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Environmental Justice in General Plans: Strategic Considerations for Planning and Land Use Professionals

Environmental Justice in General Plans: Strategic Considerations for Planning and Land Use Professionals
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By Michele A. Staples

The California Governor’s Office of Planning and Research (OPR) updated its General Plan Environmental Justice Element Guidelines in June 2020 to address the Environmental Justice (EJ) requirements of Senate Bill 1000 of 2016, The Planning for Healthy Communities Act. (General Plan Guidelines Chapter 4: Environmental Justice Element (ca.gov).) The following is an overview of the EJ goals, requirements, procedures and tools, as well as insights into how they can inform diligence investigations for property acquisition and guide development project conceptualization.

The General Plan as the Planning and Land Use Framework

Every California city and county must have a General Plan, a long-term vision for their future growth and development. The California Supreme Court has characterized the General Plan as the “constitution” for a city’s or county’s growth and development. Like the state and federal constitutions, the General Plan sets the policy framework for the city or county which is then implemented through programs, ordinances and regulations. Virtually every land use decision in California is based on the city’s or county’s General Plan, including development project approvals. Development projects consistent with the General Plan can benefit from streamlined review while those inconsistent with the General Plan can be denied or their approvals overturned. In jurisdictions where the General Plan is found to be inadequate, courts have temporarily halted development project approvals until a legally valid General Plan is approved. As a result, the General Plan is the jurisdiction’s critical community planning document as well as the starting point for planners and land use practitioners evaluating property acquisitions, conceptualizing development projects and crunching projects pro forma.

General Plans are required to include seven “Elements”: Land Use, Housing, Transportation, Conservation, Open Space, Safety and Noise. (Gov. Code § 65302(a)-(g).) Each element has certain requirements that have evolved over time. Increased study and awareness of societal effects of unjust planning practices lead to Senate Bill (SB) 1000. SB 1000 requires cities and counties with identified disadvantaged communities in their jurisdictions to include an EJ Element or incorporate EJ policies in other General Plan elements. (Gov. Code, § 65302(h).) SB 1000 aims to correct the inequity to minority and low-income communities resulting from California’s history of discriminatory land use policies by reducing the pollution experienced by these communities and ensuring their input is considered in planning decisions that affect them.

Environmental Justice and Disadvantaged Communities Defined

EJ is defined as:

. . .the fair treatment and meaningful involvement of people of all races, cultures, incomes, and national origins with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. (Gov. Code, section 65040.12(e).)

Cities and counties with an identified “disadvantaged community” that revise two or more General Plan Elements concurrently are required to incorporate EJ into their General Plans. OPR strongly encourages jurisdictions without formally-defined disadvantaged communities to consider creating an optional EJ Element in order to promote equity and protect health and wellness in their communities.

Local jurisdictions have discretion to identify a disadvantaged community based on three identification methods in SB 1000. The first method of defining a disadvantaged community is based on the score calculated by the California Communities Environmental Health Screening Tool (CalEnviroScreen) developed by CalEPA’s Office of Environmental Health Hazard Assessment as a mapping tool to identify environmentally burdened and vulnerable communities for investment opportunity under the state’s Greenhouse Gas Reduction Fund Cap-and-Trade program. 25 percent of the proceeds from the fund must be spent on projects located in disadvantaged communities. Known as California Climate Investments, these funds are aimed at improving public health, quality of life and economic opportunity in identified disadvantaged communities while reducing greenhouse gas emissions.

The CalEnviroScreen model scores each of California’s 8,000 census tracts based on 12 types of pollution burden such as pesticide use, drinking water contaminants and proximity to hazardous waste generators and facilities, and eight socioeconomic and health-related characteristics indicators related to pollution including low-income, asthma and cardiovascular disease. The census tracts that score the highest are the most burdened and most vulnerable to pollution. Under the first method for identifying disadvantaged community, an area is a disadvantaged community if it scores 75 percent or higher on CalEnviroScreen. (Gov. Code, § 65302, subd. (h)(4)(A).)

The other two definitions of disadvantaged community in SB 1000 are based on low-income areas having a disproportionate pollution burden or other hazards that can lead to negative health effects, exposure or environmental degradation. SB 1000 defines a “low-income area” as: 1) an area with household incomes at or below 80 percent of the statewide median income, or 2) an area with household incomes at or below the threshold designated as low income by the Department of Housing and Community Development’s list of state income limits. If the local jurisdiction identifies low-income areas, it must then evaluate whether these areas are disproportionately affected by environmental pollution that can lead to negative health impacts, pollution exposures or environmental degradation. The CalEnviroScreen mapping tool displays its individual data layers that cities and counties can use as part of their examination of whether low-income areas may be disproportionately burdened by pollution. Tiffany Eng, the California Environmental Justice Alliance’s Green Zones Program Manager, suggests that jurisdictions can identify disadvantaged communities within their boundaries by layering available data such as air quality data, local tribal areas, ethnicity, and other socio-economic demographic information to create a composite map.

OPR recommends that jurisdictions conduct early community engagement, particularly with low-income communities, communities of color, sensitive populations, tribal governments, and organizations focused on public health and EJ during the disadvantaged communities screening process. This can help to ensure that the location of disadvantaged communities is accurately identified and the nature of their environmental burdens, concerns and needs are specifically defined.

The OPR Guidelines encourage cities and counties to go beyond the SB 1000 statutory definition when identifying disadvantaged communities within their jurisdiction and also consider issues unique to areas within their jurisdiction which might not be reflected in the statewide data sets, such as a high pollution burden for one type of pollutant even when the overall CalEnviroScreen score is less than 75 percent, or the regional cost of living. For example, OPR suggests that, depending on the data and information available, local governments should consider whether there are disadvantaged communities in geographic units smaller than a census tract to ensure that all disadvantaged communities are recognized.

In addition to helping cities and counties define the presence, location and needs of disadvantaged communities within their jurisdiction for purposes of General Plan EJ policies, the CalEnviroScreen mapping tool provides a wealth of information that can help identify project opportunities and constraints such as identified pollutants, groundwater threats, noise and other environmental hazards in the project site vicinity, as well EJ policies that discourage or promote certain types of development projects within areas identified as disadvantaged communities.

The Environmental Justice Process

Upon completion of the screening process, the city or county is required to include detailed information in the General Plan identifying and clearly defining the disadvantaged communities within the area covered by the General Plan, including their location and the nature of their environmental burdens, health risks and needs. The General Plan’s EJ topics include information such as pollution exposure including air quality, water quality and land use compatibility; public facilities; accessibility to public transit, employment and services; health risks such as high fire threat and seismic risk areas; civic or community engagement; and prioritization of improvements.

Once the needs are clearly defined, local agencies are to develop draft goals, objectives, policies and programs to reduce health risks and associated issues with the aim to ensure fair treatment and meaningful involvement of people of all races, cultures, incomes and national origins. Government Code § 65302(h) requires the General Plan to identify specific EJ objectives and policies that do at least the following:

Reduce exposure to pollution including improving air quality in disadvantaged communities. The OPR Guidelines suggest this could include land use and project siting, transportation improvements, tobacco smoke, pesticide drift and water quality, accessibility and affordability.

Promote public facilities in disadvantaged communities. Examples include equitable access and connections to public services and community amenities.

Promote food access in disadvantaged communities. Examples include streamlining project approvals for grocery stores in underserved areas, promoting community gardens and improving connectivity and transportation to provide access to grocery stores and farmer’s markets.

Promote safe and sanitary homes in disadvantaged communities. Examples include siting new housing near transportation and amenities, enforcing code requirements and providing and preserving affordable housing.

Promote physical activity in disadvantaged communities. Examples include prioritizing park improvements in underserved areas; shared use agreements with schools, places of worship and other private properties; and planning connected bike and pedestrian routes and pathways.

Reduce any unique or compounded health risks in disadvantaged communities not otherwise addressed above. The OPR Guidelines discuss is some depth the example of disadvantaged communities’ heightened risk and increased sensitivity to climate change with less capacity and fewer resources to cope with, adapt to or recover from climate impacts.

Promote civic engagement in the public decision-making process in disadvantaged communities. Examples given in the OPR Guidelines include partnering with community-based organizations, advocacy groups, and trusted leaders that work within the identified disadvantaged communities, and continuing to engage disadvantaged communities in General Plan implementation including review of new development projects, capital improvement plans, and other programs.

According to Ms. Eng, effective community outreach efforts have involved the participation of neighborhood schools, churches, housing justice organizations and environmental justice groups. One real measurement of EJ adequacy is whether community recommendations and feedback are incorporated into the final policies.

OPR’s guidance on the EJ process puts a premium on community engagement in defining needs and developing and vetting policies. Likewise, the California Attorney General’s comments on several cities’ and counties’ proposed EJ policies (posted at SB 1000 – Environmental Justice in Local Land Use Planning | State of California – Department of Justice – Office of the Attorney General) are particularly focused on robust community engagement to identify EJ needs within each city and county, and incorporating clear and actionable requirements responsive to community comments in General Plans to accomplish EJ goals.

It is critical that the affected communities support the policies and programs intended to address their specific issues and needs. Those living in disadvantaged communities often have not participated in city and county decision-making processes, so staff and governing boards tasked with formulating objectives and policies to resolve environmental inequities might not have been made aware of specific community needs and the day-to-day barriers in the particular disadvantaged communities needing solutions. Ms. Eng points out that any investment in a disadvantaged community can lead to unintended consequences like rising housing prices and displacement. Proactive community engagement also provides opportunities for trust building, open communication and education between developers (who have knowledge and resources for housing and infrastructure) and residents (who have knowledge about the neighborhood that the developer may not otherwise have access to).

The City of Placentia Example

The City of Placentia’s (City) Health, Wellness, & EJ Element is considered by OPR to be an example of a successful EJ process and garnered state and local awards for Opportunity and Empowerment from the American Planning Association California Chapter’s Award of Merit and Orange County Section of the California Chapter of the American Planning Association’s Award of Excellence. The City’s EJ community outreach program included collaboration with a local nonprofit organization located in one of the disadvantaged communities, LOT318, to engage with local residents in their neighborhoods through community meetings and surveys. The City provided outreach materials in Spanish and other appropriate languages, and provided a translator or translation headsets at public meetings to enable residents to engage firsthand with the meeting content. Because of the City’s effective community outreach efforts, its EJ Element was able to detail residents’ concerns and specifically address those concerns through the goals and policies.

Joe Lambert, director of development services for the City, purposely structured community meetings as talking with neighbors. The City learned through those discussions about physical barriers to health and wellness such as inadequate sidewalks and street lights making residents feel unsafe walking their children to school alongside traffic or walking 20 minutes from the nearest parking space to their apartment after dark. A lack of public transportation prevented residents from accessing healthy food choices located too far away at the farmers market and grocery stores. Renters put up with subpar living conditions because they were afraid of the potential ramifications if they asked the landlord to make repairs. Obtaining such specific community input enabled Placentia to develop EJ policies that directly address the concerns raised by the community relating to improved pedestrian lighting and code enforcement, increased access to green spaces to encourage physical activity, and expanded hours and locations for food distribution programs.

Involve and Engage Disadvantaged Communities in General Plan Implementation

OPR suggests that local jurisdictions should continue to involve and engage disadvantaged communities in General Plan implementation activities on an ongoing basis after adoption of the General Plan update. For example, civic engagement should be included in reviewing proposed development projects and associated entitlements, proposals for amending zoning or other implementing codes or standards, local neighborhood-level Specific Plan or revitalization efforts, and capital improvement plans or facility master planning. Public outreach should address barriers to participation such as language and transportation to foster transparency and enable community input to influence the planning process. The OPR Guidelines further suggest that all cities and counties, not just those with disadvantaged communities, implement such a holistic planning approach in their General Plan or other local planning documents to promote equity and protect human health from environmental hazards.

For development projects within identified disadvantaged communities, the city’s or county’s EJ outreach program may provide a template for how public review and comment on project entitlements will be handled.

Examples of Environmental Justice Policies

OPR has developed Model EJ Policies for General Plans to accompany the OPR Guidelines (Model EJ Policies for General Plans (ca.gov)). The OPR Guidelines also provide links to EJ Elements and policies in city and county General Plans as examples.

Many EJ policies are familiar land use and planning topics, such as promoting transit-oriented development and encouraging water- and energy-conserving features in new development projects. Some EJ policies such as the following city General Plan policies are tailored specifically to community barriers to health, wellness and engagement in order to address the unique and compounded health risks to EJ communities as required by SB 1000:

Consider environmental justice issues as they are related to potential health impacts associated with land use decisions, including enforcement actions, to reduce the adverse health effects of hazardous materials, industrial activities, and other undesirable land uses, on residents regardless of age, culture, ethnicity, gender, race, socioeconomic status, or geographic location (National City HEJ-1.2)

Consider any potential air quality impacts when making land use or mobility decisions for new development, even if not required by California Environmental Quality Act (Placentia HW/EJ 10.9)

Conduct City Council visits to disadvantaged neighborhoods to encourage discussion on items that affect the residents and businesses. Have Council accompanied by representatives from Police, Code Enforcement, Development and Community Services, and other departments. Host an annual community walk with the Mayor and other Council members (Placentia HW/EJ 15.6)

Promote capacity-building efforts to educate and involve traditionally underrepresented populations in the public decision-making process (Inglewood EJ-1.9)

Encourage the development of healthy food establishments in areas with a high concentration of fast -food establishments, convenience stores, and liquor stores. For example, through updated Zoning regulations, tailor use requirements to encourage quality, sit down restaurants, in areas that lack them (Inglewood EJ-4.2)

Prioritize projects that significantly address social and economic needs of the economically vulnerable populations. Address and reverse the underlying socioeconomic factors and residential social segregation in the community that contributes to crime and violence in the city (Richmond HL-33)

Ensure that contaminated sites in the city are adequately remediated before allowing new development. Engage the community in overseeing remediation of toxic sites and the permitting and monitoring of potentially hazardous industrial uses. Develop a response plan to address existing contaminated sites in the city. Coordinate with regional, state, and federal agencies. Include guidelines for convening an oversight committee with community representation to advise and oversee toxic site cleanup and remediation on specific sites in the city. Address uses such as residential units, urban agriculture, and other sensitive uses (Richmond HL-40).

The information in an EJ Element can inform private planning and land use decisions, such as whether the local jurisdiction considers certain locations appropriate for new residential, commercial or industrial projects and whether there may be additional procedural steps in the entitlement review process. For development projects located within an area identified as a disadvantaged community, the EJ policies help identify on- and off-site infrastructure, amenities and services that may be required in connection with project development, and provide a ready source of information to help analyze the compatibility of a proposed project, the potential extent of California Environmental Quality Act review and mitigation measures, and community organizations that should be consulted in the project conceptualization process.

Environmental Justice Resources

Helpful EJ resources appear below:

The Attorney General’s SB 1000 webpage (SB 1000 – Environmental Justice in Local Land Use Planning | State of California – Department of Justice – Office of the Attorney General) includes helpful links to EJ resources including the Attorney General’s EJ-related comments on several city and county draft General Plans, example EJ Elements and policies, a link to CalEnviroScreen and links to each of the 12 pollution indicator maps, CalEPA’s Disadvantaged Communities Mapping Tool, and several other regional, state and federal environmental mapping tools.

The OPR Guidelines (https://opr.ca.gov/docs/20200706-GPG_Chapter_4_EJ.pdf) include a list of several scientific based tools developed by other agencies and academia that provide information relevant to EJ considerations, as well as links to EJ Elements and policies in General Plans adopted by several jurisdictions throughout the state.

The following OPR email address is dedicated to SB 1000 questions: SB1000@OPR.CA.GOV.

Background information detailing the root causes of California’s environmental inequities is included in the OPR Guidelines and in the 2017 book, The Color of Law: A forgotten History of How Our Government Segregated America, by Richard Rothstein.

The California Environmental Justice Alliance (one of the SB 1000 co-sponsors) prepared the “CEJA SB 1000 Implementation Toolkit” to provide guidance on implementing SB 1000’s mandates: https://www.caleja.org/sb1000-toolkit

Conclusion and Implications

Environmental Justice-related tools will help guide more equitable planning policies while providing valuable resources to inform property acquisition and development project conceptualization. Perhaps EJ’s greatest value will be the beneficial results of fostering communication with residents who have not been involved in the decision-making processes affecting them and the societal and economic benefits resulting from reversing the negative effects of pollution and environmental degradation that have burdened the most vulnerable for too long.

Michele A. Staples, Esq., is a shareholder of Jackson Tidus, A Law Corporation. Michele has over 30 years’ experience representing a broad spectrum of clients from publicly traded companies to individuals in land use, project entitlement, water resources and environmental matters. Michele’s experience includes conducting diligence investigations on behalf of developers for acquisition of property and projects, securing land use entitlements for commercial, residential and mixed-use projects, obtaining permits and approvals to revamp development projects to respond to changing market conditions, and resolving high-profile disputes involving development and use of land, natural resources and water resources. Ms. Staples is a long-serving member of the Advisory Board of the California Water Law & Policy Reporter and a frequent contributor to the California Land Use Law & Policy Reporter.