S-0281.2

SENATE BILL 5141

BySenators Saldaña, Lovelett, Carlyle, Das, Frockt, Hasegawa, Hunt, Keiser, Kuderer, Liias, Nobles, Pedersen, Rolfes, Stanford, and Wilson, C.

AN ACT Relating to implementing the recommendations of the environmental justice task force; adding new sections to chapter 43.70 RCW; adding a new section to chapter 43.21A RCW; adding a new section to chapter 43.23 RCW; adding a new section to chapter 43.30 RCW; adding a new section to chapter 43.31 RCW; adding a new section to chapter 47.01 RCW; adding a new section to chapter 90.71 RCW; and adding a new chapter to Title 70A RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1. FINDINGS AND INTENT.(1) The purpose of this act is to implement recommendations of the environmental justice task force created by section 221(48), chapter 415, Laws of 2019, entitled "Report to the Washington state governor and legislature, Environmental Justice Task Force: Recommendations for Prioritizing EJ in Washington State Government (October 2020).

(2) The task force provided recommendations to state agencies for measurable goals and model policies to reduce environmental health inequities in Washington, equitable practices for meaningful community involvement, and how to use the environmental health disparities map to identify overburdened communities. In order for all communities in Washington state to be healthy and thriving, state government must concentrate on communities that currently do not meet environmental health standards.

NEW SECTION.  Sec. 2. DEFINITIONS.The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Agency" includes the departments of ecology, health, natural resources, commerce, agriculture, and transportation, the Puget Sound partnership, and any agency that opts to assume the obligations of this act pursuant to section 11 of this act.

(2) "Council" means the environmental justice council established in section 12 of this act.

(3) "Cumulative impact" means the combined impact of multiple environmental health factors on a population that includes geographic, socioeconomic, historic disadvantage, public health, and environmental benefits and harms.

(4) "Environmental benefits" means activities that:

(a) Prevent or reduce existing environmental harms, or associated risks that contribute significantly to the cumulative impact;

(b) Meaningfully protect overburdened communities and vulnerable populations from, or support community response to, the impacts of environmental harm; or

(c) Meet a community need identified by an overburdened community or vulnerable population that is consistent with the intent of this act.

(5) "Environmental harm" means the individual or cumulative impacts and risks to communities caused by historic, current, and projected:

(a) Exposure to conventional toxic hazards in the air, water, and land;

(b) Adverse environmental effects, which are environmental conditions caused or made worse by contamination or pollution or that create vulnerabilities to climate impacts; and

(c) Impacts from climate change.

(6) "Environmental health disparities map" means the data and information developed pursuant to section 19 of this act.

(7) "Environmental impacts" means environmental benefits or environmental harms, or the combination of environmental benefits and harms.

(8) "Environmental justice" means the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. This includes using an intersectional lens to address disproportionate environmental and health impacts in all laws, regulations, and policies with environmental impacts by prioritizing vulnerable populations and overburdened communities, equitably distributing resources and benefits, and eliminating harm.

(9) "Overburdened community" means a community designated by the council, with the assistance of the department of health, based on cumulative impact analyses of environmental harms upon vulnerable populations consistent with the definition of highly impacted community in RCW 19.405.020, and includes, but is not limited to, communities located in census tracts that are fully or partially on tribal lands, rural communities, and areas with a high concentration of members of a vulnerable population.

(10) "Significant agency action" means a decision, process, or activity that creates or has potential environmental impacts that may cause health or socioeconomic effects on overburdened communities or may disproportionately affect overburdened communities including, but not limited to, implementation of a statute, adoption or application of significant legislative rules, agency budgets, resource allocation, programmatic or project actions, or proposed legislation concerning duties of the agency.

(11) "Significant impact" means potential changes to critical determinants of health such as legal rights, finances, housing, and safety.

(12) "Tribal lands" has the same meaning as "Indian country" as provided in 18 U.S.C. Sec. 1151, and also includes sacred sites, traditional cultural properties, burial grounds, and other tribal sites protected by federal or state law.

(13) "Vulnerable populations" means communities that experience a disproportionate, cumulative risk from environmental harms due to: (a) Adverse socioeconomic factors, including unemployment, high housing and transportation costs relative to income, limited access to nutritious food and adequate health care, and linguistic isolation; (b) sensitivity factors, such as low birth weight and high rates of hospitalization; and (c) negative public health factors that increase vulnerability to the effects of environmental harms. "Vulnerable populations" include minority, low-income, tribal, or indigenous populations or geographic locations in Washington state that potentially experience disproportionate environmental harms and risks.

NEW SECTION.  Sec. 3. ENVIRONMENTAL JUSTICE OBLIGATIONS FOR ALL AGENCIES.All state agencies should strive to apply the laws of the state of Washington, and the rules and policies of the agency, in accordance with the policies of this act.

NEW SECTION.  Sec. 4. A new section is added to chapter 43.70 RCW to read as follows:

The department must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 5. A new section is added to chapter 43.21A RCW to read as follows:

The department must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 6. A new section is added to chapter 43.23 RCW to read as follows:

The department must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 7. A new section is added to chapter 43.30 RCW to read as follows:

The department must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 8. A new section is added to chapter 43.31 RCW to read as follows:

The department of commerce must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 9. A new section is added to chapter 47.01 RCW to read as follows:

The department must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 10. A new section is added to chapter 90.71 RCW to read as follows:

The partnership must apply and comply with the environmental justice obligations of section 3 of this act and the environmental justice analyses, community engagement, and public participation principles related to significant agency actions, implementation planning, tribal consultation, and reporting requirements of sections 13 through 18 of this act.

NEW SECTION.  Sec. 11. AUTHORITY OF OTHER AGENCIES TO OPT IN TO ENVIRONMENTAL JUSTICE OBLIGATIONS.Any state agency, as the term "agency" is defined in RCW 34.05.010, including the governor's office and the office of the attorney general, may opt in to assume the environmental justice obligations in sections 13 through 18 of this act by notifying the environmental justice council established in section 12 of this act.

NEW SECTION.  Sec. 12. ENVIRONMENTAL JUSTICE COUNCIL. (1) The environmental justice council is established. The council consists of 10 members representing the interests of community-based organizations. The governor must appoint members and serve four-year terms. The governor must initially appoint five members to serve two-year terms, after which all positions will have four-year terms.

(2) Nongovernmental members of the council must be compensated and reimbursed in accordance with RCW 43.03.050, 43.03.060, and 43.03.250.

(3) The council shall appoint an executive director who is the administrative head of the council.

(4) The department of health shall provide all administrative and staff support for the council. The council otherwise retains its independence in exercising its powers, functions, and duties and its supervisory control over nonadministrative staff support.

(5) The council has the following powers and duties:

(a) To adopt guidelines for agencies:

(i) Preparing environmental justice implementation plans pursuant to section 16 of this act;

(ii) Developing budgeting and funding criteria and making budgeting and funding decisions pursuant to section 17 of this act; and

(iii) Preparing and using environmental justice analyses pursuant to section 13 of this act;

(b) To provide technical assistance to support agency compliance with environmental justice analyses and enterprise equity implementation;

(c) To provide information, as appropriate, to community members, the ombuds, and members of the legislature, concerning agency compliance with the requirements of this act;

(d) To hold a portion of council meetings for the ombuds to jointly receive stakeholder input into the ombuds activities and priorities;

(e) To evaluate annually the performance of agencies in their preparation and adherence to their environmental justice implementation plans and in the preparation and use of environmental justice analyses;

(f) To make recommendations for additional legislation to further the environmental justice goals of the state;

(g) To review existing environmental laws and make recommendations for amendments that will further environmental justice;

(h) To recommend to specific agencies that they create environmental justice-focused agency-request legislation;

(i) To hold hearings and conduct other proceedings to receive relevant information from state agencies and the public to assist in performance of the duties described in (a) through (c) of this subsection; and

(j) To prepare and submit to the governor and legislature by November 1st of each year a report on the progress of the state and its agencies in meeting the state's environmental justice goals, progress in implementing this act, and summarizing the work of the council pursuant to (a) through (i) of this subsection.

NEW SECTION.  Sec. 13. ENVIRONMENTAL JUSTICE ANALYSES.(1) When considering the adoption of a significant agency action, an agency must conduct an environmental justice analysis as described in this section to better inform the agency in making its decision and to assist the agency with the equitable distribution of environmental investments, reduction of environmental harms, and the identification and reduction of racial and economic disparities.

(2) In conducting an environmental justice analysis, an agency must:

(a) Utilize cumulative impact analysis, such as the environmental health disparities map, in conjunction with other qualitative assessments and evaluation of other factors, including both environmental and socioeconomic stressors that may cumulatively affect health and the environment and contribute to persistent environmental health disparities;

(b) Identify overburdened communities and vulnerable populations that may be affected by the proposed action and the cumulative positive and negative impacts and how those impacts may be distributed across communities;

(c) Identify any local and regional impacts to tribal treaty reserved rights and resources;

(d) Summarize community input and describe how overburdened communities and affected tribes may be further involved in development of the proposed action; and

(e) Describe options for the agency to reduce the disproportionate impact on overburdened communities, or a reasonable justification for not doing so.

(3) To obtain information for purposes of this section, an agency may survey a representative sample of members from the overburdened community and should, whenever possible, consult with representatives of overburdened communities to assist in the accurate assessment of the impact of the action and in developing the means to reduce or eliminate the impact on overburdened communities.

(4) Based on the environmental justice analysis, the agency must reduce or eliminate the impacts imposed by the action on overburdened communities' vulnerable populations. The agency must consider, without limitation, each of the following methods for reducing such an impact:

(a) Eliminating disparities and the unequal effect of environmental harms on overburdened communities;

(b) Reducing or ensuring the action does not add to the cumulative impact on overburdened communities;

(c) Providing equitable participation and meaningful engagement of overburdened communities in the development of the agency action;

(d) Prioritizing equitable distribution of resources and benefits to overburdened communities;

(e) Ensuring positive workforce and job outcomes for overburdened communities;

(f) Meeting a community need identified by an overburdened community;

(g) Modifying substantive regulatory or policy requirements; and

(h) Any other mitigation techniques, including those suggested by the council, the office of equity, or representatives of overburdened communities and vulnerable populations.

(5) If the agency determines it cannot reduce the impact of the action on overburdened communities and vulnerable populations, the agency must provide a clear explanation of why it has made that determination, make that explanation part of the record of the decision, and provide notice of that explanation to members of the public who participated in the process.

(6) An agency may develop rules for criteria and procedures applicable to environmental justice analyses and its decisions based on those analyses.

NEW SECTION.  Sec. 14. EQUITABLE COMMUNITY ENGAGEMENT AND PUBLIC PARTICIPATION.An agency must adopt a community engagement plan to evaluate new and existing services and programs for equitable participation and to support meaningful and direct involvement of vulnerable populations and overburdened communities. The plan must include:

(1) Best practices for outreach and communication to overcome barriers to engagement that are typical of agency work and address and mitigate barriers to engagement from vulnerable populations, overburdened communities, and others historically or currently marginalized groups;

(2) Use of screening tools that integrate spatial, demographic, and health disparities data to evaluate and understand the nature and needs of the people who may be impacted by agency decisions, such as the environmental health disparities map, as well as further research with community members and organizations as needed;

(3) Processes to include members of the affected communities including, but not limited to, child care and other expenses; and

(4) Methods for outreach and communication with those who face barriers, language or otherwise, to participation.

NEW SECTION.  Sec. 15. TRIBAL CONSULTATION.An agency must consult with Indian tribes on all significant agency actions, programs, and distribution of state funds decisions that affect Indian tribes' rights and interests in their tribal lands. The consultation must occur pursuant to chapter 43.376 RCW and must be independent of and in addition to the equitable engagement and public participation processes required under section 14 of this act, or by an agency, and regardless of whether the agency receives a request for consultation from an Indian tribe. A consultation framework must be developed in coordination with tribal governments that includes best practices, protocols for communication, and collaboration with Indian tribes.

NEW SECTION.  Sec. 16. ENVIRONMENTAL JUSTICE IMPLEMENTATION PLANS.(1) Each agency shall by September 1, 2022, prepare and annually update an environmental justice implementation plan. The plan must provide a framework for applying the principles of environmental justice to the agency's activities and guide the agency in its implementation of its obligations under this act.

(2) The plan must include:

(a) Agency-specific goals and deliverables to reduce environmental health disparities and for otherwise achieving environmental justice in the agency's programs;

(b) Metrics to track and measure accomplishments of the agency goals and deliverables;

(c) Methods to equitably solicit and receive information and opinions from members of the public across Washington state;

(d) Strategies to ensure compliance with existing federal and state laws and policies relating to environmental justice, including Title VI of the Americans with disabilities act and other nondiscrimination requirements; and

(e) A plan for community engagement as described in section 14 of this act.

(3) In developing its plan, the agency must give substantial weight to the guidelines developed by the council pursuant to section 12 of this act.

NEW SECTION.  Sec. 17. ENVIRONMENTAL JUSTICE OBLIGATIONS OF AGENCIES RELATING TO BUDGETS AND FUNDING.(1) An agency must incorporate environmental justice principles into its decision processes for budget development, making investments, granting or withholding benefits, and distributing funding in order to direct funding and investments towards communities highly impacted by pollution and climate change.

(2) In making such decisions relating to budget development, making investments, granting or withholding benefits, and distributing funding, an agency must:

(a) Direct benefits to vulnerable populations and overburdened communities to reduce statewide disparities;

(b) Make investments proportional to the health disparities that a specific community experiences to eliminate the disparities;

(c) Focus investments on creating environmental benefits, including eliminating health burdens, creating community and population resilience, and raising the quality of life of those in the community;

(d) Ensure that investment priorities are self-determined by overburdened communities and vulnerable populations in the affected community through equitable participation;

(e) Ensure geographic, racial, and ethnic equity by balancing investments across the state and within counties, local jurisdictions, and unincorporated areas as appropriate to reduce disparities by location and to ensure efforts contribute to a reduction in disparities that exist based on race and ethnicity;

(f) Promote transparency by clearly articulating goals and assessment metrics to communicate where, why, and how funds are to be distributed;

(g) Consider a broad scope of grants so that funds may be applied to a variety of purposes, including grants, hiring, and contracting opportunities, including:

(i) Community grants to monitor pollution and grants focused on building capacity and training for community scientists and other staff;

(ii) Technical assistance for communities that may be new to receiving agency grant funding; and

(iii) Education and work-readiness youth programs focused on infrastructure or utility-related internships to develop career paths for youth and, eventually, community leaders; and

(h) Establish a goal of 40 percent and no less than 35 percent of investments that create environmental benefits directed to vulnerable populations in overburdened communities.

(3) An agency may develop rules for criteria and procedures applicable to incorporating environmental justice principles in investment decisions under this section.

NEW SECTION.  Sec. 18. REPORTING REQUIREMENTS.Each agency shall by September 1st of each year, in a format developed by the council, report to the council its progress on implementing its environmental justice implementation plan and its environmental justice analyses of proposed significant agency actions.

NEW SECTION.  Sec. 19. A new section is added to chapter 43.70 RCW to read as follows:

(1) In consultation with the environmental justice council established in section 12 of this act, the department of health must further develop and maintain the environmental health disparities map with the most current available information necessary to identify cumulative impacts and overburdened communities. The environmental health disparities map must include tools to:

(a) Visually display environmental disparities over time to track agency progress in an interactive, regularly updated dashboard; and

(b) Measure the link between environmental quality and human health, disaggregated by race.

(2) In further developing and maintaining the environmental health disparities map, the department must encourage participation by representatives from community organizations representing overburdened communities through community engagement and listening sessions in all regions of the state, and provide opportunities for public comment.

(3) The department may request assistance from:

(a) Academic researchers to perform modeling and create evidence-based indicators and with conducting sensitivity analyses to assess the impact of new indicators on communities and determination of an overburdened community; and

(b) Other state agencies to provide applicable environmental and sampling data for air, water, soil, and other applicable media.

(4) The department of health must, at least every three years, evaluate environmental harms and benefits, as well as socioeconomic indicators that may cumulatively impact health and the environment and contribute to persistent environmental health disparities for the most current modeling and methods when developing and updating the environmental health disparities map.

(5) The department of health must include in its reports required under section 18 of this act a summary of revisions to the environmental health disparities map and tools.

NEW SECTION.  Sec. 20. OMBUDS AUTHORIZATION.Subject to the availability of amounts appropriated for this specific purpose, there is created an office of environmental justice ombuds within the office of the governor for the purpose of: Providing information to overburdened communities and the council; promoting public awareness and understanding of environmental justice for overburdened communities; identifying system issues and responses for the governor and the legislature to act upon; and ensuring agency compliance with the provisions of this act.

The person appointed environmental justice ombuds in section 21 of this act reports directly to the governor and the council.

NEW SECTION.  Sec. 21. OMBUDS APPOINTMENT.(1) The governor shall appoint an environmental justice ombuds who must be a person of recognized judgment, independence, objectivity, and integrity, and be qualified by training or experience in environmental justice policies. Prior to the appointment, the governor shall consult with, and may receive recommendations from the council, appropriate committees of the legislature, representatives of overburdened communities, and other relevant stakeholders, regarding the selection of the ombuds.

(2) The person appointed environmental ombuds holds office for a term of three years and continues to hold office until reappointed or until their successor is appointed. The governor may remove the ombuds only for neglect of duty, misconduct, or the inability to perform duties. Any vacancy must be filled by similar appointment for the remainder of the unexpired term.

(3) The office of the governor shall provide all administrative and staff support for the office. The ombuds office has supervisory authority over the staff of the office and shall employ such personnel as are necessary to implement this chapter. Not more than two such employees may be exempt from chapter 41.06 RCW. The office shall otherwise retain its independence in exercising its powers, functions, and duties and its supervisory control over nonadministrative staff support.

NEW SECTION.  Sec. 22. OMBUDS DUTIES.(1) The environmental justice ombuds appointed in section 21 of this act shall:

(a) Establish priorities for use of the limited resources available to the ombuds;

(b) Maintain a statewide toll-free telephone number, a collect telephone number, a website, and a mailing address for the receipt of complaints and inquiries;

(c) Monitor agency compliance with environmental justice analyses and enterprise equity provisions of sections 13 through 18 of this act;

(d) Establish a statewide uniform reporting system to collect and analyze data related to complaints received by the ombuds regarding agencies;

(e) Establish procedures to receive, investigate, and resolve complaints;

(f) Establish procedures to gather stakeholder input into the ombuds' activities and priorities, including attending council meetings and other public meetings;

(g) Submit, by September 1st of each year, to the governor's office, the legislature, and the council, a report that includes, at a minimum, the following information:

(i) The budget and expenditures of the ombuds;

(ii) Agency compliance with environmental justice analyses and enterprise equity provisions of sections 13 through 18 of this act;

(iii) The number of complaints received and resolved by the ombuds;

(iv) A description of significant systemic or individual investigations or outcomes achieved by the ombuds during the prior year;

(v) Any outstanding or unresolved concerns or recommendations of the ombuds; and

(vi) Input and comments from stakeholders, including representatives of overburdened communities, regarding the ombuds' activities during the prior year; and

(h) Adopt and comply with rules, policies, and procedures necessary to implement this act.

(2)(a) The ombuds may initiate and attempt to resolve an investigation upon the ombuds' own initiative, or upon receipt of a complaint from a representative or member of an overburdened community, the council, or others, regarding any of the following that may create environmental harms or benefits for overburdened communities:

(i) Significant legislative rules;

(ii) Agency budgets, investments, or funding distribution;

(iii) Resource allocation;

(iv) Programmatic or project actions;

(v) Policies, rules, or procedures; or

(vi) Proposed legislation.

(b) The ombuds may not levy any fees for the submission or investigation of complaints.

(c) The ombuds must remain neutral and impartial and may not act as an advocate for the complainant or agencies.

(d) At the conclusion of an investigation of a complaint, the ombuds must render a public decision on the merits of each complaint. The ombuds must communicate the decision to the complainant and to the agency. The ombuds must state its recommendations and reasoning if, in the ombuds' opinion, the agency should:

(i) Consider the matter further;

(ii) Modify or cancel any action;

(iii) Alter a rule, practice, or ruling;

(iv) Explain in detail the administrative action in question; or

(v) Rectify an omission.

(e) If the ombuds so requests, the agency must, within the time specified, inform the ombuds about any action taken on the recommendations or the reasons for not complying with the recommendations.

(f) If the ombuds believes, based on the investigation, that there has been or continues to be significant noncompliance with the environmental justice analyses and enterprise equity requirements of sections 13 through 18 of this act, the ombuds must report the finding to the governor, the council, and the appropriate committees of the legislature.

(g) Before announcing a conclusion or recommendation that expressly, or by implication, criticizes a person or agency, the ombuds shall consult with that person or agency. The ombuds may request to be notified by the agency, within a specified time, of any action taken on any recommendation presented. The ombuds must notify the complainant of the actions taken by the agency in response to the ombuds' recommendations.

NEW SECTION.  Sec. 23. OMBUDS ACCESS TO AGENCIES.(1) The environmental justice ombuds appointed in section 21 of this act must have reasonable access to agency facilities at all times necessary to conduct a full investigation. This authority includes the opportunity to interview an agency employee who might be reasonably believed to have knowledge of the matter under investigation. This access must be afforded, upon request by the ombuds, when:

(a) A complaint is made to the ombuds; or

(b) The ombuds determines there is cause to believe that an agency has failed to comply with the environmental justice and enterprise equity requirements of sections 13 through 18 of this act.

(2) The ombuds has the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the agency that the ombuds considers necessary in an investigation of a complaint filed under this act, and the agency must assist the ombuds in obtaining the necessary releases for those documents that are specifically restricted or privileged for use by the ombuds.

(3) Following notification from the ombuds with a written demand for access to agency records, the delegated agency staff must provide the ombuds with access to the requested documentation no later than 20 business days after the ombuds' written request for the records.

NEW SECTION.  Sec. 24. AGENCY EMPLOYEE WHISTLEBLOWER PROTECTION.No discriminatory, disciplinary, or retaliatory action may be taken against an agency employee for any communication made, or information given or disclosed, to aid the office of environmental justice ombuds created in section 20 of his act in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.

--- END ---