As a core tenet of the environmental movement, environmental justice (EJ) continues to evolve in the state policy arena. However, states are realizing that as justice and equity policies progress, their government structure must also evolve to meet these new challenges.
Embodying environmental justice principles requires re-structuring key features of state government such as staffing, authority, resources, representation, and procedures. This “EJ Bureaucracy” varies immensely across the states, thus there are important questions to ask and practices to share in order to make sure that our state governments truly prioritize environmental justice.
This month, we were joined by Kristen Soares, State Climate Policy Network Manager, and Ruby Wincele, Research Associate, from Climate XChange, as well as Guillermo Rogel Jr., Legislative and Government Relations Advocate at Front and Centered, to discuss what exactly “EJ Bureaucracy” is, what recent state models exist, and what questions to ask when evaluating your state.
Kristen Soares, Climate XChange
State-level EJ bureaucracies show how state government staff and resources are organized to address and implement environmental justice issues, and there are many different ways to organize these entities. Broadly, there are two types of entities:
- Advisory bodies, which can include government staff but primarily include external environmental experts, as well as community representatives like nonprofit advocates and residents; and
- Government staff and bodies, made up entirely of government employees.
EJ Advisory Bodies
Advisory bodies are often called advisory boards or advisory councils. They are typically composed of non-governmental representatives, or a mix of governmental and non-governmental members. This typically includes external experts on environment-related issues, such as public health, energy, planning, and labor, and community representatives from local government, grassroots organizations, and tribal groups. Most advisory bodies also require representation specifically from EJ communities.
Advisory bodies make recommendations to governmental staff on how to incorporate EJ into agency decision making, regulations, and policies. Their responsibilities often include providing guidance on community outreach and engagement and creating opportunities for residents to raise concerns about EJ and public health in their communities. These bodies typically have no power to enforce or implement their recommendations.
EJ Government Staff
Governmental staff are the people receiving and implementing recommendations from the aforementioned advisory bodies, if a state has them. There are various ways government staff can be structured to implement EJ measures, but the following are some of the main ways these bureaucracies are organized across the country:
- EJ Coordinators, whose duties are often specifically related to enforcing Title 6 of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds. EJ Coordinators are often housed within states’ environmental agencies. Examples include Alabama’s Title VI/Environmental Justice Coordinator and Iowa’s EJ Coordinator in their Department of Natural Resources.
- Permanent EJ staff, who are dedicated to developing, implementing, and evaluating EJ policies and programs. They also often assist in coordinating EJ initiatives between the Governor’s office and state agencies. Titles vary, but examples include Massachusetts’ Director of EJ in the Executive Office of Energy and Environmental Affairs, or Illinois’ Environmental Justice Officer in the Environmental Protection Agency.
- Office of EJ, which often works to address environmental issues that affect marginalized communities through grant opportunities, enforcement of environmental laws and regulations, and community engagement. Some EJ Offices also provide guidance for state departments and agencies on implementing EJ. Examples include New Jersey’s Office of EJ housed in their Department of Environmental Protection, and Virginia’s Office of EJ housed in the Department of Environmental Quality.
- EJ initiatives within the Office of the Attorney General (OAG), which generally have two main purposes: 1. Oversight and legal enforcement of laws related to EJ, and 2. Engagement with marginalized communities on environmental issues concerning the OAG. While several states have led efforts related to these initiatives, California is the only current example, with a Bureau of Environmental Justice composed of 12 attorneys within the state Department of Justice.
- Agency (or interagency) body, which includes working groups, task forces, and councils that advise state agencies on EJ issues. Main responsibilities of these bodies include increased interagency coordination on EJ measures, identifying EJ communities, providing guidance on community engagement, and training state employees on EJ and equity. They are either housed within one agency or across multiple agencies, and are typically composed entirely of representatives from state agencies focusing on environment-related issues, like energy, transportation, public health, and labor. Examples include the California Environmental Protection Agency’s EJ Task Force, New York’s EJ Interagency Coordinating Council, and Connecticut’s Equity and EJ Working Group.
Ruby Wincele, Climate XChange
Ruby Wincele, Research Associate at Climate XChange, presented a framework to use when evaluating a state’s EJ bureaucracy and current examples in Oregon and Colorado. EJ entities vary across states, and there are certain questions you can ask to see if a state government is making sure these entities have the resources, funding, staff, and community/expert representation they need to fulfill their responsibilities. None of these questions have a right answer across all states, but they can serve as a starting point to assess effectiveness.
Exploring Your EJ Bureaucracy
EJ advisory bodies are created to make recommendations on policy and government strategy, and by their nature, they typically don’t have the power to implement those recommendations. However, they still serve an important role, and to assess how impactful your state’s advisory body is (or can be), here are a few questions you can ask:
Is the body established through legislation or executive order?
Does the EJ Advisory Body have clearly defined goals and outcomes?
Does the advisory body advise only the state environment department or multiple agencies?
(1) Are members all non-government representatives? Or a mix of government and non-government members?
(2) Are members appointed by the Governor? If not, who is appointing members?
Is there state funding to support the Advisory Body? Does agency staff provide support?
EJ government staff and bodies typically have more power than EJ advisory bodies to implement policies, and they are often involved in the development, deployment, and evaluation of EJ within state governments. However, their power and influence varies tremendously across states, and below are some questions to ask when evaluating your state’s governmental EJ staff.
Is environmental justice defined in the state?
Is the body established through legislation or executive order?
Are all relevant agencies represented in the EJ body?
Does EJ staff work across state agencies, or only within one agency?
How many staff members and state agencies are involved in EJ efforts in the state?
Are there clearly defined goals and outcomes?
Which of the following responsibilities are being met:
- Enhance community involvement in decision making;
- Enforce Title VI and other EJ-related policies;
- Define/identify EJ Communities;
- Develop human exposure data through models and tools
State Examples of EJ Bureaucracy Legislation
Ruby continued her presentation by highlighting some current examples of state legislation creating or expanding EJ bureaucracy, and she explored how they stand up to the above questions. Oregon’s Environmental Justice for All Act (HB 4077, 2022) and Colorado’s Environmental Justice Act (HB 21-1266, 2021) were the bills she focused on.
Both of the bills define EJ and create new EJ bodies, but the specifics differ. They also define communities of focus in regards to EJ, termed “environmental justice communities” in Oregon and “disproportionately impacted communities (DICs)” in Colorado. Their focus beyond this baseline language for EJ differs as well. Oregon’s bill focuses on the buildout of new tools and data on EJ, environmental health disparities, and pollution exposure, including requiring the development of an EJ mapping tool. Colorado’s bill commits the state to advancing EJ and reducing environmental health disparities in DICs.
The new positions and responsibilities created within each state’s EJ bureaucracy are also distinct. The Oregon bill renames the existing EJ Task Force as the EJ Council, expands its membership and capabilities, and dedicates staff support and funding for the Council from the Department of Environmental Quality (DEQ). Colorado’s bill creates an EJ Advisory Board, an EJ Task Force (with a mix of non-governmental and governmental members), and an EJ Ombudsperson responsible for community engagement and involvement with the Department of Public Health and the Environment (CDPHE). From just these two bills, it is clear that each state has a different approach to tackling EJ and its associated bureaucratic entities.
Deep Dive: Oregon and Colorado’s Bills
Ruby continued her presentation with an in-depth exploration of Oregon and Colorado’s EJ bureaucracies as laid out in legislation, using the questions laid out earlier in her presentation. She focused on the main advisory bodies created: Oregon’s EJ Council and Colorado’s EJ Action Task Force.
- Body Establishment
- Both bodies were created by legislation rather than executive order, meaning they likely have more longevity, as executive orders can be overridden by future governors, and more accountability to implement them as written in the bill. Additionally, the fact that they were passed by the legislature shows a baseline level of support across many of the state’s communities.
- Purpose & Responsibilities
- Both bodies were created to make recommendations to address EJ.
- Oregon’s Council is tasked with recommending methods to consider EJ impacts of policies, increase community engagement, and reduce environmental disparities. They must also develop an EJ Mapping Tool and identify EJ communities.
- Colorado’s Task Force is tasked with recommending ways to address EJ inequalities across the state, focusing on DICs in a comprehensive “state government EJ Plan”.
- Body Authority
- Both bodies task the relevant state agencies with the responsibility for implementation of their recommendations, not the advisory body itself.
- Colorado’s Task Force can also recommend which agencies should comply.
- Agency Coordination
- Oregon’s Council works with state agencies as needed, and those agencies can voluntarily comply with the Council’s recommendations.
- Colorado’s Task Force uses an agency-wide strategy, and they can make recommendations on which agencies follow that strategy.
- Body Makeup
- Oregon’s Council is composed of 13 non-governmental members appointed by the Governor.
- Colorado’s Task Force is composed of 27 members, including both governmental and non-governmental representatives. Member appointments are split amongst the Governor, Legislature, and Tribal governments.
- Oregon’s Council receives dedicated funding and DEQ staff support, and Councilmembers are compensated.
- Colorado’s funding is reserved for the CDPHE, but there is no explicit funding or agency support for the Task Force in the legislation.
These advisory bodies are not the only ones created by the aforementioned legislation, and the other pieces of the EJ bureaucracy created have supplementary roles and responsibilities. Below is an overview of which EJ entities fulfill each of the important tasks to implement EJ within state government.
EJ Council makes recommendations
EJ Action Task Force
Individual agencies have Title VI coordinators
Ombudsman can receive complaints; individual agencies have Title VI coordinators
EJ Action Task Force
EJ bureaucracy structure is not a ‘one size fits all’ approach – there are multiple types of bodies and staff positions that address the key responsibilities of EJ entities. The U.S. landscape of state-level EJ bureaucracies is growing, with half of all state governments housing some sort of EJ group, position, or office. Additionally, EJ bureaucracies as laid out in legislation sometimes don’t line up perfectly with how they are implemented, and while harder to track, following up on implementation is essential.
This framework, and its associated questions, doesn’t cover everything, nor is it a steadfast way of evaluating all state EJ bureaucracies, but it’s a good starting point when considering your state’s existing or proposed structures.
Guillermo Rogel Jr., Front and Centered
Guillermo Rogel Jr., Legislative and Government Relations Advocate at Front and Centered, joined to discuss what Washington State’s EJ bureaucracy looks like, as created by the HEAL Act (SB 5141), passed in 2021. This bill, the first of its kind, requires a coordinated state agency approach to EJ.
Front and Centered is a Washington-based coalition that provides EJ-related technical assistance to communities of color and low-income populations. They were involved in the four-year campaign to pass the HEAL Act and are currently working through implementation.
Introduction to the HEAL Act
One of the initial goals of the HEAL Act was to implement the recommendations of the state’s pre-existing Environmental Justice Task Force. The Act sought to incorporate EJ into agency decision-making processes, improve government accountability to communities, create an Environmental Justice Council to help facilitate this accountability, and create consistent, accessible pathways for communities to be meaningfully involved in government decision making processes. There were initially seven state agencies subject to the HEAL Act: the Departments of Ecology, Transportation, Commerce, Health, Natural Resources, and Agriculture, as well as the Puget Sound Partnership. Other agencies opted in after the bill’s passage, including the Office of the Attorney General and the Department of Fish & Wildlife.
One important piece of the HEAL Act was protecting tribal sovereignty and rights. The bill’s language ensures that the EJ Council includes two members representing tribal communities, and it also requires that covered agencies consult with tribes and follow all existing treaties to recognize their sovereignty.
The HEAL Act’s Requirements for State Agencies
The HEAL Act has four major requirements for covered agencies. First, EJ must be baked into the entire agency planning process from the start, rather than sprinkling in EJ concerns after the fact. Second, they must create a plan for equitable community engagement and public participation. This means going beyond simply informing communities about decisions or inviting them to a few meetings. Agencies should actively consult and collaborate with, and defer to, community members, and this must involve not only one EJ community liaison but policy staff as a whole. Third, they must incorporate EJ principles into budget and funding decisions, including consulting with the EJ Council on state decision packages before they’re submitted to the Governor. Lastly, agencies are required to conduct Environmental Justice Assessments (EJAs), as designed by the EJ Council and Interagency Workgroup, on “significant agency actions” (SAAs). SAAs are those actions that “may cause environmental harm or may affect the equitable distribution of environmental benefits to an overburdened community or a vulnerable population,” and they include significant legislative rules, new grant or loan programs, allocations of over $25M in a single funding round through grant or loan programs, major capital and transportation projects over $5M, and agency request legislation, with additional actions to be decided after 2025.
Q&A with Guillermo Rogel
Q: What type of compensation models are used for Advisory Board members to support organizations that may not otherwise be able to participate (e.g. Community Based Organizations, Climate Action Agencies, local government coalitions, etc)?
Guillermo: Compensation is definitely something we want to do, but that question has two answers. One of them is that in the HEAL Act there is actually something that requires members to be compensated, but there is something in State law that prohibits gifts of State funds. That’s sort of weird, since it’s not really a gift of funds, it’s compensating folks for their time — but that’s how the State would read compensation for community members, which makes it hard. So, there was a separate process going on at the same time, a law [SB 5793] that passed, that was searching for a way to compensate community members for their participation in, not just the EJ Council, but all statewide working groups. Because we didn’t want this to lead people to lose any kind of benefits, whether they’re state or federal.
And so, what folks are looking at is either (1) gift cards — which I don’t really support, because I think that limits folks in terms of what they can spend it on — or (2) contracting directly as employees of the State — which a lot of community members might not want to do, especially if that makes them reach a certain threshold where they lose benefits — or (3) contracting with a community based organization, who can then contract with community members. So, there’s the potential that, for example, Front and Centered could be that organization that receives funding from the State, and then contracts with the community members on the EJ Council. There are some stipulations; you can’t already be getting paid for your service on a council, and then get paid through the State. So there are some ways that we’re looking at that, and this bill [SB 5793] is more of a long-term solution that Washington State is looking towards.
Q: Can you expand on whether and how to make sure these EJ bureaucracies actually lead to better decisions and outcomes?
Guillermo: You need to give community a little bit of time to breathe as the Council, as these processes, are forming. I think state agencies are so used to, like, ‘Oh, we need a process, we’re good at that. We’ll make a document, we’ll put together a meeting, we’ll meet every three weeks and have this person lead it.’ But, community doesn’t work like that. Folks are working their normal jobs, so you need to give community members time to breathe as you’re implementing. And then, maybe hold off a little bit on forming that Interagency Workgroup. What we faced was that, right when the HEAL Act passed, the Interagency Workgroup started hiring, which is great — I think, well over 15-20 new staff members were hired as a result of the HEAL Act passing, and we had a $14, $15 million fiscal note, which is a lot of money for state agencies. So, you should pause a little bit, and let community catch up.
And there’s more on there, I think we fully got the Council seated in April, which was four months later than what the law said. By that time the agencies had already developed a lot of stuff, and in the first meeting, the Council was just bombarded. It was like, ‘Oh, can you review this, and we have this deadline for another competing bill.’ At the time, it was the new cap and trade program, which passed at the same time as HEAL. And so, they were just inundated with so much information, it was like — do you really want us here to provide feedback, or are you just here to tell us what you did without our input? So that’s something that state agencies need to look for.
Q: Does the HEAL Act include state laws and regulations to implement within EJ communities, beyond just including them in planning and budgeting, etc? Or is that in another bill?
Guillermo: Well, I don’t know if this fully answers the question, but one of the things is that the Council is going to have to review any kind of decision packages that agencies submit. So if there are new laws, if there are amendments, if there are budget decisions, the EJ Council has to be consulted.
And, I should have said this at the top, but when we drafted the HEAL Act, we gave community and the Council a lot of power. We wanted to empower community members to make decisions that state agencies are usually making, and that meant making their decisions binding, or in some way carry authority. But that was the first thing to go. The first meeting we had with legislators was like, ‘We can’t give community members that kind of authority, even if that’s delegation of authority, that’s not how we do things, community members are not trained to make those kinds of decisions.’ That was one of the first things to go. So, any recommendations that the Council made were now ‘recommendations’, and they didn’t carry authority. So I think that’s part of the issue we run into, — if we wanted to have that kind of impact, we would have to change the statute, or just empower folks a lot more.
Q: Who are the important partners to work with when crafting and advocating bills like the HEAL Act to create inclusive but feasible legislation for EJ bureaucracies?
Guillermo: I would definitely include many community organizations who are already doing, specifically, EJ work — as many as possible. There are a lot of climate organizations out there who don’t lead with EJ, but for us an EJ focus is important, because a lot of the climate movement in the past has left behind frontline community organizations and people. So start there.
For us, outside of community members, the business community was super involved, and I think anything you can do beforehand to bring them into the stakeholder process, you should. There will be disagreements, because what we’re trying to do is change how business is done, literally how business and how state agency business is running their processes. Those are probably the bigger ones, and then whatever climate activists you can bring in. But, I would say the priority is going to be as many community members as possible, community members who are already doing that work.