A person’s health should not be determined by their income, race or ethnic background nor by the neighborhood in which they live, according to basic principles of environmental justice. Yet studies have shown that these demographic groups tend to suffer from a disproportionate share of environmental problems — from toxic waste to air pollution to water quality.

The HEAL Act, approved and ready to be signed by Washington Gov. Jay Inslee, is designed to address the problem in some ways. The legislation, Senate Bill 5141, requires state agencies to look for and try to reduce such disparities in normal agency operations, regulations and practices.

“Every Washingtonian deserves the same protections for living in a healthy environment,” said Laura Watson, director of the Washington Department of Ecology. “Everyone deserves to breathe clean air, to drink clean water and to live on unpolluted lands. That is our fundamental obligation to every one of the 7.5 million Washingtonians that call this beautiful place home in every community, regardless of their Zip code.”

Watson, testifying in favor of the legislation before the House Committee on Environment and Energy, went on to say that the COVID-19 pandemic “amplified what we already knew … that health inequities and environmental disparities permeate our current structures. People of color and low-income populations are disproportionately exposed to pollution in their homes, their schools, their jobs and their communities. That’s wrong and it shouldn’t continue.”

HEAL stands for Healthy Environment for All. The soon-to-become law calls for state agencies to account for environmental justice within their strategic plans and when taking “significant agency actions.” Such actions include proposing changes to laws or regulations, developing new grant programs or initiating major construction projects.

Efforts to correct inequities are to be guided by studies and information — including the statewide Environmental Health Disparities Map, which compiles demographic, environmental and health data by census tract across the state.

A new Environmental Justice Council, appointed by the governor, will oversee compliance with the law, but council recommendations will be strictly advisory. The original bill, introduced this year by Sen. Rebecca Saldaña, D-Seattle, would have given strong enforcement powers to the council, as recommended by the Environmental Justice Task Force. After more than a year of study, the task force released its recommendations (PDF 3.3 mb), which became the basis of the HEAL Act, which then underwent numerous amendments in the Legislature.

For further coverage of environmental justice in Washington state — including a proposal to update the Model Toxics Control Act — check out the recent entries in the Encyclopedia of Puget Sound.

Legislative battle

The HEAL Act was approved Tuesday, when the full Senate concurred with a House version adopted on April 10. Votes in both the House and Senate reflect a strict party division, with Democrats voting in favor of the bill and Republicans voting against — except for three Democrats who crossed over to join the opposition. In the House, Democrat Mike Chapman of Port Angeles voted with Republicans, joined by Senate Democrats Tim Sheldon of Potlatch and Kevin Van De Wege of Sequim.

Throughout the debate in both the House and Senate, Republicans said the legislation would create an unneeded layer of bureaucracy that would likely delay project approvals, harm the state’s economy and kill prospects for new jobs.

“As I thought about this, I wondered what is this really?” said Sen. Mark Schoesler, R-Ritzville, during the Senate floor debate. “This is an excellent bureaucrat-development project. It’s not a way to help minority communities in my district with jobs — or in yours.”

In the House, Rep. Mary Dye, R-Pomeroy, said past failures in environmental equity are failures within the agencies themselves.

“No one can look at the Health Disparities Map and not feel compelled to pursue justice for these communities,” Dye said. “Community after community from Tacoma to Seattle to Redmond to Bellevue, they are all experiencing extremely unhealthy conditions that are increasing their risk of adverse outcomes.”

But the HEAL Act offers no hope of justice, she said, because there is no accountability for the failures of the past. The environmental laws are strong enough as they are, she argued, but they have been poorly administered and inequitably enforced.

“Senate Bill 5141 does not ask anyone to apologize or take public responsibility for the degraded habitat we have,” she said. “It replaces no one. It merely adds a new government program and new bureaucracy to the already failing ones.”

Democratic support

Democratic legislators argued strongly in favor of the bill, saying that much progress has been made on the environmental front, but some people have benefitted more than others. In particular, many low-income families and people of color still languish in the worst environmental conditions, including worsening air pollution in some areas.

Rep. Sharon Shewmake, D-Bellingham, an environmental economist, said pollution costs the United States hundreds of millions of dollars every year — and it used to be worse. But new cleanup processes, equipment and institutions have created more wealth and better health for all Americans. The problem, she added, is that those benefits have not been shared fairly.

According to Shewmake, the environmental justice movement began in Warren County, N.C., not far from where her uncle lives. It was 1982, and the state of North Carolina was looking for a permanent disposal site for contaminated soils that had been dumped illegally along the roadways.

Shewmake said state officials chose to place the PCB-laden soils on productive farmland in a community of hard-working African Americans “because they thought they wouldn’t fight back.” A major protest ensued and spread to disadvantaged communities across the United States, and yet certain populations continue to bear the brunt of pollution problems.

“It happens to those who are vulnerable, who don’t have access to health care, who live in food deserts where they don’t have access to healthy, nutritious foods,” she said, “which means that these impacts of pollution of water and air on their bodies isn’t mitigated by other things that you and I might have access to. And that’s not right.”

Rep. Kirsten Harris-Talley, D-Seattle, said the inequities in the current system of regulating pollution and in the legacy of toxic sites are better understood today than ever before.

“We’re at a very unique moment in our history…, when we can start to have large comprehensive data about every corner of the state,” she said.

Armed with information about health and environmental conditions, state efforts can be begin to correct the problems, which affect rural communities as much as urban communities, she said.

“I agree with every member here who has said we have not gone as far as we can or should,” she said. “This policy is the start of what I think will be a lot of change to have us meet those goals and go beyond the goals we have set.”

Basic provisions of the law

Under the law, the state departments of Agriculture, Commerce, Ecology, Health, Natural Resources and Transportation along with the Puget Sound Partnership must incorporate strategies to advance environmental justice goals into their strategic plans by Jan. 1, 2023. Other agencies may opt into the program.

Those agencies also must conduct environmental justice assessments for any “significant agency action” taken after July 1, 2023. Such actions include: 1) new regulations, 2) new grant or loan programs, 3) capital projects, grants or loans of more than $12 million, and 4) agency-requested legislation.

Such assessments should be completed without delaying the agency action being addressed. New or novel studies are not required, and the assessment can be simply a checklist of information, conceptually similar to the checklist used for reviews under the State Environmental Policy Act (SEPA).

Based on EJ assessments, agencies must try to reduce harms or increase benefits to “overburdened communities” affected by multiple environmental problems and “vulnerable populations,” defined as groups likely to be at higher risk for poor health outcomes due to socioeconomic factors (such as limited access to nutritious food or health care facilities) or sensitivity factors (such as low-birth weight).

Vulnerable populations may include 1) racial or ethnic minorities, 2) low-income populations, 3) populations disproportionately impacted by environmental harms; and 4) populations of workers experiencing environmental harms.

Each agency covered by the law must integrate EJ processes into their budget planning where feasible with the goal of increasing environmental benefits for overburdened communities and vulnerable populations. Those groups need to be consulted during the process.

Agencies must also develop a consultation process with federally recognized Indian tribes when developing EJ plans and actions that can affect tribal rights and tribal lands.

Each agency must adopt a community engagement plan by July 1, 2022, describing how the agency will share information with overburdened communities — including special efforts to reach those affected by agency decisions.

Agency heads can choose to exempt their agency from EJ assessments and planning when the result would be a delay causing significant harm to health, the environment or public interest. Exemptions could also be given if an action would create a problem involving state revenues or a conflict with federal law.

Environmental Justice Council

The governor is called on to appoint 14 individuals to an Environmental Justice Council, which will advise agencies on how they can incorporate EJ into their activities to advance the goals of environmental justice. Members will include:

• Seven community representatives, including one youth (age 18-25) representative, all of whom have done some kind of work in environmental justice or related fields,
• Two members representing tribes — one from Eastern Washington and one from Western Washington,
• Two representatives considered environmental practitioners or academics who can serve as experts,
• One representative of a business regulated by one of the state agencies covered by the law,
• One representative of a union representing workers in the building and construction trades, and
• One representative at large, based on work dealing with environmental justice.
• Each agency covered by the law will be represented by a non-voting member on the council.

The EJ Council, which must meet before the end of this year, will provide a forum for discussion about environmental justice concerns, make recommendations to state agencies, help identify and prioritize overburdened communities, and evaluate agency progress in a report released to the public every two years.

The council will come under the Washington Department of Health, which will hire a manager and support staff. Health officials also will manage an inter-agency workgroup to provide technical assistance to agencies conducting EJ planning and analysis.

The Department of Health will maintain the Environmental Health Disparities Map with assistance from the agencies, community groups and universities. Updates to the map must be reported as they occur, with a complete evaluation report every three years. The interactive map, which went online in 2018, includes 19 indicators of demographic, environmental and health data for each census tract in the state.

The Department of Health is expected to employ the equivalent of 8.7 staffers to manage the council, workgroup and other obligations under the law, according to a financial report to the Legislature. Other agencies vary in their estimates of staff time needed to carry out their EJ planning and assessments. The budget for carrying out the new law has not been approved by the Legislature.