The Networker, March 15, 2007
A MODEL STATE ENVIRONMENTAL QUALITY ACT FOR 2007
[Rachel's introduction: The Science and Environmental Health Network (SEHN) has written a model environmental quality act -- a draft, mind you -- intended for debate by the people and eventually enactment by state legislatures. This is important, path-breaking work.]
By the Science and Environmental Health Network (SEHN)
It is time to bring out the new models. Environmental laws, like automobiles, are due for a major redesign.
One place to start is with state environmental quality legislation. Fewer than 20 states have their own environmental quality acts, or "little NEPAs," most of them developed in the 1970s when the environment was high on the national agenda as well. Now more states are considering such legislation, especially as federal rules and enforcement have been gutted and subordinated to the politics of business interests.
SEHN's legal director, Joe Guth, has been helping states work out more comprehensive and forward-looking legal approaches to guaranteeing a livable world for future generations. In the process he has devised a model State Environmental Quality Act that incorporates the precautionary principle, environmental justice, consideration of cumulative harmful impacts, and the legacy we leave future generations as well as many other progressive developments in environmental policy and law of the last few years.
The full text of the act is available here. Read on to learn more about the model act and why we wrote it this way.
We've learned a lot since the big environmental laws were drawn up in the 1970s. Much of what we've learned can be summed up this way: You can't treat "the environment" as separate from humans. In fact, human health depends upon three "environments":
1) The natural environment (air, water, soil, flora and fauna)
2) The built environment (roads, power plants, suburban sprawl, chemicals, etc.)
3) The all-important social environment (relationships of trust, mutual respect, and friendship but also poverty, racism and white privilege, sexism, homophobia, insecurity, the sense that life is out of control, and so on). The social environment creates what the United Nations calls "the social determinants of health." There is a very large body of literature indicating the importance of these determinants of a person's resilience in the face of stress.
All three environments are always intertwined in all "environmental" work. This model law is the first, as far as we know, to address all three environments. It is aspirational, representing the best, most up-to-date thinking of the environmental movement in all its forms, including environmental justice and health. It is also a work in progress that is meant to be adapted, improved, and used in whole or in part.
We acknowledge the fine work of the State Environmental Resource Center (SERC), whose model bill provided the skeleton for this version. You can find it here.
What Is New in This Act
Our model act incorporates major changes to the SERC document, however, and in so doing breaks significant new ground. Here are some examples:
The Act leads off with the public trust duty of government and environmental justice and incorporates these principles throughout. Environmental justice is a primary, not a secondary consideration:
Chapter 1 (A) "... the State holds the environment in public trust for the benefit of all the people of the State, and therefore has an obligation to develop and maintain a high quality environment for present and future generations."
Chapter 1 (B) "[The state policy is to] take all action necessary to ensure the fair treatment of people of all races, cultures and incomes with respect to the development, adoption, implementation and enforcement of all environmental laws, regulations and policies."
This Act switches the burden of proof to proponents of a project to establish a reasonable certainty that the proposed project will cause no significant adverse effect on the environment or unfair treatment.
This language is found throughout the Act, for example in Chapter 3 Sec. 3.1:
"A proponent of any proposed project may prepare an Environmental Assessment demonstrating, on the basis of substantial evidence in light of a complete record, a reasonable certainty that the proposed project will cause no significant adverse effect on the environment or unfair treatment."
It incorporates the precautionary principle's approach to evaluating evidence of environmental harm or unfair treatment in the absence of complete scientific certainty.
In Chapter 2, the definition of "Evidence" (M) is:
"all information establishing facts and reasonable assumptions predicated on those facts, including evidence provided by individuals, community members and members of the public even if not presented in rigorous scientific form, as appropriate to the relevant social, economic or technical factor being evaluated. When a project raises a threat of harm to human health or the environment, that threat may preclude a conclusion that there is a reasonable certainty that the project will cause no significant adverse effect on the environment or unfair treatment even if all cause and effect relationships are not fully established scientifically."
It incorporates specific requirements for Environmental Assessments, Environmental Impact Statements, and government reviews of those documents to consider the public trust, environmental justice, future generations, cumulative impacts, and full analysis of alternatives.
Chapter 1 (J) "[The state policy is to] deny projects as proposed if there are feasible alternatives or feasible mitigation measures available, including the option of not doing the project at all, which would substantially lessen unacceptable adverse environmental effects or unfair treatment based on race, culture and income of such projects."
Chapter 3 Sec 3.1 (B): "The lead agency shall evaluate the Environmental Assessment, in consultation with the public, and shall consider information it receives from the public, as well as qualitative and quantitative social, technical and economic factors; the public trust; advantages and disadvantages in both the short term and for future generations; whether the project raises a threat of harm to human health or the environment; and cumulative impacts."
The definitions of environmental justice (unfair treatment) and cumulative impacts build on recent progress in environmental justice legislation, notably in California.
Chapter 2 (J) "'Cumulative Impacts' means the total of the public health and environmental effects in a geographic area or in a population from all types of degradation and damage from all sources combined, including pollution from all emissions and discharges, whether single or multi-media, routinely, accidentally or otherwise released.? The Cumulative Impacts that may be caused by a particular source of degradation of the environment or damage to public health means the total of all adverse effects to human health and the environment that the source may cause, taking into account all factors that may affect the impact of those adverse effects, including all other sources of environmental degradation or health damage, the existence of sensitive or highly exposed populations (including children and workers), and all relevant socioeconomic factors and social determinants of health including income, access to health care and health status of the affected populations."?
This bill contemplates that projects might improve the environment and not always degrade it. It creates a preference for alternatives that improve the environment over those that are neutral, and for those that are neutral over those that degrade the environment.
Chapter 3 Section 3.3 (C) (ii) "[The lead agency will] prefer projects and alternatives that the proponent has demonstrated are reasonably certain to provide an improvement in the quality of the air, water, soil and biodiversity of the environment over those that will not affect such quality; and prefer projects and alternatives that the proponent has demonstrated are reasonably certain not to affect such quality over those that will diminish it."
It requires that any compensating remediation benefit the same community that is damaged by other aspects of a project.
Chapter 3 Section 3.3 (C) (iii) "[The lead agency will] ensure that if a project or alternative comprises one element that remediates existing environmental damage or unfair treatment as compensation for a significant adverse effect on the environment or unfair treatment caused by another element of the project, such remediation benefits the same community as is harmed by the significant adverse effect or unfair treatment;
It requires proponents of projects to pay for all agency attorney fees and expenses if they challenge an agency finding--Chapter 3 Section 4.3 (D)--and provides for agencies to require a performance bond from proponents of projects--Chapter 3 Section 3.3 (C) (iv).
You can find the model law as a PDF document here. We hope you will use this model law, adapt it, and make it better. Let us know how it serves you.
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