On May 8, 2012, the California Attorney General’s office released a report entitled “Environmental Justice at the Local and Regional Level – Legal Background” (Report) which interprets existing law to impose environmental justice obligations that local governments must consider when approving specific projects and planning for future development.
“Environmental justice” is defined in the Government Code as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” (Gov. Code, § 65040.12, subd. (e).) The Report defines “fairness” in this context to mean that “the benefits of a healthy environment should be available to everyone, and the burdens of pollution should not be focused on sensitive populations or on communities that already are experiencing its adverse effects.”
The Report first asserts that Government Code section 11135, which prohibits discrimination by any state agency, requires local governments to consider the same issues of “fairness” in the planning context. The Report notes that, if a local government is found to have violated Government Code section 11135 which, according to the Report, may occur if environmental justice issues are not considered, then state funding can be “curtailed” and a civil action may be brought.
The Report then interprets the California Environmental Quality Act (CEQA) and its implementing Guidelines to require lead agencies to consider the public health burdens of a project as they relate to environmental justice for certain communities. While the Report acknowledges that there is no mention of “environmental justice” within CEQA, the Report notes that CEQA’s main purpose is to evaluate whether a project may have a significant effect on the physical environment, and asserts that “human beings are an integral part of the environment.”
The Report provides several examples of specific provisions of CEQA and its Guidelines that the Attorney General asserts require local lead agencies to consider how the environmental and public health burdens of a project might specially affect certain communities. Specifically, the Report cites the requirement that the environmental setting of a project be considered and notes that a project that is ordinarily insignificant in one setting may be significant in another. The Report also cites the requirement that agencies assess the cumulative impacts of a project by examining a project’s effects in connection with the effects of past, current, and probable future projects, along with effects on nearby communities. In addition, the Report cites the provisions of CEQA that recognize the potential relevance of social and economic impacts, even though the main focus of CEQA is on environmental impacts.
Under CEQA, agencies are prohibited from approving projects with significant environmental effects if there are feasible alternatives or mitigation measures that would lessen or avoid those effects. The Report adds that, “where a local agency has determined that a project may cause significant impacts to a particular community or sensitive subgroup, the alternative and mitigation analyses should address ways to reduce or eliminate the project’s impacts to that community or subgroup.”
Finally, the Report acknowledges that local agencies have discretion to approve a project, even one with unavoidable environmental impacts. However, the Report asserts that, if the benefits of a project will be enjoyed widely, but the environmental burdens of a project will be felt particularly by the neighboring communities, then that balance the agency has struck should be set out plainly in the statement of overriding considerations.
A copy of the Report can be found at:
Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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