Maine’s government has about eight months to come up with a definition of environmental justice that will guide new legislation in the state. That task comes on the direction of a law passed in the Maine Legislature last month.
With that law, Maine joins a growing group of states enacting similar legislation to reduce pollution and climate change impacts on vulnerable communities. But Maine and other states are finding that while it’s easy to agree environmental justice is important, it’s much harder to actually come up with a specific legal definition, much less to enact policies that make that definition meaningful.
Maine’s law originally would have directed the Public Utilities Commission to begin considering the state’s long-term emissions goals in its decisions, as well as to “address and mitigate disproportionate energy burdens on environmental justice populations, frontline communities” and other underserved utility customers. This would be in addition to its other responsibilities of ensuring energy reliability and affordability. But the equity piece was removed when stakeholders raised concerns about a lack of clear definitions or criteria to guide decisions, which could lead to lawsuits against the state.
Instead, the final law requires the Governor’s Office of Policy Innovation and the Future to define “environmental justice,” “environmental justice populations,” “frontline communities” and other terms. Officials will also have to develop methods to incorporate equity into decision-making at the Public Utilities Commission, the Department of Environmental Protection and other state agencies. The legislature can then use the state’s recommendations to create new laws.
“This bill has just been enacted, so we’re kind of thinking about how to best accomplish this work [and] what stakeholders need to be engaged,” said Hannah Pingree, director of the Office of Policy Innovation and the Future. The law “is sort of the next phase of doing the hard work to get it right.”
Pingree and others said that while other states have launched similar initiatives, and several have made substantial progress, their definitions can’t easily be applied to Maine. Lawmakers originally considered using definitions laid out in Massachusetts’ new climate law, but Maine has a longer coastline, is much more rural, and has higher proportion of White residents than Massachusetts.
Given those factors, officials need to be careful to create definitions that account for all of the state’s demographic groups while determining which communities are truly overburdened and need resources to lessen that burden. For example, coastal communities will see the effects of sea-level rise before places further inland, making them potential “frontline communities.” But with wide income gaps among these communities, it may not be prudent for the state to prioritize all of them the same.
The modern environmental justice movement in the United States is usually traced back several decades. A key moment came in 1982, when residents of Warren County, North Carolina, protested the state’s attempt to empty contaminated soil at a local landfill. Most of Warren County’s residents are Black, and environmental justice efforts often focus on communities of color, which tend to be more exposed to environmental hazards than majority-White communities.
“Environmental justice is related to this idea of uneven burdens and benefits and this historic legacy of racism in this country that has put people of color, poor people, Indigenous people at greater risk for lots of things,” said Ana Baptista, associate director of the Tishman Environment and Design Center at The New School. Concerns among environmental justice advocates include pollution like in Warren County, as well as climate change, which disproportionately affects certain communities — often those most affected by other environmental hazards.
Still, there’s not a consistent definition or set of criteria across the country to determine what constitutes an “environmental justice community.” Baptista has been tracking state efforts to do so. Currently, she records seven states that have adopted definitions of “environmental justice” or related terms in state law. Several states have also implemented definitions as part of agency initiatives related to pollution reduction and toxic facility siting.
It’s important for states to know what their purposes are in defining environmental justice, Baptista said, since that could affect the definitions.
And the definitions shouldn’t be the end goal of efforts to address environmental justice, added Nicky Sheats, director of the Center for the Urban Environment at the Watson Institute for Urban Policy and Research at Kean University.
“We are actually afraid that a lot of places will get stuck at only creating a tool,” Sheats said. “They’ll create a tool and say, ‘Well, we have this tool which you can use to define an [environmental justice] community.’ But then what’s the policy?” The definitions in New Jersey, for example, are part of the broader law on siting of toxic facilities.
Baptista and Sheats helped push forward New Jersey’s environmental justice law, which was passed in September. The law requires the state’s Department of Environmental Protection to deny permits for new polluting facilities deemed to have a negative environmental or public health impact on overburdened communities. Notably, it requires the department to consider “cumulative impacts” when making its decision: factors outside the facility in question, such as other existing sources of pollution, that could collectively create a higher burden for the community.
Not without controversy
The process of arriving at New Jersey’s final law “was not uncontroversial,” Baptista said, even despite decades of environmental justice activism in the state.
“Overburdened community” in New Jersey’s case means any census block group in which at least 35% of the households are considered low-income, at least 40% of the residents identify as minority or are part of state-recognized tribal communities, or at least 40% of the households have limited English proficiency.
It could be beneficial to protect environmental justice communities that aren’t overburdened now but may be in the future, Sheats said, “because of the unfortunate role that race and income play in our society.” Conversely, some overburdened communities aren’t necessarily environmental justice communities — for example, affluent coastal communities. They may not need as much policy protection as environmental justice communities, though Sheats added they still might need some.
Massachusetts’ new law, passed in March, includes among other things a definition of “environmental justice population.” It’s similar to New Jersey’s, though with different numbers. For example, a neighborhood made up of 25% minority residents can be considered an environmental justice population, although the state can determine the designation doesn’t apply depending on factors such as income levels and access to natural resources.
In Massachusetts, policymakers originally questioned whether race could constitutionally be included in the criteria. A letter from Conservation Law Foundation signed by a group of legal experts from around the country argued that it is constitutional and also pointed out that data “show that race is the most consistent factor in determining the location of commercial hazardous waste sites, nationally.”
Baptista said it’s not surprising that states hesitate when they have to define environmental justice in law, but they’re not without resources to help. New Jersey had years of empirical studies, mapping and committee work under its belt. Other programs, like weatherization assistance programs, have eligibility criteria that could be applied in environmental justice policy. And states have precedent now in the places that have created definitions.
Part of the problem, Baptista said, is a lack of political will to create policies that put those definitions to use. “I think now the demands are, well, we’ve studied it, we know the disparities exist, what are we willing to do about it besides just talk about it,” she said.
‘Protecting what is sacred’
Communities in Maine have faced environmental justice challenges for years, even if they haven’t labeled it as such, said Maulian Dana, ambassador of the Penobscot Nation. For example, she said, the Penobscot reservation is located between a landfill and a paper mill, both of which have been cause for complaints from residents for dumping waste in the Penobscot River.
“Bringing [environmental justice] to the state policy level is a whole new adventure for everyone involved,” Dana said. She co-chairs Maine’s Equity Subcommittee, which was created to ensure the state’s new climate plan is implemented fairly. Dana and Pingree, at the governor’s office, said members of the equity subcommittee will likely participate in the upcoming process of defining environmental justice, along with other environmental experts and state officials.
Dana is on the Permanent Commission on the Status of Racial, Indigenous and Maine Tribal Populations, which was established in 2019. She said communities that may be included in Maine’s environmental justice policy could include people of color, immigrants and people in labor unions. “We do have these stark inequities between different communities in Maine,” she said.
For example, Maine, like much of the country, just experienced a severe heatwave, and many people in poverty don’t have heat pumps or air conditioning to deal with it. Protecting those people is a priority, Dana said.
Environmental justice activism is often confrontational, she said, but “I think environmental justice, at its core, is protecting what is sacred.”