describing how overburdened communities will be engaged on climate-related issues. The plan must include identifying emitters, monitoring and evaluating criteria pollutants, and determining methods of outreach and communication.

With respect to the environmental justice assessment, the Climate Commitment Act includes a similar provision requiring the Department of Ecology to: (1) identify overburdened communities; (2) construct an air monitoring network in overburdened communities; and (3) identify sources that account for the greatest levels of criteria pollutants and create a high priority list of significant emitters. In addition, starting in 2023 and every two years thereafter, the Department of Ecology must determine the levels of GHG and criteria pollutants in overburdened communities, including any related health impacts. The Department of Ecology will then use this data to: (1) establish air quality targets that are consistent with either the NAAQS or the air quality in non-overburdened neighboring communities, whichever is more protective of human health; (2) identify stationary and mobile sources that are the greatest pollutant contributors that are increasing or decreasing; (3) adopt emission control strategies to meet emission targets; (4) adopt stricter emission standards or alternate mitigation actions; and (5) issue enforceable orders to comply with the stricter emission standards.

The Climate Commitment Act tasks the Environmental Justice Council created by the HEAL Act with developing recommendations for environmental justice and environmental health goals for the cap-and-invest program.

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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