Advancing Equity and Public Access to Decision-Making
Chandra Farley, ReSolve Consulting, and Camille Kadoch, RAP
This section on equity and access is included with this building modernization toolkit; these provisions, however, will enhance any policy enacted in a state by increasing meaningful participation in any state agency process.
The United States is a representative democracy, where citizens elect government officials who then represent the citizens’ ideas and concerns in government.1 While federal decisions made in Washington, D.C., have important implications for our lives, the decisions made at the state level have impacts on our day-to-day lives that are just as important, if not larger.2 State and local governments also enact laws and regulations ranging from labor market rules and tax policy to environmental regulations and zoning rules, and policymakers’ decisions about how to allocate resources have huge impacts on education, transportation or other public goods.3
Public input into decision-making is a critical component of our democracy. Data from Arizona State University indicates that a wide variety of individuals and groups participate in state and local government decision-making (see Figure 1).4
Figure 1. Frequency of participation in decision-making, by group
Source: Zhang, F. (n.d.). Citizen Participation in U.S. Local Governments
Studies indicate, however, that not all segments of the public participate in these critical decisions. In particular, overburdened communitiesoverburdened communities “Minority, low-income, tribal, or indigenous populations or geographic locations in the United States that potentially experience disproportionate environmental harms and risks. This disproportionality can be as a result of greater vulnerability to environmental hazards, lack of opportunity for public participation, or other factors” (U.S. Environmental Protection Agency). Largely synonymous terms include “marginalized,” “front-line,” “underserved” and “environmental justice” communities. remain virtually unrepresented in certain aspects of decision-making, including energy planning and decision-making processes that drive energy production, distribution and regulation.5
Without public access to decision-making, the results of those decisions are unlikely to be equitable. Access to decision-making and equity6 are inextricably intertwined. This linkage is recognized in executive order 13985, in which President Joe Biden noted that “equal opportunity is the bedrock of American democracy, and diversity is one of our country’s greatest strengths.” 7 However, “entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities.” Consequently, the order launched a “comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The order directs federal government agencies to embark on a “systematic approach to embedding fairness in decision-making processes, executive departments and agencies,” which “must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.”
As a result of this executive order, federal agencies are:
- Identifying methods to assess equity, including assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals.
- Conducting assessments as to whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.
- Allocating federal resources to advance fairness and opportunity to address the historic failure to invest sufficiently, justly and equally in underserved communities, as well as individuals from those communities.
- Promoting equitable delivery of government benefits and equitable opportunities to all eligible individuals.
- Engaging with members of communities that have been historically underrepresented in the federal government and underserved by, or subject to discrimination in, federal policies and programs.8
The executive order also launched the Justice40 initiative, which is a whole-of-government effort to ensure that federal agencies work with states and local communities to deliver at least 40% of the overall benefits from federal investments in climate and clean energy to disadvantaged communities.9 State government has an important role to play in the Justice40 initiative, including “helping under-resourced communities to prepare for, apply for, and manage such complex, resource-intensive government programs and grants.”10 Justice40 also represents a major opportunity to empower disadvantaged community members. Justice40 can be a “pathway to achieve transformational change from the ground up, which requires updating investment programs and processes to ensure community engagement.”11
The executive order applies only to federal agencies, though it may affect state agencies that receive money for federal programs. The legislative options below show various approaches that states across the United States are taking to address access and equity considerations. The provisions primarily act on state agencies.12 Many cities and local governments adapt federal and state programs to their circumstances, and city and local government provisions frequently lead by example.
Improving Access and Public Engagement
Engaging the public — all of the public — as decisions are made leads to better informed decision-making and stronger solutions to problems. It has multiple benefits and is worth the investment of government, community groups and organizations that work for the common good.13 Many states14 have taken steps to improve engagement of marginalized communities at the state agency level. These states, and others, recognized that the structure of many state agency engagement practices contains barriers to diverse public participation. These barriers and proposed solutions include:
- Timing. Many agency proceedings and opportunities for public comment happen during the day. This is convenient for public officials and for groups seeking to understand or influence the process, such as interest groups, consultants and paid experts, news media, professional associations and nonprofit advocacy groups. However, other working individuals, particularly those with lower-paying jobs, have difficulty getting off work to participate in agency decisions.
Solution: Scheduling agency proceedings and opportunities for public comment at variable times of day and days of the week (including at least one weekend time and one evening time) will increase the likelihood of getting useful public input. Additionally, providing child care, compensation and light food or drink will enable parents and people coming from work to participate more fully.
- Notice period. Agencies must follow legal notice requirements for public meetings, including specific notice periods. If a notice period is too short, however, it may not provide interested individuals with the time necessary to make arrangements for child care, transportation or alternate work arrangements.
Solution: Longer notice periods can provide more opportunity for individuals to get informed on key decision points and make the necessary arrangements to attend.
- Publicity. Agencies may also be required to publicize notices of meetings according to state legal requirements. This does not ensure, however, that there is publicity in areas where people typically gather or would receive the notice.
Solution: Consider as many avenues as possible for reaching the target audience. Posting notices in places people commonly go — such as sports arenas, schools, places of worship, community centers and social media — will reach more of the public. Social media is a leading-edge and inclusive method to publicize agency events and is accessible to most demographics.
- Venue locations. Many agency meetings take place in the agency building, but this location isn’t always convenient for residents, particularly in states where this means traveling long distances.
Solution: In addition to providing virtual meeting locations, the agency should adopt a variety of locations for its informal meetings. These could include locations in gathering spaces familiar to marginalized communities, in neighborhoods whose residents are predominantly people of color and in rural locations across the state.
- Language. The language of the meeting can be a barrier as many agency proceedings, public comment facilitation and informational materials are presented in American English.
Solution: In addition to providing translation in American Sign Language, the agency should provide language services in, for example, the top two languages of the community as determined by the most recent census. This will mean translating and making available informational materials in these languages.
- Technical language. Many meetings before agencies contain technical language.
Solution: Agencies should provide relevant information and data to the public that is accessible to a nontechnical audience. This could include one-page summaries, infographics and short policy briefs. When outreach materials concerning the proposed agency action are provided in layperson’s terms, this can increase the likelihood that people are meaningfully informed and provided an opportunity to offer input.
Regulatory agencies are charged with the public interest, but archaic access provisions mean the most vulnerable members of the public can’t participate.
Recognizing these barriers, efforts at the federal, state and regulatory level are underway to establish equity as the foundation for agency decision-making.
Evaluating and Improving Policy
The above barriers and solutions articulate common issues with participation in agency processes. More fundamental changes are needed, however, to ensure that marginalized community members are part of the decision-making process. Decision-makers can direct government agencies and offices to assess the impact of existing laws on marginalized communities and to undertake best practices when creating new policies. These best practices include:15
Evaluate and update existing policy.
- Assess the impact of policies and regulations on different communities. Combine direct constituent engagement with input from subject-matter experts, from academics to members of marginalized communities. Dialogues among constituents, policymakers and experts could provide a more complete view of the impact of existing policies and rules.
- Update policies to reflect changing circumstances and constituent needs, especially in cases in which existing policies pose barriers to access. State agencies could also be directed to recommend to the legislature any changes in state law necessary to remove those barriers.
Set the stage for successful new policies.
- Establish an internal organization team within an agency or office to support the government’s equity strategy and ensure the use of inclusive engagement practices. This includes educating workers and training agency leaders on methods to incorporate diversity, inclusion and equity practices into everyday decision-making.
- Make equitable outcomes a core component of new policy formulation, or revisions to existing policy, to help address historic barriers and prevent perpetuation of problematic policies.
- Seek and evaluate new sources of information on the consequences of policy. New policies can benefit from measurement of program success. If a new policy is expected to have a specific beneficial impact on marginalized communities, decision-makers could set a goal and measure progress toward the goal to demonstrate impact.
- Promote community engagement by identifying and engaging with stakeholders from marginalized communities. Develop strategies to promote inclusive community engagement in decision-making processes, including using co-creation to increase community self-determination.16
Advancing Racial Equity in Decision-Making
Decision-makers at any level of government are able to shape key policy decisions, as well as design and provide input on administration of governmental services.17 There is, however, a lack of diversity in government leadership positions. As of March 2021, people of color make up approximately 47% of the federal workforce, but only 23% of the senior executive service that is responsible for leading the federal workforce.18
The options presented below have important limitations. Few provide pathways or requirements for marginalized community views to be explicitly included in the decision-making process. To the best of our knowledge, no legislative provisions yet require diversity in primary bodies of decision-makers.19 Some of the options below (Option 3, for example) create new government entities intended to be more representative of marginalized communities or better able to safeguard their interests, but they have advisory, rather than binding, authority. Leaders may consider adapting the options such that marginalized or overburdened communities, or bodies that represent them, have greater power in decision-making itself. Tools such as Arnstein’s ladder of citizen participation and participatory budgeting practices, as well as case studies of their use,20 offer options for governments to assess how their decision-making processes retain or redistribute the power of vested interests. We look forward to updating this guide with legislative options reflecting these principles as we learn of them.
State policy action is necessary to ensure that equity and access are priorities across state agencies. Many states are taking first steps to address barriers to diverse public participation in agency decision-making. The legislative options below provide examples of equity and access provisions broadly to all state agencies, and specific provisions for equity and access to participation in decision-making at a state public utility commission.
These legislative options fall into two categories: requirements that act on all state agencies and requirements that act specifically on the public utility commission. The featured legislative options provide different methods to improve access to state agency processes and to improve methods to explicitly consider equity in agency decisions. At the public utility commission, the included provisions require certain process steps to include overburdened communities during specific decisions that will impact these communities. The options in this part of the toolkit focus explicitly on access and equity in agency decision-making processes. Equitable application of benefits, incentives and resources are considered elsewhere in this toolkit.
States may adopt many of the provisions below simultaneously, such as provisions that have explicit access requirements on all state agencies and more focused requirements for public utility commissions or other environmental agencies. Provisions that will be most instrumental in moving diversity, equity and inclusion efforts forward in a state will be ones that state clear policy expectations for governmental agencies to follow on equity and access to agency process and create a permanent office of equity. Creation of an office — or, less optimally, a position — gives permanence to the effort that may be lacking in a task force or policy statement. It is equally important that such an office of equity is supported with state-level policy expectations; otherwise, a single office, let alone a single individual, likely will not be able to achieve the vision of the office.
Requirements on All State Agencies
The legislative options presented here are designed to ensure that a state’s commitment to diversity, equity and inclusion is carried out in all agency processes and decision-making.
Option 1 is inspired by legislation enacted in Maine in 202121 that requires consideration of climate impacts and equity by state agencies, in particular the state energy agency and public utilities commission. The Maine bill focused on defining terms and developing recommendations for incorporating equity considerations into state agency decisions. This option requires the lead agency to bring the recommendations back to the legislature, including recommended legislation to effectuate the recommendations. Additional language, added to the original text in brackets below, could require that agencies not only make recommendations about how to incorporate equity considerations and climate impacts into agency and commission decisions, but also recommend how to make agency processes, such as workshops, stakeholder engagements and public comment options more accessible to a diverse stakeholder group. Additionally, while changes to decision-making considerations and process likely will require legislative authority, optional language could require state agencies to incorporate those recommendations within existing agency purview immediately, ahead of specific authorization legislation.
Option 1 Provision: Incorporate Climate and Equity Considerations in State Agency Decision-Making and Process
(a) The [relevant state agency] shall develop methods of incorporating climate, environmental justice and equity considerations in decision-making at the [state environmental agency], the [public utilities commission] and [other state agencies]; and
(b) [The [relevant state agency] shall also develop recommendations for improvements to state agency and commission processes that makes participation and attendance by diverse stakeholders possible. Process changes to consider include:
(1) Timing of decision-making meetings and stakeholder engagement to include both day and evening hours;
(2) Requirements for a variety of locations for decision-making convenings and remote participation;
(3) Requirements for language services in the top [number] languages of the community as determined by the last census;
(4) Requirements on making data and information accessible to a nontechnical audience; and
(5) Other process changes identified after input and review pursuant to subsection (d).]
(c) The [relevant state agency] shall develop definitions for “environmental justice,” “environmental justice populations,” “frontline communities” and any other terms determined by the office to be necessary for the incorporation of equity considerations in decision-making at the [environmental agency], the [public utilities commission] and other state agencies, including the disproportionate impacts these communities may experience as a result of climate effects.
(d) In developing methods of incorporating equity considerations and the definitions pursuant to this section, the office shall seek specific input and review from [number] environmental justice and frontline communities in the state, low-income advocates, environmental groups and public advocates and allow for general input from the public and other interested stakeholders.
(e) [On or before [date], the [relevant state agency] shall submit a report to the [legislature or relevant legislative committees] that includes any recommendations regarding methods of incorporating equity considerations developed under subsection (a) and the definitions developed under subsection (c), including any suggested legislation. The committees may each report out a bill to the [legislature] based on the report.]
(f) [To the extent the agencies listed herein are able to act on these recommendations prior to legislative authorization within their existing statutory authority, they shall do so.]
Options 2a and 2b are inspired by Colorado legislation that also seeks to incorporate overburdened communities and historically underrepresented voices in public processes and decision-making and creates a task force to develop an environmental justice strategy and plan across all state agencies.22 Option 2a sets the process that agencies should follow when conducting outreach and engagement with overburdened communities. The Colorado legislation requires state agencies to “strive to create new ways to gather input from communities across the state using multiple languages and multiple formats and transparently sharing information about adverse environmental effects from its proposed state action.” Although not a requirement in the original legislation in Colorado, states could optionally make gathering input in such a manner a requirement. Option 2a articulates a goal for incorporating historically underrepresented voices in public processes and institutes initial guidelines for engagement with impacted communities.
Option 2b works in conjunction with 2a by creating a task force to develop recommendations for a state agencywide environmental justice strategy and plan that would include recommendations for creating and implementing equity analysis into all significant planning, rule-making, adjudications, orders and programmatic and policy decision-making and investments. The original legislation charged a 27-member diverse task force with creating the strategy, which is to be brought back to the Legislature for consideration.
Taken together, 2a and 2b require immediate engagement actions by state agencies with overburdened communities, while also setting in motion a task force to create more in-depth recommendations that could be implemented in the future. Both 2a and 2b were part of the Colorado legislation and represent a delicate balance between acting immediately on some items and taking the time to build a task force to set in place longer-term actions. Decision-makers may want to carefully structure a task force’s goals, outcomes and timeline so that it doesn’t unnecessarily delay action. While task forces may take longer to implement, they can also lead to real, valuable participation and input that can set in place much better policy than would otherwise be achieved.
Option 2a Provision: Engage Overburdened Communities in Decision-Making
(a) The legislature finds that:
(1) All people have the right to breathe clean air, drink clean water, participate freely in decisions that affect their environments, live free of dangerous levels of toxic pollution, experience equal protection provided by environmental policies and share the benefits of a prosperous and vibrant pollution-free economy;
(2) Specifically, communities with residents who are Black, Indigenous, Latino or people of color have faced centuries of genocide, environmental racism and predatory extraction practices; and
(3) At the same time, environmental justice affects and requires the participation of all [state] residents.
(b) The legislature declares that:
(1) The state government has a responsibility to achieve environmental justice, health equity and climate justice for all communities by avoiding and mitigating harm;
(2) It is necessary for disproportionately impacted communities to be meaningfully engaged as partners and stakeholders in government decision-making;
(3) Potential environmental and climate threats to communities merit a higher level of engagement, review and consent; and
(4) This act is necessary to ensure that communities are not forced to bear disproportionate environmental and health impacts.
(c) State engagement of disproportionately impacted communities.
(1) Goal: The goal of outreach to and engagement of disproportionately impacted communities is to build trust and transparency, provide meaningful opportunities to influence public policy and modify proposed state action in response to received public input to decrease environmental burdens or increase environmental benefits for each disproportionately impacted community.
(1) To promote the goal of state engagement of disproportionately impacted communities, an agency [shall strive to create new ways to][shall] gather input from communities across the state, using multiple languages and multiple formats and transparently sharing information about adverse environmental effects from its proposed state action.
(2) When conducting outreach to and engagement of disproportionately impacted communities regarding a proposed state action, the agency shall:
(A) Schedule variable times of day and days of the week for opportunities for public input on the proposed state action, including at least one weekend time, one evening time and one morning time for public input;
(B) Provide notice at least 30 days before any public input opportunity or before the start of any public comment period;
(C) Utilize several different methods of outreach and ways to publicize the proposed state action, including disseminating information through schools, clinics, social media, social and activity clubs, local governments, tribal governments, libraries, religious organizations, civic associations, community-based environmental justice organizations or other local services;
(D) Provide several methods for the public to give input, such as in-person meetings, virtual and online meetings, online comment portals or email and call-in meetings;
(E) Consider using a variety of locations for public input on the proposed state action, including meeting locations in urban centers, in neighborhoods whose populations are predominantly Black, Indigenous, Latino or people of color and have an average income below the state’s average and in rural locations in various regions of the state; and
(F) Create outreach materials concerning the proposed state action in layperson’s terms, translated into the top two languages other than English spoken in a community, that inform people of opportunities to provide input on the proposed state action, their rights, the possible outcomes and the upcoming public input process.
Option 2b Provision: Create an Environmental Justice Task Force
(1) There is hereby created in the [relevant agency] the Environmental Justice Action Task Force to recommend and promote strategies for incorporating environmental justice and equity into how state agencies discharge their responsibilities.
(2) The task force consists of [number] members appointed pursuant to paragraph (a)(3) of this section.
(3) The membership of the task force and appointing authorities are as follows:
(A) The governor shall appoint the following [number] members:
(i) [Number] representatives from the department of public health and environment, one with expertise in air quality, one with expertise in water quality and one with expertise in health equity;
(ii) [Number] representative of the department of natural resources;
(iii) [Number] representative of the department of transportation;
(iv) [Number] representative of the [state] energy office;
(v) [Number] representative of the public utilities commission;
(vi) [Number] representative of the department of agriculture; and
(vii) [Number] representative of the governor’s office;
(B) [Number] members of [different Indian tribes in the state, as appointed by respective tribal councils.]
(C) [Number] members appointed by the [legislature or other officials as appropriate][president of the Senate, the minority leader of the Senate, the speaker of the House of Representatives, and the minority leader of the House of Representatives, with one member appointed under clause (a)(3)(C)(i) of this section by each appointing authority and three members appointed under clause (a)(3)(C)(ii) by each appointing authority]:
(i) [Number] members who represent disproportionately impacted communities located, to the extent practicable, in different congressional districts of the state; and
(ii) The following [number] members of different organizations that:
(I) Carry out initiatives relating to environmental justice, [number] members;
(II) Represent worker interests in disproportionately impacted communities, [number] members;
(III) Represent the interests of people of color, [number] members;
(IV) Represent the renewable energy industry, [number] member;
(V) Represent the nonrenewable energy industry, [number] member;
(VI) Represent local government in disproportionately impacted communities, [number] member; and
(VII) Work to support public health, who must be an environmental toxicologist, [number] member.
(D) The appointing authorities shall fill a vacancy as soon as possible. In making appointments to the task force, the appointing authorities shall ensure that the membership of the task force reflects the racial, ethnic, cultural and gender diversity of the state, including representation of all areas of the state.
(b) Mission of the task force. The mission of the task force is to propose recommendations to the general assembly regarding practical means of addressing environmental justice inequities by:
(1) Promoting environmental justice across state agencies and improving collaboration among state agencies in identifying and addressing the human health and environmental effects of programs, policies, practices and activities on disproportionately impacted communities;
(2) Improving cooperation on environmental justice initiatives among the state government, tribal governments and local governments;
(3) Ensuring meaningful involvement and due process in the development, implementation and enforcement of environmental laws and policies; and
(4) Addressing environmental health, pollution and public health burdens in disproportionately impacted communities and building healthy, sustainable and resilient communities.
(c) Duties of the task force. The task force [shall consider proposing][shall propose] recommendations concerning the following:
(1) Developing a state agencywide environmental justice strategy and a plan to implement that strategy, which could include:
(A) Recommendations for creating and implementing equity analysis into all significant planning, rule-making, adjudications, orders, programmatic and policy decision-making and investments;
(B) A [potential] requirement that agencies prepare an environmental equity analysis for any state action that has the potential to cause negative environmental or public health impacts to a disproportionately impacted community, which analysis could include a process for identifying and describing cumulative impacts to the health and environment of disproportionately impacted communities;
(C) A [potential] requirement that for any state action that may cause adverse environmental or public health impacts to a disproportionately impacted community, the adverse environmental or public health must be avoided, and if the effects cannot be avoided, they must be minimized and mitigated;
(D) A [potential] requirement that permits must be issued and renewed only after an environmental equity analysis determines that the terms and conditions of the permit or renewal are sufficient to ensure, to a reasonable certainty, that any harm to the health and environment of disproportionately impacted communities is either:
(i) Avoided; or
(ii) Minimized to the extent practicable and, to the extent any harm remains, is mitigated;
(E) A [potential] requirement that all environmental projects developed as part of a settlement relating to violations in a disproportionately impacted community are developed in consultation with and through meaningful participation of individuals in the disproportionately impacted community and result in improvement to the health and environment of the affected disproportionately impacted community; and
(F) Recommendations for establishing measurable goals for reducing environmental health disparities for disproportionately impacted communities;
(2) Adoption of a plan that addresses the lack of data and lack of data sharing among state agencies about potential exposure to environmental hazards and improves research and data collection efforts related to the health and environment of disproportionately impacted communities, climate change, and the inequitable distribution of burdens and benefits of the management and use of natural resources;
(3) Provisions for engagement of disproportionately impacted communities, taking into account barriers to participation that may arise due to race, color, ethnicity, religion, income or education level.
(d) The task force shall:
(1) Hold at least six meetings, which may be online or in person, to seek input from, present its work plan and proposals to, and receive feedback from communities throughout the state;
(2) Submit a final report of its findings and recommendations to the [the governor and legislature or relevant legislative committees and agencies], by [date]; and
(3) Post summaries of its meetings, draft recommendations and the final report, which must be available as a public record on the home page of the department’s website.
This legislation from Colorado23 works in complement with other state actions to incorporate overburdened communities in state agency processes. The original Colorado provision appoints a specific person as a newly created environmental justice ombudsperson to both advocate for the needs of overburdened or disproportionately impacted communities and serve as a liaison for these communities within or among relevant state agencies. Creating a position, with an identified individual tasked with advancing environmental justice goals, can significantly advance equity goals, especially when accompanied by policy directives at state agencies, such as the other options articulated in this section.24 It is important for the success of this position that it is also supported with appropriate budgetary and staffing resources. New Jersey created an Office of Clean Energy Equity, which oversees the deployment of clean energy technologies and energy efficiency programs, ensuring access for all residents, including low- and moderate-income communities.25
Both the New Jersey Office of Clean Energy Equity and the Colorado Environmental Justice Ombudsperson were created for positions within the respective state public utility commissions. Given the scope of the position, however, be it a single agency or across multiple agencies, creation of an office with a dedicated mission, staff and budget would provide more resources to successfully achieve important objectives, as well as consistency across all state government agencies.26
This provision can likewise be combined with others. This option, in conjunction with policy expectations articulated in options 1 or 2a and 2b, will likely be the most instrumental in moving diversity, equity and inclusion efforts forward in a state because creating a position adds permanence that may be lacking in a task force or policy statement. It is equally important that such a position is supported with state-level policy expectations; otherwise, a single individual may be unable to succeed in the envisioned tasks.
Option 3 Provision: Create an Environmental Justice Ombudsperson or Office of Environmental Justice
(a) There is hereby created in the [department of energy, public utilities commission, other relevant state department or agency] the [position of an environmental justice ombudsperson][environmental justice office]. The [ombudsperson][director of the environmental justice office] reports to the executive director of the [relevant state department or agency]. The [relevant state department or agency] shall provide administrative support for the [ombudsperson][environmental justice office]. The [ombudsperson][environmental justice office] otherwise functions independently in exercising its powers. The [ombudsperson][environmental justice office] may employ staff necessary to carry out the duties required in this section.
(b) The governor shall appoint the [ombudsperson][director of the environmental justice office] as soon as practicable but no later than [date] and as necessary thereafter to fill a vacancy. Prior to an appointment, the governor or the governor’s designee shall consult with, and may receive recommendations from, the [relevant state advisory board, if any], the general assembly, representatives of disproportionately impacted communities and other relevant stakeholders regarding the selection of the ombudsperson.
(c) The [ombudsperson][director of the environmental justice office] must be qualified by training or experience in environmental justice [and should [have been][be] a resident of one or more disproportionately impacted communities or have worked to advance environmental justice within disproportionately impacted communities].
(d) The [ombudsperson][environmental justice office] shall:
(1) Collaborate with state agencies and offices for the purpose of promoting environmental justice for the people of [state];
(2) Serve as an advocate for disproportionately impacted communities and as a liaison between disproportionately impacted communities and the [relevant state agency][state agencies], including with respect to communications regarding [relevant state grants or programs];
(3) Work to improve the relationships and interactions between disproportionately impacted communities and [the relevant state agency][all state agencies];
(4) Increase the flow of information between [the relevant state agency][all state agencies] and disproportionately impacted communities concerning the environment and state programs using methods of outreach that include, at a minimum:
(A) Disseminating information through local schools, social media, local social and activity clubs, libraries or other local services; and
(B) Prioritizing in-person meetings in communities with populations that are predominantly Black, Indigenous, Latino or Asian American, that have a median income below the state’s average or that are in rural locations;
(5) Identify ways to enable meaningful participation by disproportionately impacted communities in the decision-making processes of [the relevant state agency][all state agencies];
(6) Maintain a telephone number, website, email address and mailing address for the receipt of complaints and inquiries for matters pertaining to environmental justice;
(7) Establish procedures to address complaints pertaining to environmental justice to the extent practicable;
(8) Consult with the [relevant department of administration] in reporting to the [state agency for air quality] on equitable progress toward the state’s [air toxic emissions goals][greenhouse gas reduction goals]; and
(9) Engage in relevant administrative proceedings, such as matters before the [public utilities commission] and the [state air quality control agency/board/commission].
Requirements on Public Utility Commissions
In 2019-2021, numerous states required public utility commissions to ensure all customers benefit from the transition to clean energy and imposed various requirements. These included:27
- Colorado (S.B. 21-272, 2021) requires the Public Utilities Commission to adopt rules for “all of its work” to “consider how best to provide equity, minimize impacts, and prioritize benefits to disproportionately impacted communities and address historical inequalities.” Another bill (S.B. 21-103, 2021) gives the Colorado Office of the Utility Consumer Advocate expanded authority to intervene before the commission on environmental justice, just transition and decarbonization issues.
- Illinois’ Climate and Equitable Jobs Act (S.B. 2408, 2021) requires the Commerce Commission to conduct a comprehensive study and submit a report to the General Assembly by January 1, 2023, assessing whether low-income discount rates for electric (and natural gas) residential customers are appropriate and potential design and implementation. Upon completion of the study, the commission is authorized to permit or require utilities to file a tariff establishing low-income discount rates. The bill also significantly increased minimum spending levels for low-income energy efficiency programs.
- In Massachusetts (S.B. 9, 2021), the Department of Public Utilities must include equity among six priorities for meeting statewide greenhouse gas emissions limits, in addition to safety, security, reliability of service, affordability and reductions in greenhouse gas emissions.
- In New York, the Climate Leadership and Community Protection Act (S.B. S6599, 2019) includes several energy justice provisions, including a requirement to direct at least 35% to 40% of the program’s benefits to historically disadvantaged communities.
- Oregon (H.B. 2475, 2021) recently added the following factors that the Public Utility Commission may consider for classifying utility services for retail rates: “differential energy burdens on low-income customers and other economic, social equity or environmental justice factors that affect affordability for certain classes of utility customers.”
- Washington’s Clean Energy Transformation Act (S.B. 5116, 2019) charges the Washington Utilities and Transportation Commission with “[e]nsuring that all customers are benefiting from the transition to clean energy … [t]hrough the equitable distribution of energy and non-energy benefits and the reduction of burdens to vulnerable populations and highly impacted communities.”
The following options focus specifically on access to public utility commission proceedings. Each of the provisions focuses on a different aspect of utility proceedings and indicates specific priorities for the states that enacted them. Option 4 requires participation plans for new or expanded plant permits or transmission line siting through environmental justice communities.28 Option 5 requires robust workshop participation that incorporates diverse stakeholders for certain proceedings. Option 6 requires commission consideration of historical inequalities on overburdened communities for any retail customer programs. States desiring a more comprehensive approach could require all three of these options for utility commissions. Alternatively, they could add some of these specific requirements in legislation on state agencies more broadly in options 1 and 2.
Option 4 imposes environmental justice requirements on certain public utility commission decisions and is based on Connecticut H.B. 7008 and also very similar to New Jersey S.B. 232. The provision requires a specific stakeholder engagement process when decisions about permitting a new facility or siting of a transmission line are contemplated in environmental justice communities. It requires specific engagement activities to take place so that members of the environmental justice community have notice, access and ability to participate and understand the proceedings. Decisions on siting of new plant and transmission lines through these communities may not proceed without such a public engagement process. An optional addition, which is included in New Jersey S.B. 232, also requires the relevant state agency or public utility commission to explicitly consider community support, or lack thereof, when making a decision. This option requires this stakeholder engagement process for siting of new plants and transmission lines through specific environmental justice communities. States may also want to consider if there are other commission decisions that should require all or part of the stakeholder engagement processes. These decisions could include rate cases that contemplate an increase in rates that will affect highly impacted and low-income communities and major utility planning processes, such as integrated resource planning and distribution system planning.
This provision also includes an option for a community environmental benefit agreement. A community benefit agreement is an agreement among developers, public or private entities and community-based organizations or coalitions to address community concerns or existing or potential harms. They are usually enacted when a major development or expansion project happens near residential areas so that the affected residents are able to share the benefit or mitigate the adverse impacts. Ideally, they allow community residents and groups to negotiate and enter into agreements designed to offset burdens often borne by these communities.29
Option 4 Provision: Public Participation Plan for Decisions in Environmental Justice Communities
(a) Commission proceedings or utility applications for the following actions must follow the public participation plan process outlined below:
(1) New or expanded permit of siting approval involving a facility that is proposed to be located in an environmental justice community, or the proposed expansion of a facility.
(2) New or proposed transmission line that is proposed to be located in an environmental justice community, or the proposed expansion of a facility.
(3) [New infrastructure proposals, including new service delivery options that will be located in an environmental justice community.]
(4) [Rate proceedings that involve allocation of costs to rate classes, particularly proposals that income-constrained customers are treated as a discrete customer class.]
(b) All other commission proceedings and utility applications not listed may follow the public participation plan process. Additionally, if requested by [number] of residents, the public participation plan shall be followed.
(c) The public participation process shall:
(1) Provide meaningful opportunity for engagement, where diverse viewpoints are present and a variety of options may be considered;
(2) Provide a transparent process and transparent publication of documentation associated with the proceeding;
(3) Ensure that the public engagement process is broadly accessible in terms of location, time and language and supports the engagement of residents with disabilities. Notices for meetings should be made in the languages spoken in the community and should be publicly posted at local community centers, libraries, faith organizations, clubs, community organizations, medical facilities, schools or other places people commonly gather.
(d) Each meaningful public participation plan shall contain measures to facilitate meaningful public participation in the regulatory process and a certification that the applicant will undertake the measures contained in the plan. Such a plan shall identify a time and place where an informal public meeting will be held that is convenient for the residents of the affected environmental justice community. In addition, any such plan shall identify the methods, if any, by which the applicant will publicize the date, time and nature of the informal public meeting in addition to publication of relevant documents for the proceeding. Such methods shall include, but not be limited to:
(1) Posting a reasonably visible sign on the proposed or existing facility property, printed in English, in accordance with any local regulations and ordinances;
(2) Posting a reasonably visible sign, printed in all languages spoken by at least [20%][x%] of the population that reside within a half-mile radius of the proposed or existing facility, in accordance with local regulations and ordinances. The determination of the percentage of persons that speak a language of this subdivision shall be made in accordance with the most recent U.S. census;
(3) Notifying neighborhood and environmental groups, in writing, in a language appropriate for the target audience; and
(4) notifying local and state elected officials, in writing.
(e) Not less than 10 days prior to the informal public meeting and not more than 30 days prior to such meeting, the applicant shall publish the date, time and nature of the informal public meeting with a minimum one-quarter-page advertisement in a newspaper having general circulation in the area affected, and any other appropriate local newspaper serving such area, in the Monday issue of a daily publication or any day in a weekly or monthly publication. The applicant shall post a similar notification of the informal public meeting on the applicant’s website, if applicable.
(f) At the informal public meeting, the applicant shall make a reasonable and good faith effort to provide clear, accurate and complete information about the proposed facility or the proposed expansion of a facility and the potential environmental and health impacts of such facility or such expansion.
(g) The [state environmental agency, public utility commission, agency in charge of siting] shall not take any action on the applicant’s permit, certificate or approval earlier than 60 days after the informal public meeting. For any such application filed on or after [date], if the applicant fails to undertake the requirements of this subsection, any such application shall be deemed insufficient.
(h) [The [state environmental agency, public utility commission, agency in charge of siting], when evaluating an application for a permit pursuant to this section, shall assess the community support for the proposed new facility or expansion of an existing facility, as demonstrated through the public hearing conducted pursuant to this section, letters of support for, or opposition to, the proposed new or expanded facility, and any ordinance or resolution adopted by the governing body of the municipality in which the burdened community is located. The [state environmental agency, public utility commission, agency in charge of siting] shall consider community support, or the lack thereof, in its decision to grant or deny a permit.]
(i) Any municipality, owner or developer may enter into a community environmental benefit agreement in connection with an affecting facility. For any application filed on or after [date], for such an affecting facility that (1) requires a permit for new plant siting, or (2) constitutes a new or expanded permit or siting approval from [relevant state agencies], and that is located in an environmental justice community or is proposed to be located in such a community, the applicant shall enter into such an agreement with the municipality if there are five or more affecting facilities in such municipality at the time such application is filed. Mitigation may include both on-site and off-site improvements, activities and programs, including, but not limited to, funding for activities such as: environmental education, diesel pollution reduction, electric vehicle charging infrastructure construction, establishment of a wellness clinic, ongoing asthma screening, provision of air monitoring performed by a credentialed environmental professional, performance of an ongoing traffic study, watercourse monitoring, construction of biking facilities and [walking] multiuse trails, staffing for parks, urban forestry, support for community gardens or any other negotiated benefit to the environment in the environmental justice community. Prior to negotiating the terms of a community environmental benefit agreement, the municipality shall provide a reasonable and public opportunity for residents of the potentially affected environmental justice community to be heard concerning the requirements of, or need for, and terms of such agreement.
(j) The chief elected official or town manager of a municipality shall participate in the negotiations for any such community environmental benefit agreement and shall implement, administer and enforce such an agreement on behalf of the municipality, provided any such agreement negotiated pursuant to this section on and after [date] shall be approved by the legislative body of the municipality prior to implementation, administration and enforcement of such agreement.
(k) The [relevant state agency] may adopt rules and regulations to implement the provisions of this act.
(l) This act shall take effect immediately.
Workshops are a common part of the regulatory process to gather stakeholder input on a variety of topics. Often these stakeholder events are attended mostly by utility and energy industry professionals, feature technical language and data, and are held at times and locations that are not conducive to diverse stakeholder input. Many issues can, however, greatly benefit from diverse stakeholder input, especially matters affecting overburdened communities. This option, based on a portion of the Illinois Climate and Equitable Jobs Act,30 specifically requires diverse stakeholder input for proceedings. The original legislation required this workshop process for a multiyear rate plan proceeding. Legislators can specify certain proceedings that should require this specific effort and input for other proceedings, such as a new rule-making, rate cases, siting decisions, transmission siting and any proceeding that would specifically affect overburdened communities.
Option 5 is narrower than Option 4, as it applies only to specific proceedings. It is not a requirement that all proceedings have workshops. Decision-makers could adopt options 4 and 5 in conjunction as well.
Option 5 Provision: Diverse Stakeholder Engagement for Workshops
(a) Commission proceedings or utility applications involving workshops must follow the process outlined below:
(1) Workshops should be organized and facilitated in a manner that encourages representation from diverse stakeholders, ensuring equitable opportunities for participation, without requiring formal intervention or representation by an attorney. Workshops should be held during both day and evening hours, in a variety of locations within each electric utility’s service territory and should allow remote participation. Language services shall be provided in the top [number] languages of the community as determined by the last census, upon request.
(2) It is a goal of the state that this workshop process will provide a forum for interested stakeholders to effectively and efficiently provide feedback and input to the electric utility. It is also a goal of the state that stakeholder participation in this process will prepare stakeholders to more capably participate in new policy proceedings that involve resource planning, siting or other major policy proceedings. As part of the workshop process, the electric utility shall submit to the commission the [utility data relevant to the proceeding] before the start of workshops to allow interested stakeholders to reasonably review data before attending workshops. Data submitted by the utility shall be technically accessible to participating stakeholders. The commission shall make public the [utility data] by posting it on the commission’s website and set the location and time of any workshop to be held as part of the workshop process and establish a data request process, consistent with the commission’s rules, that affords workshop participants opportunities to submit data requests to the utility and receive responses in accordance with the utility’s obligations under the law, prior to the workshop.
(3) Upon the written request of a workshop participant, the utility shall also present at a given workshop at least one appropriate company representative who can address the specific written questions or written categories of questions identified in advance by the workshop participant. To facilitate public feedback, the administrator facilitating the workshops shall, throughout the workshop process, develop questions for stakeholder input on topics being considered. This may include, but is not limited to: design of the workshop process, locational data and information provided by utilities, alignment of plans, programs, investments and objectives, and other topics as deemed appropriate by the commission facilitation staff or requested by stakeholders. Stakeholder feedback shall not be limited to these questions. The information provided as part of the workshop process is intended to be informational and to provide a preliminary view of costs and investments, which may change. Accordingly, the information provided pursuant to this subsection shall not be binding on the utility and shall not be the sole basis for a finding in any commission proceeding of imprudence, unreasonableness or lack of use or usefulness of any individual or aggregate level of utility plant or other investment or expenditure addressed; however, information contained in the plan may be used in a proceeding before the commission, with weight of such evidence to be determined by the commission.
(4) Workshops shall not be considered settlement negotiations, compromise negotiations or offers to compromise. All materials shared as a part of the workshop process, and that are not determined to be confidential, shall be made publicly available on a website made available by the commission.
(5) On conclusion of the workshops, the commission shall open a comment period that allows interested and diverse stakeholders to submit comments and recommendations regarding the proceeding. Based on the workshop process and stakeholder comments and recommendations offered verbally or in writing during the workshops and in writing during the comment period following the workshops, the independent third-party facilitator shall prepare a report, to be submitted to the commission no later than [date], describing the stakeholders, discussions, proposals and areas of consensus and disagreement from the workshop process and making recommendations to the commission regarding the [proceeding]. Interested stakeholders shall have an opportunity to provide comment on the independent third-party facilitator report.
(6) To the extent practicable and reasonable, all programs, policies and initiatives proposed by the utility in its plan should be informed by stakeholder input received during the workshop process pursuant to this section. Where specific stakeholder input has not been incorporated in proposed programs, policies and plans, the electric utility shall provide an explanation as to why that input was not incorporated.
(7) To carry out its responsibilities under this act, the [public utility commission] shall be allocated additional annual funds of [amount]. In performing its responsibilities under this act, the [public utility commission] may select and engage outside consultants with experience in workshop facilitation.
This option, based on Colorado legislation,31 directs the public utilities commission to create rules that require the commission to take into account historic inequalities for overburdened communities. It also requires the commission to take concrete steps to request input from overburdened communities to ensure that retail programs provide benefits to these communities. This option requires specific commission efforts to host informational meetings, workshops and hearings that invite input from overburdened communities. Importantly, it also requires the commission to ensure that low-income customers and overburdened communities will have at least proportionate access to the benefits of programs, incentives and investments.
Option 6 Provision: Rules Addressing Historical Inequities and Equity Concerns
(a) The general assembly finds, determines and declares that:
(1) Certain communities, both in [state] and internationally, have historically been forced to bear a disproportionate burden of adverse human health or environmental effects, as documented in numerous studies that shows how the pollution burden is distributed in [state], while also facing systemic exclusion from environmental decision-making processes and enjoying fewer environmental benefits; and
(2) The purpose of this section is to ensure that the [public utility commission], in exercising its regulatory authority, will take account of and, where possible, help to correct these historical inequities.
(b) The [public utility commission] shall promulgate rules requiring that the commission, in all of its work including its review of all filings and its determination of all adjudications, consider how best to provide equity, minimize impacts and prioritize benefits to disproportionately impacted communities and address historical inequalities.
(1) In promulgating rules pursuant to this subsection, the [public utility commission] shall identify disproportionately impacted communities. In identifying the communities, the [public utility commission] shall consider minority, low-income, tribal or Indigenous populations in the state that experience disproportionate environmental harm and risks resulting from such factors as increased vulnerability to environmental degradation, lack of opportunity for public participation or other factors. Increased vulnerability may be attributable to an accumulation of negative or a lack of positive environmental, health, economic or social conditions within these populations.
(2) When making decisions relating to retail customer programs, the [public utility commission] shall host informational meetings, workshops and hearings that invite input from disproportionately impacted communities and shall ensure, to the extent reasonably possible, that such programs, including any associated incentives and other relevant investments, include floor expenditures, set aside as equity budgets, to ensure that low-income customers and disproportionately impacted communities will have at least proportionate access to the benefits of such programs, incentives and investments.
Dobson, C. (n.d.). Arnstein’s Ladder of Citizen Participation. The Citizen’s Handbook. https://www.citizenshandbook.org/arnsteinsladder.html
Duncan, J., Eagles, J., Farnsworth, D., Shenot, J., & Shipley, J. (2021). Participating in Power: How to Read and Respond to Integrated Resource Plans. Regulatory Assistance Project, Institute for Market Transformation. https://www.raponline.org/knowledge-center/participating-in-power-how-to-read-and-respond-to-integrated-resource-plans/
Luck, E. (2021, November 19). Recognizing Energy Inequities for Building Decarbonization. Northeast Energy Efficiency Partnerships. https://storymaps.arcgis.com/stories/28fb21bf54294fa8b22f374fdf536be8
- U.S. Citizenship and Immigration Services. (n.d.). Democracy in the United States. https://www.uscis.gov/sites/default/files/document/lesson-plans/Government_and_You_handouts.pdf
- Nunn, R., Parsons, J., & Shambaugh, J. (2019, January 31). Nine facts about state and local policy. Brookings Institution. https://www.brookings.edu/research/nine-facts-about-state-and-local-policy/
- Nunn et al., 2019.
- Zhang, F. (n.d.). Citizen participation in U.S. local governments. Arizona State University, Center for Science, Technology and Environmental Policy Studies. https://csteps.asu.edu/sites/default/files/policymemo_citizenparticipation.pdf
- Farley, C., Howat, J., Bosco, J., Thakar, N., Wise, J., & Su, J. (2021). Advancing equity in utility regulation. Lawrence Berkeley National Laboratory. https://emp.lbl.gov/publications/advancing-equity-utility-regulation
- The term “equity” means the consistent and systematic fair, just and impartial treatment of all individuals, including individuals who belong to communities that have been denied such treatment, such as women and girls; Black, Latino, Indigenous and Native American people, Asian Americans and Pacific Islanders and other people of color; people facing discrimination or barriers on account of gender identity; members of religious minorities; lesbian, gay, bisexual, transgender and queer people; people with disabilities; people who live in rural areas; and people otherwise adversely affected by persistent poverty or inequality.
- Biden, J. R. (2021, January 20). Executive order on advancing racial equity and support for underserved communities through the federal government. The White House, Briefing Room, Presidential Actions. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/
- Biden, 2021.
- Young, S., Mallory, B., & McCarthy, G. (2021, July 20). The path to achieving Justice40. The White House, Office of Management and Budget. https://www.whitehouse.gov/omb/briefing-room/2021/07/20/the-path-to-achieving-justice40/
- Soares, K. (2022, February 17). Federal climate funding initiatives: What states need to know. ClimateXChange. https://climate-xchange.org/2022/02/17/federal-climate-funding-initiatives-what-states-need-to-know/
- Soares, 2022.
- “Agency” as used in this document means any department, agency or instrumentality of a state or of a political subdivision of a state.
- Horntvedt, J. (n.d.). Five reasons to involve others in public decisions. University of Minnesota Extension. https://extension.umn.edu/public-engagement-strategies/five-reasons-involve-others-public-decisions
- States such as California, Colorado, Illinois, Maine, Massachusetts, New York, Oregon, Washington, New Jersey, Hawaii and Connecticut have all acted at the legislative and regulatory level to increase access. Farley et al., 2021.
- Best practices are excerpted from Myers, K., Batts, K., Shah, S., Eggers, W., & Datar, A. (2021, September 14). Government’s equity imperative. Deloitte. https://www2.deloitte.com/us/en/insights/industry/public-sector/bias-discrimination-racial-equity-government.html
- Office of Equity and Human Rights. (n.d). Promising practices in government to advance racial equity. City of Portland, Oregon. https://www.portlandoregon.gov/oehr/article/564991
- Local and Regional Government Alliance on Race and Equity. (2015, August 18). The Twin Cities Boards and Commissions Leadership Institute: Using board and commission appointments to advance racial equity. https://www.racialequityalliance.org/2015/08/18/the-twin-cities-boards-and-commissions-leadership-institute/
- Partnership for Public Service. (2021, August 26). A revealing look at racial diversity in the federal government. https://ourpublicservice.org/blog/a-revealing-look-at-racial-diversity-in-the-federal-government/
- A few states, including California, are enacting legislation to require greater diversity on corporate boards. Ehisen, R. (2022, January 13). Will more states set board diversity mandates? LexisNexis. https://www.lexisnexis.com/community/insights/legal/capitol-journal/b/state-net/posts/will-more-states-set-board-diversity-mandates
- Karner, A., Brown, K. B., Marcantonio, R., & Alcorn, L. G. (2019). The view from the top of Arnstein’s ladder. Journal of the American Planning Association, 85(3), 236-254. https://www.tandfonline.com/doi/full/10.1080/01944363.2019.1617767
- An Act to Require Consideration of Climate Impacts by the Public Utilities Commission and to Incorporate Equity Considerations in Decision Making by State Agencies, H.P. 1251-L.D. 1682, Chapter 279, Public Law (Me. 2021). https://legislature.maine.gov/legis/bills/getPDF.asp?paper=HP1251&item=3&snum=130
- Environmental Justice Act, H.B. 21-1266, General Assembly (Colo. 2021). https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf
- Environmental Justice Act.
- Recommendations based on personal communication with Ezell Watson, director of diversity, equity and inclusion, Oregon Public Utilities Commission.
- New Jersey Board of Public Utilities. (n.d.). Clean energy. https://www.state.nj.us/bpu/about/divisions/edep/#:~:text=Established%20in%202020%2C%20The%20Office,%2Dincome%20(LMI)%20communities\
- Best practice from university settings indicates that offices of equity work best when they are led by a senior leadership-level member, such as an assistant dean, who actively participates in all areas of shared governance. This director-level position has oversight to coordinate and develop efforts across the unit, and the director has straight reporting line to the top level. Additionally, the director is a member of the leadership team. PennState Educational Equity. (n.d.). Best practices and potential best practices. http://equity.psu.edu/updates/analysis/best-practices
- Farley et al., 2021.
- The U.S. Environmental Protection Agency defines environmental justice as “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.” Further, the agency states that “fair treatment” means “no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies.” Environmental justice communities are those that have not received fair treatment and have consequently experienced a disproportionate share of negative environmental consequences. See U.S. Environmental Protection Agency. (2022, September 6). Learn about environmental justice. https://www.epa.gov/environmentaljustice/learn-about-environmental-justice
- U.S. Department of Energy. (n.d.). Community benefit agreements: Frequently asked questions (FAQs). https://www.energy.gov/sites/prod/files/2017/09/f36/CBA%20Resource%20Guide%20FAQs.pdf
- Energy Transition Act, Public Act 102-0662, 2021 Ill. Laws. https://www.ilga.gov/legislation/publicacts/102/PDF/102-0662.pdf
- An Act Concerning the Operations of the Public Utilities Commission, S.B. 21-272, Gen. Assemb. (Colo. 2021) (enacted). https://leg.colorado.gov/sites/default/files/2021a_272_signed.pdf