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Environmental Justice at the Local and Regional Level – Legal Background

download the PDF: Environmental Justice

KAMALA D. HARRIS
Attorney General

State of California
DEPARTMENT OF JUSTICE

Environmental Justice at the Local and Regional Level
Legal Background

Cities, counties, and other local governmental entities have an important role to play in ensuring
environmental justice for all of California’s residents. Under state law:

“[E]nvironmental justice” means the fair treatment of people of all races, cultures,
and incomes with respect to the development, adoption, implementation, and
enforcement of environmental laws, regulations, and policies.

(Gov. Code, § 65040.12, subd. (e).) Fairness in this context means that the benefits of a healthy
environment should be available to everyone, and the burdens of pollution should not be focused
on sensitive populations or on communities that already are experiencing its adverse effects.

Many local governments recognize the advantages of environmental justice; these include
healthier children, fewer school days lost to illness and asthma, a more productive workforce,
and a cleaner and more sustainable environment. Environmental justice cannot be achieved,
however, simply by adopting generalized policies and goals. Instead, environmental justice
requires an ongoing commitment to identifying existing and potential problems, and to finding
and applying solutions, both in approving specific projects and planning for future development.

There are a number of state laws and programs relating to environmental justice. This document
explains two sources of environmental justice-related responsibilities for local governments,
which are contained in the Government Code and in the California Environmental Quality Act
(CEQA).

Government Code

Government Code section 11135, subdivision (a) provides in relevant part:

No person in the State of California shall, on the basis of race, national origin,
ethnic group identification, religion, age, sex, sexual orientation, color, or
disability, be unlawfully denied full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any program or activity that is
conducted, operated, or administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from the state….

While this provision does not include the words “environmental justice,” in certain
circumstances, it can require local agencies to undertake the same consideration of fairness in the
distribution of environmental benefits and burdens discussed above. Where, for example, a
general plan update is funded by or receives financial assistance from the state or a state agency,
the local government should take special care to ensure that the plan’s goals, objectives, policies
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and implementation measures (a) foster equal access to a clean environment and public health
benefits (such as parks, sidewalks, and public transportation); and (b) do not result in the
unmitigated concentration of polluting activities near communities that fall into the categories
defined in Government Code section 11135. 1 In addition, in formulating its public outreach for
the general plan update, the local agency should evaluate whether regulations governing equal
“opportunity to participate” and requiring “alternative communication services” (e.g.,
translations) apply. (See Cal. Code Regs., tit. 22, §§ 98101, 98211.)

Government Code section 11136 provides for an administrative hearing by a state agency to
decide whether a violation of Government Code section 11135 has occurred. If the state agency
determines that the local government has violated the statute, it is required to take action to
“curtail” state funding in whole or in part to the local agency. (Gov. Code, § 11137.) In
addition, a civil action may be brought in state court to enforce section 11135. (Gov. Code, §
11139.)

California Environmental Quality Act (CEQA)

Under CEQA, “public agencies should not approve projects as proposed if there are feasible
alternatives or feasible mitigation measures available which would substantially lessen the
significant environmental effects of such projects ….” (Pub. Res. Code, § 21002.) Human
beings are an integral part of the “environment.” An agency is required to find that a “project
may have a ‘significant effect on the environment’” if, among other things, “[t]he environmental
effects of a project will cause substantial adverse effects on human beings, either directly or
indirectly[.]” (Pub. Res. Code, § 21083, subd. (b)(3); see also CEQA Guidelines, 2 § 15126.2
[noting that a project may cause a significant effect by bringing people to hazards].)

CEQA does not use the terms “fair treatment” or “environmental justice.” Rather, CEQA centers
on whether a project may have a significant effect on the physical environment. Still, as set out
below, by following well-established CEQA principles, local governments can further
environmental justice.

CEQA’s Purposes
The importance of a healthy environment for all of California’s residents is reflected in CEQA’s
purposes. In passing CEQA, the Legislature determined:

• “The maintenance of a quality environment for the people of this state now and in the
future is a matter of statewide concern.” (Pub. Res. Code, § 21000, subd. (a).)

• We must “identify any critical thresholds for the health and safety of the people of the
state and take all coordinated actions necessary to prevent such thresholds from being
reached.” (Id. at subd. (d).)

1 To support a finding that such concentration will not occur, the local government likely will
need to identity candidate communities and assess their current burdens.
2 The CEQA Guidelines (Cal. Code Regs., tit. 14, §§ 15000, et seq.) are available at
http://ceres.ca.gov/ceqa/.


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“[M]ajor consideration [must be] given to preventing environmental damage, while
providing a decent home and satisfying living environment for every Californian.” (Id. at
subd. (g).)

We must “[t]ake all action necessary to provide the people of this state with clean air and
water, enjoyment of aesthetic, natural, scenic, and historic environmental qualities, and
freedom from excessive noise.” (Pub. Res. Code, § 21001, subd. (b).)

Specific provisions of CEQA and its Guidelines require that local lead agencies consider how the
environmental and public health burdens of a project might specially affect certain communities.
Several examples follow.

Environmental Setting and Cumulative Impacts

There are a number of different types of projects that have the potential to cause physical impacts
to low-income communities and communities of color. One example is a project that will emit
pollution. Where a project will cause pollution, the relevant question under CEQA is whether
the environmental effect of the pollution is significant. In making this determination, two long-
standing CEQA considerations that may relate to environmental justice are relevant – setting and
cumulative impacts.

It is well established that “[t]he significance of an activity depends upon the setting.” (Kings
County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 718 [citing CEQA
Guidelines, § 15064, subd. (b)]; see also id. at 721; CEQA Guidelines, § 15300.2, subd. (a)
[noting that availability of listed CEQA exceptions “are qualified by consideration of where the
project is to be located – a project that is ordinarily insignificant in its impact on the environment
may in a particularly sensitive environment be significant.”]) For example, a proposed project’s
particulate emissions might not be significant if the project will be located far from populated
areas, but may be significant if the project will be located in the air shed of a community whose
residents may be particularly sensitive to this type of pollution, or already are experiencing
higher-than-average asthma rates. A lead agency therefore should take special care to determine
whether the project will expose “sensitive receptors” to pollution (see, e.g., CEQA Guidelines,
App. G); if it will, the impacts of that pollution are more likely to be significant. 3

In addition, CEQA requires a lead agency to consider whether a project’s effects, while they
might appear limited on their own, are “cumulatively considerable” and therefore significant.
(Pub. Res. Code, § 21083, subd. (b)(3).) “‘[C]umulatively considerable’ means that the
incremental effects of an individual project are considerable when viewed in connection with the
effects of past projects, the effects of other current projects, and the effects of probable future

3 “[A] number of studies have reported increased sensitivity to pollution, for communities with
low income levels, low education levels, and other biological and social factors. This
combination of multiple pollutants and increased sensitivity in these communities can result in a
higher cumulative pollution impact.” Office of Environmental Health Hazard Assessment,
Cumulative Impacts: Building a Scientific Foundation (Dec. 2010), Exec. Summary, p. ix,
available at http://oehha.ca.gov/ej/cipa123110.html.
projects.” (Id.) This requires a local lead agency to determine whether pollution from a
proposed project will have significant effects on any nearby communities, when considered
together with any pollution burdens those communities already are bearing, or may bear from
probable future projects. Accordingly, the fact that an area already is polluted makes it more
likely that any additional, unmitigated pollution will be significant. Where there already is a high
pollution burden on a community, the “relevant question” is “whether any additional amount” of
pollution “should be considered significant in light of the serious nature” of the existing problem.
(Hanford, supra, 221 Cal.App.3d at 661; see also Los Angeles Unified School Dist. v. City of Los
Angeles (1997) 58 Cal.App.4th 1019, 1025 [holding that “the relevant issue … is not the relative
amount of traffic noise resulting from the project when compared to existing traffic noise, but
whether any additional amount of traffic noise should be considered significant in light of the
serious nature of the traffic noise problem already existing around the schools.”])

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The Role of Social and Economic Impacts Under CEQA
Although CEQA focuses on impacts to the physical environment, economic and social effects
may be relevant in determining significance under CEQA in two ways. (See CEQA Guidelines,
§§ 15064, subd. (e), 15131.) First, as the CEQA Guidelines note, social or economic impacts
may lead to physical changes to the environment that are significant. (Id. at §§ 15064, subd. (e),
15131, subd. (a).) To illustrate, if a proposed development project may cause economic harm to
a community’s existing businesses, and if that could in turn “result in business closures and
physical deterioration” of that community, then the agency “should consider these problems to
the extent that potential is demonstrated to be an indirect environmental effect of the proposed
project.” (See Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433,
446.)

Second, the economic and social effects of a physical change to the environment may be
considered in determining whether that physical change is significant. (Id. at §§ 15064, subd.
(e), 15131, subd. (b).) The CEQA Guidelines illustrate: “For example, if the construction of a
new freeway or rail line divides an existing community, the construction would be the physical
change, but the social effect on the community would be the basis for determining that the effect
would be significant.” (Id. at § 15131, subd. (b); see also id. at § 15382 [“A social or economic
change related to a physical change may be considered in determining whether the physical
change is significant.”])

Alternatives and Mitigation
CEQA’s “substantive mandate” prohibits agencies from approving projects with significant
environmental effects if there are feasible alternatives or mitigation measures that would
substantially lessen or avoid those effects. (Mountain Lion Foundation v. Fish and Game
Commission (1997) 16 Cal.4th 105, 134.) Where a local agency has determined that a project
may cause significant impacts to a particular community or sensitive subgroup, the alternative
and mitigation analyses should address ways to reduce or eliminate the project’s impacts to that
community or subgroup. (See CEQA Guidelines, § 15041, subd. (a) [noting need for “nexus”
between required changes and project’s impacts].)

Depending on the circumstances of the project, the local agency may be required to consider
alternative project locations (see Laurel Heights Improvement Assn. v. Regents of University of

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California (1988) 47 Cal.3d 376, 404) or alternative project designs (see Citizens of Goleta
Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1183) that could reduce or
eliminate the effects of the project on the affected community.

The lead agency should discuss and develop mitigation in a process that is accessible to the
public and the affected community. “Fundamentally, the development of mitigation measures,
as envisioned by CEQA, is not meant to be a bilateral negotiation between a project proponent
and the lead agency after project approval; but rather, an open process that also involves other
interested agencies and the public.” (Communities for a Better Environment v. City of Richmond
(2010) 184 Cal.App.4th 70, 93.) Further, “[m]itigation measures must be fully enforceable
through permit conditions, agreements, or other legally binding instruments.” (CEQA
Guidelines, § 15126.4, subd. (a)(2).)

As part of the enforcement process, “[i]n order to ensure that the mitigation measures and
project revisions identified in the EIR or negative declaration are implemented,” the local agency
must also adopt a program for mitigation monitoring or reporting. (CEQA Guidelines, § 15097,
subd. (a).) “The purpose of these [monitoring and reporting] requirements is to ensure that
feasible mitigation measures will actually be implemented as a condition of development, and
not merely adopted and then neglected or disregarded.” (Federation of Hillside and Canyon
Assns. v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261.) Where a local agency adopts a
monitoring or reporting program related to the mitigation of impacts to a particular community
or sensitive subgroup, its monitoring and reporting necessarily should focus on data from that
community or subgroup.

Transparency in Statements of Overriding Consideration

Under CEQA, a local government is charged with the important task of “determining whether
and how a project should be approved,” and must exercise its own best judgment to “balance a
variety of public objectives, including economic, environmental, and social factors and in
particular the goal of providing a decent home and satisfying living environment for every
Californian.” (CEQA Guidelines, § 15021, subd. (d).) A local agency has discretion to approve
a project even where, after application of all feasible mitigation, the project will have
unavoidable adverse environmental impacts. (Id. at § 15093.) When the agency does so,
however, it must be clear and transparent about the balance it has struck.

To satisfy CEQA’s public information and informed decision making purposes, in making a
statement of overriding considerations, the agency should clearly state not only the “specific
economic, legal, social, technological, or other benefits, including region-wide or statewide
environmental benefits” that, in its view, warrant approval of the project, but also the project’s
“unavoidable adverse environmental effects[.]” (Id. at subd. (a).) If, for example, the benefits of
the project will be enjoyed widely, but the environmental burdens of a project will be felt
particularly by the neighboring communities, this should be set out plainly in the statement of
overriding considerations.

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* * * *
The Attorney General’s Office appreciates the leadership role that local governments have
played, and will continue to play, in ensuring that environmental justice is achieved for all of
California’s residents. Additional information about environmental justice may be found on the
Attorney General’s website at http://oag.ca.gov/environment.

New Yorker Article on Asset Forfeiture – “Taken”

Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?

http://www.newyorker.com/magazine/2013/08/12/taken

 

Take Action on Asset Forfeiture

From: Grant Smith – Drug Policy Alliance <action@em.drugpolicy.org>

For decades, law enforcement agencies have taken advantage of federal asset forfeiture laws — enacted during the height of drug war hysteria in the 1980s — to seize cash, cars, and other property from unsuspecting people without even charging them with a crime.

And then what do they do with the cash and property they seize? They keep it for themselves.

If anyone else did this we would call it highway robbery, but thanks to laws meant to fight the war on drugs, it’s all technically legal.

A vast majority of Americans want Congress to end this brutish practice, and now momentum is mounting for bipartisan reform. But it’s pivotal that we enact real reform — no one should have their property seized unless they are convicted of a crime in a court of law.

Please urge your representatives to end policing for profit today!

Law enforcement officials nationwide have taken in $2.5 billion from nearly 62,000 cash seizures under the federal civil forfeiture program since 2001.

And who do they target the most? Those unable to afford a lawyer to fight back.

This must end now. The government should not be able to seize property without a criminal conviction.

Sincerely,

Grant Smith
Deputy Director, National Affairs
Drug Policy Alliance

Take Action

The Right To Record Police

Two Court Affirmations

by REBECCA K. SMITH

Last week, federal courts issued two decisions affirming the right of citizens to record police under the First Amendment. In Atlanta, a court held the police department in contempt of court for violating a prior court order to allow citizens to record police. In New York, a court held that recording police is a “clearly established right” under the U.S. Constitution, and that if a police officer violates that right, he or she can be sued in federal court.

First, in Anderson v. Atlanta, the court addressed a prior court order that had ordered the Atlanta police to implement reforms to their training policies and conduct mandatory in-person training for all officers regarding those reforms. In part, the new required policy states: “All employees shall be prohibited from interfering with a citizen’s right to record police activity by photographic, video, or audio means. This prohibition is in effect only as long as the recording by the citizen does not physically interfere with the performance of an officer’s duties.” An officer’s violation of this policy would result in dismissal.

In the court’s contempt order, it found that the Atlanta police had not made the required changes to its policy, and therefore had also failed to implement and enforce the required changes. The court held the Atlanta police in contempt of court, imposed sanctions, and awarded the plaintiff $30,000 in attorney fees for litigating the contempt motion. The court gave the police 45 days to comply with its order. The court stated that after the 45 days expired the court would impose a fine of $10,000 per day.

Second, in Higginbotham v. New York, the court addressed a lawsuit alleging that a journalist covering the Occupy Wall Street protests was falsely arrested and preventing from exercising his First Amendment rights. In 2011, the plaintiff had been working as a freelance video-journalist covering an Occupy Wall Street protest. The plaintiff had climbed on top of a phone booth to record a nearby arrest. A police officer ordered him to climb down but he did not immediately comply because there were too many people surrounding him. When he did begin to climb down, officers grabbed his legs, he dropped his camera, and he fell to the ground. The officers placed him in handcuffs and held him in custody for four hours before releasing him. He was charged with disorderly conduct, but the charge was later dismissed.

In the case, the court rejected the officers’ motion to dismiss the complaint. The court held that the complaint raised a plausible claim of false arrest. The court further held that the complaint raised a plausible claim that the plaintiff was arrested in retaliation for attempting to exercise First Amendment rights.   The court noted that “[a]ll of the circuit courts that have [addressed the issue] have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.” After discussing the important goals of prohibiting government censorship and promoting free discussion of government affairs, the court held that “[t]he videotaping of police officers in the performance of their duties in public plainly furthers these First Amendment goals.” The court further held that “[v]ideotaping from a reasonable distance is arguably less of a hindrance to legitimate police activity than the verbal challenges [to police officers] that the First Amendment unquestionably protects.”

Rebecca K. Smith is Board Secretary and Cooperating Attorney at the Civil Liberties Defense Center.

 

 

Janelle Egger vs. Humboldt County BOS, RE Brown Act violations

1. Table of contents, Petition, Demurrer, Opp, Reply

2. Egger Petition For Writ of Mandate

3. Demurrer P&A

4. Egger Opposition 2014_1_20

5. Reply in support of Demurrer

6. Egger Opp to Reply 2015_02_10

Humboldt County Grand Jury Final Report 2013-2014

http://lostcoastoutpost.com/media/uploads/post/10842/2013-2014%2BGrand%2BJury%2BFinal%2BReport_201408061317455060.pdf

Tom Sebourn Blog: The Humboldt Civil Liberties Defense Fund Endorses DA Candidate Elan Firpo

Press Release:

The Humboldt Civil Liberties Defense Fund (HCLDF) enthusiastically endorses Élan Firpo for District Attorney. The HCLDF is committed to the protection of civil liberties for all residents of Humboldt County and feels that Ms. Firpo is the candidate that would best protect those liberties guaranteed in our State and Federal Constitutions.

The HCLDF was founded in 2011 and is made up both conservatives and liberals. While the membership may differ on matters of legislation, we are united in our unwavering defense of civil liberties because we believe them to be the cornerstone of our democracy.

The office of District Attorney plays an unparalleled role in both the protection and violation of our cherished liberties. Few public officials hold such power to take away one’s freedom as a prosecutor does. We urge all citizens who share our concern for protection of the freedoms we hold so dear to join us in working to elect Élan Firpo as Humboldt County’s District Attorney.

For more information or to offer your support to the Defense Fund go to http://www.hcldf.org or visit us on Facebook: http://www.facebook.com/groups/hcldf/

via Tom Sebourn Blog: The Humboldt Civil Liberties Defense Fund Endorses DA Candidate Elan Firpo.