Refocusing the Minnesota Environmental Policy Act through an environmental justice lens
By Michael Damasco
As the Minnesota Environmental Policy Act (MEPA) turns 50 this year, it’s an opportune time to reexamine its place in a world increasingly invested in environmental justice. MEPA, Minnesota’s environmental review statute, is an information-gathering tool used to determine the environmental impacts of development projects. Highly publicized environmental justice battles, such as the Dakota Access Pipeline protest, have galvanized the public and contributed to new interest in environmental justice-focused legislation.
MEPA is much older than this recent legislation, but can it still be just as effective? The fact is that MEPA already provides some of the tools necessary for Minnesota to actively tackle environmental justice issues. The statute only needs to be refocused, not rewritten. MEPA is broad enough to incorporate many of the concerns presented by environmental justice advocates and it is time for those working with the law (state agencies, local governments, project proposers, and advocates) to address in their environmental review the social and economic impacts and disparities that MEPA has long required.
The purpose of this article is first to look at what environmental justice is and how it has been applied in Minnesota’s environmental review process. It will further analyze how other environmental review statutes incorporate environmental justice and then discuss where MEPA implementation falls short and how to fill in the gaps.
What is environmental justice?
Environmental justice is a broad term that means different things to different people. To focus the discussion, we will use the Minnesota Pollution Control Agency’s (MPCA) definition of environmental justice. The MPCA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income. In general, EJ is intended to ensure that all people benefit from equal levels of environmental protection and have the same opportunities to participate in decisions that may affect their environment or health.”1
Inadequate access to clean water and healthy food, and the unequal burden of air pollution, are examples that help to illustrate environmental justice issues. Environmental justice is at the root of widely reported crises such as the Dakota Access Pipeline and the Flint, Michigan drinking water disaster. The Dakota Access Pipeline saw an oil pipeline plan being constructed directly through the Standing Rock Indian Reservation’s water supply—after being moved from its original site due to proximity to municipal water sources and residential areas. The Flint crisis saw the water supply of a historically Black city contaminated with lead in a cost-saving measure.2
What is Minnesota doing?
Enacted in 1973, the Minnesota Environmental Policy Act (MEPA) was intended to “encourage productive and enjoyable harmony between human beings and their environment; to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of human beings; and to enrich the understanding of the ecological systems and natural resources important to the state and to the nation.”3
MEPA requires state agencies to consider the impact of government actions on the environment, by using “all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which human beings and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of the state’s people.”4 The phrase “all practicable means and measures” has resulted in rules mandating the completion of an environmental assessment worksheets (EAW) and in some cases, an environmental impact statement (EIS). An EAW is a brief fact-gathering document that is used to determine whether a full environmental review, in the form of an EIS, is needed.5
The purpose of an EIS is to provide detailed information about a project that has potential for significant environmental effects and to explore alternatives as well as ways to mitigate the likely environmental impacts of the project. An EIS must analyze environmental, “economic, employment, and sociological effects that cannot be avoided should the action be implemented.”6
The analysis is multi-pronged, requiring a discussion of potential effects, “be they direct, indirect, or cumulative.”7 Cumulative impacts are defined as “the impact on the environment that results from incremental effects of the project in addition to other past, present, and reasonably foreseeable future projects regardless of what person undertakes the other projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.”8
Neither MEPA nor its implementing rules uses the phrase “environmental justice analysis” in describing what is required as part of the review process. In part, this is because MEPA was enacted in the early 1970s and the environmental justice movement did not start until the late ‘80s. But the same environmental justice ideals are still present in MEPA. For example, MEPA instructs agencies and project proposers to study the “economic, employment, and sociological effects”9 of their decisions before they make them. Unfortunately, environmental review has historically glossed over “socio-economic” impacts in favor of more traditional “environmental “analyses.” One reason the environmental review process has failed to adequately analyze environmental justice issues on a consistent basis is because of the Environmental Quality Board’s (EQB) guidance for EAWs. EQB’s guidance directs the preparers of EAWs to limit their analysis to specific issues and fails to mention environmental justice as required. EAWs neglect environmental justice, but there are EISs that we can look to that do assess environmental justice issues.
Enbridge Line 3 pipeline replacement project
Minnesota’s environmental review for the Enbridge Line 3 pipeline replacement project is an example of a thorough environmental justice analysis completed under MEPA. The purpose of the project was to replace old pipelines with new, larger pipelines that would carry heavier oil and larger quantities of it. The project saw the construction of 330 miles of new 36-inch-diameter pipeline to replace 282 miles of the existing 34-inch pipeline in Minnesota.10
The Minnesota Department of Commerce drafted the EIS for the project. The EIS was extensive and included a separate environmental justice analysis. The Department of Commerce’s analysis focused on who was affected and what those impacts looked like. Here, tribal communities were disproportionately and adversely impacted. Worth noting is the discussion around the disproportionate harm and the history of tribal relations. For example, the Department of Commerce states that these communities have “historically been burdened by pipelines and other projects resulting in adverse impact;” and that they “typically lack resources, opportunity, mobility, and the power to influence decisions that affect the environment and their health.” Additionally, the EIS touched on the way these resources mean something unique to this community as compared to the general population. (For example, the EIS highlights how water is not only a health issue for this community, but a spiritual and religious issue as well.)
Despite the project’s impacts as detailed in the EIS and the thorough analysis of the project’s potential environmental justice impacts, the Enbridge Line 3 replacement project was still approved and built. It is understandable for environmental justice advocates to be disappointed in this outcome and to question the role of MEPA in the environmental justice review process when problematic projects still get approved. Environmental review, in itself, isn’t meant to block projects but to provide a means of gathering thorough information to let decisionmakers know the real consequences of their decision before they make it.11
Environmental review primarily serves as an information-gathering tool. But it still serves two important purposes. First, gathering all this information into one place is valuable. This is part of the process, and if we are to have better outcomes, then we need adequate review. Second, it allows for public participation. Public participation is part of the bedrock of the environmental justice movement. No one understands a community better than the people who live in it. We should strive for thorough environmental justice review despite its not always resulting in the preferred outcome.
The Enbridge Line 3 replacement project’s level of environmental justice analysis is the expectation but not the norm. Rarely does an EIS include an explicit environmental justice analysis, but this project serves as a reminder that a relatively thorough analysis is possible under our current environmental review statutes and rules.
NEPA and other states
It’s clear that Minnesota has tools at its disposal to advocate for environmental justice issues, but there are still more lessons to be learned from both the federal government and other states. The National Environmental Policy Act (NEPA),12 which governs federal environmental review, was used as a model for MEPA. NEPA requires that federal agencies assess the environmental impacts of a proposed action prior to making a decision. As in the case of MEPA, NEPA review is a two-step process: First an environmental assessment is prepared, then a more detailed environmental impact statement is completed when necessary. NEPA requires an analysis of three types of impacts: direct, indirect, and cumulative.
While NEPA, like MEPA, does not explicitly mention environmental justice, the U.S. Environmental Protection Agency (EPA) does provide guidance on how to incorporate environmental justice analysis into the review process. For example, Promising Practices for EJ Methodologies in NEPA Reviews13 outlines guiding principles on two important topics—how to define an affected environment and how to provide for effective impact analysis.
The guidance encourages agencies to embrace a broader definition of environment to effectively account for environmental justice issues. Conditions to be considered include “ecological, aesthetic, historic, cultural, economic, social, [and] health.” After considering these conditions, agencies can consider how “the extent of the affected environment may be larger (or smaller) and differently shaped than the boundaries would have been drawn without the existence of [these] conditions.”
In cumulative impact analysis, the guidance describes cumulative impacts as the “incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” When assessing cumulative impacts, the guidance directs agencies to be mindful that minority and low-income populations may be differently affected by these impacts compared to the general population and that “in some circumstances, [agencies should] consider (among other existing conditions) chemical and non-chemical stressors that could potentially amplify impacts from the proposed action to the health of minority populations and low-income populations.” Examples of non-chemical stressors include “health status” (for example, pre-existing health conditions) and past exposure histories as well as social factors such as community property values, sources of income, level of income, and standard of living. While this is only guidance—and therefore not binding—it does provide an example of how current statutes can be interpreted to better encompass environmental justice ideas.
The Minnesota Legislature modeled MEPA after NEPA and because of this, Minnesota courts are guided by NEPA case law.14 NEPA requires a “hard look” analysis of environmental justice implications of a proposed project.15 NEPA requires that potential environmental justice populations be identified and impacts be properly analyzed.16 Additionally, to satisfy environmental justice responsibilities under NEPA, an analysis that states a population would not be disproportionately impacted must be reasonably supported.17 “Reasonably supported” means looking at a wide range of factors. In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, a federal district court found in 2017 that an EIS’s environmental justice analysis was inadequate because while it managed to identify an environmental justice community, it failed to adequately analyze multiple issues raised, offering only “bare-bones” conclusory statements that no further discussion was needed.18 Specifically, the court found the environmental justice analysis lacking because it only looked at construction impacts and failed to look at spill impacts. And both cultural and economic factors are different for the tribal community, thereby amplifying the prospective negative impacts of an oil spill.
Many other states have their own MEPA-like statutes, some of which have been interpreted to require environmental justice analysis. For example, California’s mini-NEPA, known as CEQA, requires an analysis of both social and economic factors, but these factors alone are not sufficient to trigger CEQA review.19 Social and economic factors are only analyzed in connection with direct environmental impacts. The extent of environmental impacts is quite broad, however. For example, the construction of a new shopping center, which pulled customers away from small businesses downtown, resulting in urban decay, was seen as an environmental impact that required CEQA analysis.20 In New York, a significant impact on the characteristics of a community or neighborhood is enough to trigger environmental review.21 Impacts to the characteristics of a community can include displacement and gentrification. These environmental review statutes can be used as a guide on how we can better interpret MEPA.
Recommendations
MEPA already allows for environmental justice analysis; it is just a matter of ensuring that those who are responsible for implementing the statute—governments and project proposers—complete the required analysis in a manner that is thorough and effective. There are three ways this can be achieved: implementing the environmental justice analysis from the beginning of the environmental review process, aligning MEPA implementation with NEPA and other states, and ensuring that agencies are held to the “hard look” standard required under current case law.
First, environmental justice needs to be part of the process from the very beginning. We have seen a thorough environmental justice analysis done as part of an EIS, but only a few projects even reach that level of review. Most projects only require an EAW and nothing more. According to the EQB, between 2018 and 2020, only 2 percent of environmental review was for an EIS, while 74 percent of environmental review was for an EAW.22 To be more effective, we should strive for two things as part of the EAW process: (1) require the identification of potentially affected environmental justice communities and (2) identify potential impacts to these communities. An EIS can go further in quantifying and fully analyzing these impacts, but, at minimum, the identification should occur as part of the EAW process.
Second, state agencies and local governments must begin to heed MEPA’s statutory language, which requires analysis of “economic, employment and sociological” impacts. Federal law provides helpful assistance on how to do this. NEPA guidance suggests that a full understanding of the environment includes conditions such as the economic, social, aesthetic, and social aspects of a project’s impacts. And NEPA suggests that the addition of nonchemical stressors as part of the cumulative impact analysis should typically be required. To effectively analyze environmental justice concerns, MEPA review should adopt a similar approach. Additionally, we can look to how other states advocate for environmental justice. California and New York teach us that there is room to interpret MEPA to be more inclusive of environmental justice. Both states take a holistic approach, allowing more factors to be considered at an earlier stage of the review process. Minnesota courts should afford MEPA the same degree of scope and interpret MEPA to include urban decay, gentrification, and community characteristics as part of the environmental review process.
Third, for environmental justice review to be effective, it should be held to the “hard look” standard required under current case law.23 But too often EISs under MEPA dedicate only a paragraph or less to environmental justice analysis and include conclusory statements claiming that no environmental justice analysis is needed. A thorough review should include the metrics that agencies looked at in determining whether any environmental justice communities were impacted; an analysis of the social, occupational, historical, or economic factors of a community that may make any environmental impact more severe; and the impact to cultural resources.
Minnesota was ahead of the curve when MEPA was first established, and the law continues to be a useful tool for environmental justice advocates. But this does not mean that there is not room for improvement. With these recommendations, we can ensure that Minnesota becomes a model of proper environmental justice implementation in the Midwest.
MICHAEL DAMASCO is a former legal fellow at the Minnesota Center for Environmental Advocacy. He currently practices environmental law in California.
Notes
1 It is worth noting that this definition fails to consider the historical pollution burdens certain communities have had to endure. Any discussion of environmental justice should not only focus on ensuring environmental protections and meaningful involvement moving forward but also an acknowledgment and remediation of past harms.
2 Merit Kennedy, Lead-Laced Water in Flint: A Step-By-Step Look at The Makings Of A Crisis, NPR, 4/20/2016.
3 Minn. Stat. Ann. §116D.01
4 Minn. Stat. Ann. §116D.02
5 Minn. Stat. §116D.04, subd. 1a(c)
6 Minn. Stat. §116D.04, subd. 2a(a)
7 Minn. R. 4410.2300(H)
8 Minn. R. 4410.0200, subp. 11
9 Minn. Stat. §116D.04, subd. 2a(a)
10 https://www.enbridge.com/projects-and-infrastructure/public-awareness/minnesota-projects/line-3-replacement-project#projectdetails:project-scope
11 In certain instances, some projects may be blocked under Minn. Stat. Ann. §116D.01 subd. 6.
12 42 U.S.C. §§4321
13 https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf
14 No Power Line, Inc. v. Minnesota Environmental Quality Council, 262 N.W.2d 312, 323-27 (Minn. 1977).
15 Under NEPA the “hard look” standard requires that agencies ensure that “the adverse environmental effects of the proposed action are adequately identified and evaluated.” In evaluating the significance of a proposed action’s impact, an agency is to consider, inter alia, the effect on “public health or safety”; “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources”; the extent to which the environmental effects “are likely to be highly controversial” or “are highly uncertain or involve unique or unknown risks”; “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts”; and the degree to which the action “may cause loss or destruction of significant... cultural[ ] or historical resources.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 123 (D.D.C. 2017).
16 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 140 (D.D.C. 2017).
17 Id.
18 Id.
19 Cal. Code Regs. tit. 14 §15064(e).
20 Bakersfield Citizens for Loc. Control v. City of Bakersfield, 124 Cal. App. 4th 1184, 1193, 22 Cal. Rptr. 3d 203, 220 (2004)
21 6 NYCCR §617.7
22 Environmental Quality Board, Mandatory Environmental Review Categories – Legislative Assessment Report. at p. 14 (2021). https://www.eqb.state.mn.us/sites/default/files/documents/EQB%202021%20Mandatory%20Category%20Report%20-%20FINAL.pdf
23 Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006).