SB5141 – Implements the recommendations of the environmental justice task force.
Prime Sponsor – Senator Saldaña (D; 37th District; Seattle) (Co-sponsor Lovelett – D)
Current status –
In the Senate – Passed
Had a hearing on a proposed substitute in the Senate Committee on Environment, Energy and Technology January 20th; passed out of committee with a minor technical amendment February 9th. Referred to Ways and Means, and had a hearing there February 17th. Amended and passed out of committee February 19th. Referred to Rules. Amended on the floor and passed by the Senate March 1st. Senate concurred in the House’s changes April 20th.
In the House – Passed
Referred to the Committee on Environment and Energy. Had a hearing March 12th, and a second hearing in the committee March 16th. Replaced by a striker and passed out of committee March 25th. Referred to Appropriations; had a hearing March 30th; replaced by a new striker, amended and passed out of committee March 31st. Referred to Rules April 2nd. Replaced by a striker on the floor, further amended, and passed the House April 11th.
Next step would be – To the Governor.
Legislative tracking page for the bill.
Summary –
House Floor Amendments –
The adjustments made by the striker on the House floor are summarized by staff in a couple of pages at the end of it. One of the other floor amendments said environmental justice assessments could be done by completing a checklist like the ones allowed in SEPA evaluations, including the criteria specified in the bill; specified that assessments are not required to be comprehensive or exhaustive examinations of potential impacts of a significant action, and do not require novel quantitative or economic analysis; and required agencies to use cumulative environmental health impact analysis as part of environmental justice assessments only where applicable. Others prohibited agencies from contracting with entities that employ registered lobbyists for purposes of implementing environmental justice responsibilities; required agencies to identify overburdened communities in a way that allows measuring “the performance effectiveness” of their environmental justice obligations; clarified that the expected impacts on tribal rights and resources of actions undergoing an assessment are to be identified through the consultation process required for significant agency actions, and eliminated the requirement that covered consultations had to be done in accordance with the existing statute that addresses tribal consultation.
Amendments in House Appropriations –
Fitzgibbon’s second striker adds a few small changes to the previous one, according to the slightly different summary at the end of it. The amendments to it required a technical review of the health disparities map, added a couple of members to the environmental justice council, required agencies to aspire to complete environmental justice assessments within fifteen business days and to report on their record of doing that, and made a few other minor changes.
Striker in House Committee –
The staff summary of the adjustments made by the striker is two and a half pages at the end of it.
Amendments on the Senate Floor –
These required transportation spending decisions made within the framework of the environmental justice implementation plan to be restricted to appropriations in the transportation bill and limited to discretionary spending; specified that agency actions are to be “in consideration of” the Council’s guidelines rather than being consistent with them or following them, and that the Council’s identification and prioritization of actions for agency assessments, and its timelines for actions, funding and expenditures are suggestions. They added a report by the Council to the Governor and the Legislature, removed tribal and indigenous populations from the definition of vulnerable populations; and finally specified that the role of the Council is to be purely advisory and that its decisions are not binding on any agency, individual, or organization.
Amendments in Ways and Means –
The major amendment made a lot of changes specifying and clarifying administrative procedures; they’re summarized by staff at the beginning of it. (The other amendment just made the Governor’s appointments to the Council subject to confirmation by the Senate.)
Substitute –
The substitute narrows the sweeping definition of “cumulative impacts” to “cumulative environmental health impacts” and makes a number of other adjustments that focus more narrowly on impacts on health, but since it retains the definitions of “overburdened communities” and now consistently includes “vulnerable communities” alongside that, I think it still requires addressing burdens due to a variety of adverse socioeconomic factors as well as the problems caused by the physical environment. It now specifies that an “equitable distribution” of benefits and burdens means “a fair and just, but not necessarily equal, allocation” of them, and is to be based on current conditions.
It no longer makes the creation of the Environmental Justice Council subject to funding, increases its size from ten to fifteen, adds specifications about its membership, and increases its authority. It’s now to adopt additional agency guidelines for community engagement plans, maintaining the reporting dashboard, and designating overburdened communities. It expands the Council’s technical assistance to agencies to include environmental justice obligations for budgeting and financing criteria and decisions, environmental justice assessments and community engagement plans. It specifies a number of things included the definition of “significant agency actions” requiring environmental justice assessments. The Council’s now to review all agency environmental justice assessments, implementation plans, budgeting and funding criteria, and community engagement plans. (The bill doesn’t seem to say it has to approve them, though it does say it’s an agency’s duty to carry out the bill’s requirements after the Council reviews its criteria for these.) It now says agencies must comply with the Council’s guidelines for environmental justice implementation plans instead of saying they must give substantial weight to them.
It now calls the “omsbuds” the “environmental justice advocate”, and drops the list specifying the items and actions that person is authorized to investigate.
The substitute also requires agencies to conduct regular compliance reviews of existing laws and policies guiding community engagement, and makes a lot of minor changes in language and details.
Original bill –
The bill says all state agencies should “strive” to act in accordance with its environmental justice policies, and requires the Departments of Health, Ecology, Agriculture, Natural Resources, Commerce and Transportation, as well as the Puget Sound Partnership, to “apply and comply” with its provisions.
It establishes a ten person Environmental Justice Council appointed by the governor and staffed by the Department of Health to represent the interests of community-based organizations. The Council’s to adopt guidelines on implementing the act’s requirements for agencies preparing environmental justice implementation plans, developing budgeting and funding criteria and making budgeting decisions, and preparing and using environmental justice analyses. It’s also to provide technical assistance to support agencies’ compliance with those analyses and enterprise equity implementation; do an annual evaluation of those aspects of their performance, provide appropriate information to various parties about agency compliance with the requirements; review existing environmental laws and make recommendations for additional legislation to further the state’s environmental justice goals, including legislation to be created and requested by particular agencies; hold hearings and conducting proceedings to receive information to assist in performance of their duties; and prepare and submit an annual report to the Governor and Legislature on the work of the Council, progress in meeting the state’s environmental justice goals, and implementing this act.
Environmental justice analyses –
The Department of Health is to continue developing an environmental heath disparities map, in consultation with the Council. It’s to use the most currently available information to identify cumulative impacts and overburdened communities, and include tools to visually display environmental disparities over time, tracking agency progress in an interactive, regularly updated dashboard; as well as measuring the link between environmental quality and human health, disaggregated by race. (The department’s to request public comment, and encourage participation in the process by representatives from community organizations representing overburdened communities through engagement and listening sessions in all regions of the state. It may request assistance from academic researchers and other state agencies, and must include a summary of revisions to the map as part of its annual report to the Council on its progress toward meeting the act’s goals.)
The bill requires agencies considering a significant action to do an environmental justice analysis of cumulative impacts, using resources such as the environmental health disparities map, as well as qualitative assessments of environmental and socioeconomic stressors that may contribute to environmental health disparities. It’s to identify overburdened communities and vulnerable populations that may be affected by the proposed action, and how the impacts may be distributed across those. (The act defines “overburdened communities” as those designated by the Environmental Justice Council that the act establishes, with the assistance of the Department of Health. These include rural communities, communities in census tracts that are fully or partially on tribal lands, and areas with a high concentration of members of a “vulnerable population”, ones that experience a disproportionate cumulative risk from environmental burdens due to adverse socioeconomic factors, including unemployment, high housing and transportation costs relative to income, access to food and health care, and linguistic isolation; and sensitivity factors, such as low birth weight and higher rates of hospitalization.) It’s also to identify any local and regional impacts to tribal treaty rights and resources; summarize community input and describe how overburdened communities and affected tribes may be further involved in development of the proposed action; and describe options for the agency to reduce the disproportionate impact on overburdened communities, or a reasonable justification for not doing so. (The bill says an agency must consider, without limitation, each of the following methods for reducing an impact:
1. Eliminating disparities and the unequal effect of environmental harms on overburdened communities;
2. Reducing or ensuring the action does not add to the cumulative impact;
3. Providing equitable participation and meaningful engagement of overburdened communities in the development of the action;
4. Prioritizing equitable distribution of resources and benefits to overburdened communities,
5. Ensuring positive workforce and job outcomes for them;
6. Meeting a community need identified by an overburdened community;
7. Modifying substantive regulatory or policy requirements; and
8. Any other mitigation techniques, including those suggested by the Council, the office of equity, or representatives of overburdened communities and vulnerable populations.
(If an agency determines it can’t reduce the impact of the action on overburdened communities and vulnerable populations, it must provide a clear explanation of that determination as part of the record of the decision, and provide notice of it to members of the public who participated in the process.)
Budgets and funding –
In making decisions about budget development, investments, granting or withholding benefits, and distributing funding, agencies must:
1. Direct benefits to vulnerable populations and overburdened communities to reduce statewide disparities. (They are to establish a goal “of 40 percent and no less than 35 percent of investments that create environmental benefits directed to” them.)
2. Make investments to eliminate health disparities proportional to those a community experiences;
3.Focus investments on creating environmental benefits, including eliminating health burdens, creating community and population resilience, and raising the quality of life;
4. Ensure investment priorities are self-determined by overburdened communities and vulnerable populations in them through equitable participation;
5. Balance investments across the state and within counties, local jurisdictions, and unincorporated areas to reduce disparities by location and contribute to reducing disparities based on race and ethnicity;
6. Promote transparency by clearly articulating goals and assessment metrics to communicate where, why, and how funds distributed; and,
7. Consider a broad scope of grants so that funds may be applied to a variety of purposes, including community grants to monitor pollution and grants focused on building capacity and training for community scientists and staff; technical assistance for communities new to receiving grants; and education and work-readiness youth programs focused on infrastructure or utility-related internships to develop career paths for youth and eventual community leaders.
Environmental justice implementation plans –
By September 1, 2022, each agency must prepare an environmental justice implementation plan, giving “substantial weight” to the Council’s guidelines. It’s to be updated annually and must include:
1. Goals and deliverables to reduce environmental health disparities and achieve environmental justice in the agency’s programs;
2. Metrics to track and measure accomplishments of those;
3. Methods to equitably solicit and receive information and opinions from members of the public across the state;
4. Strategies to ensure compliance with existing federal and state laws and policies; and
5. A plan for community engagement that evaluates services and programs for equitable participation and the support of meaningful and direct involvement of vulnerable populations and overburdened communities. The plan must include best practices for outreach and communication to overcome barriers to engagement from vulnerable populations, overburdened communities, and other historically or currently marginalized groups; tools that integrate spatial, demographic, and health disparities data to evaluate and understand the nature and needs of the people who may be impacted by agency decisions; processes to include members of the affected communities including providing child care and other expenses; and methods for outreach and communication with those who face language or other barriers to participation.
The Omsbuds –
If funding’s provided, the bill creates an Office of Environmental Justice Ombuds within the Office of the Governor to provide information to overburdened communities and the council; promote public awareness and understanding of environmental justice for overburdened communities; identify system issues and responses for the Governor and the Legislature to act on; and ensure agency compliance with the provisions of this act. After consultation with the Council, appropriate committees, representatives of overburdened communities, and other relevant stakeholders, the Governor is to appoint an ombuds who’s a person of recognized judgment, independence, objectivity, and integrity, and is qualified by training or experience in environmental justice. The ombuds holds office for three years, and may only be removed, by the Governor, for neglect of duty, misconduct, or the inability to perform duties. Administrative and staff support is to be provided by the Governor’s office. The Council is hold a portion of its meetings to jointly receive stakeholder input on the ombuds’ activities and priorities.
The omsbud is to maintain a number of avenues of communication for receiving complaints and inquiries; monitor agency compliance with the requirements of the act; establish a statewide uniform reporting system to collect and analyze data related to complaints about agencies, and establish procedures to receive, investigate, and resolve them; establish procedures to gather stakeholder input into the ombuds’ activities and priorities, and submit an annual report to the Governor, the Legislature, and the Council including the ombuds’ budget and expenditures, agencies’ compliance with the act; the number of complaints received and resolved; a description of significant systemic or individual investigations or outcomes achieved during the prior year; outstanding or unresolved concerns or recommendations; and comments from stakeholders, including representatives of overburdened communities, on activities during the prior year.
The ombuds may initiate and attempt to resolve an investigation upon the ombuds’ own initiative, or upon receipt of a complaint regarding significant legislative rules; agency budgets, investments, or funding distribution; resource allocation; programmatic or project actions; policies, rules, or procedures; or proposed legislation that may create environmental harms or benefits for overburdened communities. If the ombud believes that an agency should reconsider, explain, or change something, the omsbuds is to have access to records and reasonable access to agency facilities to conduct a full investigation, including the opportunity to interview employees who might reasonably be believed to have knowledge of what’s being investigated. The ombuds may not levy any fees, must remain neutral and impartial, and must render a public decision on the merits of each complaint at the conclusion of an investigation, stating the ombuds’ recommendations and reasoning. If the ombuds concludes there’s significant noncompliance with the act’s requirements, that must be reported to the Governor, the Council, and appropriate committees of the Legislature. (The ombuds must consult with a person or agency before announcing a conclusion or recommendation that criticizes them expressly, or by implication.) Agency employees’ interactions with the omsbud are covered by the whistleblower law.