LAWS vs REGULATIONS vs POLICIES

1. LAWS vs REGULATIONS vs POLICIES • LAWS (LEGISLATION OR STATUTES) • ENACTED BY A LEGISLATIVE BODY & ONLY THAT BODY CAN CHANGE OR REPEAL • ENFORCEABLE BY SOMEBODY (GOVERNMENT AGENCY, ATTORNEY GENERAL, PRIVATE PERSONS) • PROVISIONS ARE LESS DETAILED THAN REGULATIONS (OFTEN DIRECTS AGENCY TO DEVELOP REGULATIONS) • CARRIES GREATER AUTHORITY THAN REGULATIONS OR POLICIES • REGULATIONS • ENACTED BY A GOVERNMENT AGENCY THROUGH FORMAL RULEMAKING PROCESS & ONLY THAT AGENCY CAN CHANGE OR REPEAL • USUALLY ONLY ENFORCEABLE BY THE AGENCY, SOMETIMES CAN BE ENFORCED AGAINST THE AGENCY • PROVISIONS VERY DETAILED—FILLS IN GAPS IN LAWS • CARRIES LESS AUTHORITY THAN LAWS BUT MORE THAN POLICIES (CANNOT CONFLICT WITH LAWS) • POLICIES • ENACTED BY A GOVERNMENT AGENCY WITHOUT FORMAL RULEMAKING & ONLY THAT AGENCY CAN CHANGE OR REPEAL • USUALLY NOT ENFORCEABLE-MEANT TO PROVIDE GUIDANCE TO AGENCY OR OTHERS • PROVISIONS CAN BE DETAILED OR VAGUE • CARRIES LEAST AUTHORITY

2. State Environmental Justice Laws: A Connecticut Story -by Mark A. Mitchell, MD, MPH Founder, Connecticut Coalition for Environmental Justice President, Mitchell Environmental Health Associates

3. Why an EJ Law—Issues • CCEJ officially began in Hartford in1998 around issues of: • North Hartford Landfill • Asthma • Power Plants • Trash Incinerator • Similar issues, if not always same players in other CT cities • English Station Power Plant in New Haven • Bridgeport Harbor Power Plant

4. Why an EJ Law—Lack of Community Input • Lack of effective and timely community or local governmental notification • If notified, community and government not understand consequences of proposed facilities • EJ communities and governments not able to respond due to lack of appropriate resources and local politics • Disproportionate environmental and health impacts

5. Why an EJ Law-Legal Structure in 2002 • Inadequate notification processes and disproportionate impact are perfectly legal and customary, • therefore upheld judicially • DEP Environmental Equity Policy unenforceable • Regulations harder to pass than legislation

6. Why an EJ Law—Political Structure in 2002 • Republican governor and administration • Democratic legislature • Public officials and communities unfamiliar with EJ • CCEJ had good experience in legislature • Asthma and diesel • Mercury laws • Sooty Six • People of Color rarely seen in capitol

7. 2002 EJ Bill • Started out to codify DEP’s Environmental Equity Policy • Required EJ Action Plans for DEP, DMV, and certain other state agencies submitted for comment to state civil rights agency • 13 co-sponsors, no apparent opposition • Passed out of committee as study bill and eventually died

8. Critique of 2002 EJ Bill • Progressives did not like it because it only required plans, not actions • Conservatives thought that review by the civil rights agency implied intentional discrimination • DEP wanted more guidance on how the process would evolve • The opposition to the bill was very well hidden

9. 2004 EJ Bill • Require DEP to identify and notify communities that are environmentally overburdened (no reference to race, income) • Require DEP, the utilities regulator and other agencies to develop EJ rules and regulations and to reduce pollution in overburdened communities • Business opposed it as anti-business, over regulatory • DEP opposed it as politically unworkable

10. 2005 EJ Bill • Similar to 2004-overburdened communities • Built up coalition • More events at the capitol • Breakfasts • Press events • Lobby days • More in-district calls, activities in key districts

11. 2005 Bill (cont’d) • Required DEP, public utilities, trash incinerator, and other agencies to consider EJ and how to reduce pollution from existing facilities • Because it applied to several agencies, it had to go through many legislative committees • Bill did not make it through all of the committees before the end of the session

12. EJ Bill 2006 • DEP Commissioner, Gina McCarthy, met with us and suggested ways for us to decrease opposition to the bill by • Making it more specific, • Defining overburdened communities • Drawing maps showing overburdened census tracts • Deciding which facilities would be included in the bill • Only consider new facilities, not existing ones • Consider using a less pejorative label than “overburdened” • The idea was that those communities and industries that were not included in the bill would no longer oppose it

13. EJ Bill 2007 • Similar to 2006 • Used “environmentally stressed community” instead of “overburdened” • Developed race and income census tract maps with Council of Governments • Defined income in a way that covered all the EJ communities we were concerned about • Required agencies provide environmental benefits to communities if a fourth or more polluting facilities are proposed or expanded within one mile of an EJ community • Required preference for state grants to EJ communities

15. 2007 Bill (cont’d) • Killed in Transportation Committee by construction industry because it included asphalt and concrete batching facilities • Chair of committee owned construction company • Surprise vote in the hallway outside of House chambers • Lost by 2 votes

16. 2008 Final Bill • Had new energetic urban legislator as champion • Had support of DEP to identify and solve problems • Limited scope of legislation to DEP and another agency to limit number of needed committees • Exempted some powerful interests • Accepted an amendment from Republicans limiting placement of asbestos waste next to homes • Passed 139 to 9 in House after 90 minutes of debate, unanimous in Senate

17. What Does the Law Do? • Defines EJ Community • Defines facilities of concern “Affecting Facilities” • Requires permit applicants for a new or expanded affecting facility to • get approval of an expanded public outreach plan from DEP • Host community meetings at least 60 days before a public hearing on a proposal • Consult with the mayor of a town about the need to provide environmental benefits

18. Regulated Facilities The types of new or expanded affecting facilities include: • Electric generating facilities with capacities of more than 10 megawatts; • Sludge and solid waste incinerators or combustors; • Sewage treatment plants with a capacity over 50 million gallons per day; • Three types of solid waste facilities (intermediate processing centers, volume reduction facilities, and multi-town recycling facilities) with a combined monthly volume in excess of 25 tons; • New or expanded landfills, including those that contain ash, construction, and demolition debris or solid waste; • Medical waste incinerators; and • Major sources of pollution under the Clean Air Act (e.g., large factories).

19. Lessons Learned • There is a lot of hidden opposition to racial bills • Need to build a broad based coalition to help plan and support the bill • Know your opposition • There is no substitute to being in the capitol • Need backing from leadership, but a champion who has time to follow-up and negotiate with the opposition • You need someone in the capitol shepherding the bill almost every day • Be persistent !

20. For Further Information Contact Mark A. Mitchell M.D., MPH Mitchell Environmental Health Associates mmitchell@enviro-md.com 860-794-9497

21. Thank You The End The End