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    ARTICLE

    Washington State's New Environmental Justice Act Exempts Forest Activities

    Aidan Read

    Apr 20, 2022

    6 min read

    Air & Climate Climate Change Courts & Practice of Law Enforcement & Oversight Environmental Justice Federal Agencies Forestry Health & Safety Resources & Land Management Tribes, Justice, & Community

    Summary

    • Addresses how the HEAL Act falls short because it exempts state forest practice permits and timber sales issued by the Department of Natural Resources from the environmental justice analysis requirement.
    • Discusses how the HEAL Act implements environmental justice principles in several respects.
    • Covers how the elimination of the environmental justice assessment will allow the Department of Natural Resources to continue to allow logging that will negatively impact already overburdened communities.
    Washington State's New Environmental Justice Act Exempts Forest Activities
    Alan Majchrowicz via Getty Images

    The environmental justice movement has seen recent gains in state legislatures and governors’ offices across the country. Several states have recently passed legislation or issued executive orders regarding the need to take environmental justice concerns into account when making permitting and siting decisions. In the Pacific Northwest, this movement has culminated in the recent passage by the Washington State Legislature of the Healthy Environment for All (HEAL) Act, which became effective July 25, 2021. While the HEAL Act has important provisions codifying the principles of environmental justice that will lead to strong public participation and the equitable distribution of burdens of environmental pollution, the Act falls short because it exempts state forest practice permits and timber sales issued by the Department of Natural Resources from the environmental justice analysis requirement.

    The HEAL Act implements environmental justice principles in several respects. First, it defines environmental justice as more than a process involving the public in decision making. Healthy Environment for All Act, E2SSB 5141.SL, 67th Legis. § 2(8) (2021). By defining environmental justice as the equal distribution of the benefits of policy and government investments, the HEAL Act goes a step further in requiring not just equitable participation in permitting and siting decisions, but also in requiring equitable results. Id. at § 14.

    The HEAL Act contains a provision requiring state agencies to conduct a detailed environmental justice analysis when creating policies and writing regulations with a goal of maximizing the benefits of these undertakings for overburdened communities and minimizing the harms the undertakings may inflict on communities. Id. The environmental justice analysis must be performed for any significant agency action, which “must be actions that may cause environmental harm or may affect the equitable distribution of environmental benefits to an overburdened community or a vulnerable population.” Id. at § 2(12). This is an important provision because it directly codifies environmental justice principles and requires agencies to perform this analysis in virtually all agency actions that will result in any form of environmental harm. Id.

    The HEAL Act falls short, however, in that it exempts any forest practice permits or the sale of timber from state lands and state forests from requiring the performance of any environmental justice analysis. Id. at § 14(9). This exemption is problematic because of the sheer number of environmental problems that can be created from the issuance of forest practice permits or the sale of public timber to logging companies. For example, in preparation for cutting, timber companies often apply pesticides and herbicides to the forest to eliminate undergrowth. The communities nearby the logging operations are often exposed to these pesticides and herbicides, causing health problems. Rebecca Claren, Timberland Herbicide Spraying Sickens a Community, High Country News (Nov. 10, 2014). By exempting timber sales and forest practice permits, the state has essentially allowed the timber industry to continue to expose low-income and minority communities to the negative environmental effects of timber practices without much recourse for the affected communities.

    The decision to exempt the timber industry from the HEAL Act is motivated exclusively by economic concerns. In the Senate Bill Report from the Ways and Means Committee on February 19, 2021, the committee voiced its concerns as to how the bill would affect the timber industry and the state as a whole. State of Wa. Final Bill Report at 10 (2021). The committee noted that land trusts generate approximately $250 million annually from timber harvest alone and that its primary concern with the bill was that if state forests and timber sales were required to perform an environmental justice analysis before each sale, there would be significant increases in cost and delays in the time it would take to approve these sales. State of Wa. Senate Bill Report SB 5141, as reported by Senate Committee on Environment, Energy, and Technology, Feb. 9, 2021. Further, in the House Bill Report E2SSB 5141, the House noted that Washington counties rely heavily on the funding that comes from forestlands held in trust. State of Wa. Final Bill Report at 10. Out of concern for the “rural and poor” counties who rely on the funding from timber harvests in state forestlands held in trust, the requirement that the Department of Natural Resources engage in an environmental justice assessment was eliminated to prevent the delay of the distribution of these funds. Id. It is counterintuitive for the State Legislature to have eliminated environmental justice analysis requirement. While in the short term, rural counties will continue to benefit from an expedited time line in which they receive funds related to the harvest of timber from state forestlands, in the long term, the lack of environmental justice assessments will continue to mean inequitable exposure to pollutants and deforestation for the already overburdened environmental justice communities in these counties.

    By prioritizing timber interests over the health of overburdened communities, the HEAL Act contradicts its primary goal of “reducing environmental and health disparities and improving the health of all Washington State residents.” Healthy Environment for All Act, E2SSB 5141.SL, 67th Legis. § (1) (2021). By exempting forest practice permits and timber sales, the State of Washington makes it clear that only certain impacts on certain communities matter. This omission will continue to expose rural and frontline communities to disproportionate harms from the logging of timber.

    However, despite being exempted from environmental justice analysis requirement, the Department of Natural Resources, which manages all state forest lands and issues all state forest practice permits and administers timber sales, is still required to abide by the rest of the HEAL Act. Id. at § (7). This requirement will still ensure that the Department of Natural Resources must engage in significant environmental justice work in many other important areas. 

    First, under section 12, the Department of Natural Resources is required to include an environmental justice implementation plan within its overall strategic plan. Id. at § (12). The Department is required to describe how it will apply the principles of environmental justice into its activities. Id. at § (12)(a). Further, the Department must be guided by these plans in the way it implements its objectives as an agency. Id. at § 12. While the issuance of forest practice permits and timber sales are exempted, the agency must still incorporate environmental justice principles into its overall plans, which would include where it plans to allow logging activities. Id. These plans are required to include specific goals and actions the agency will take to reduce environmental and health disparities. Id. at § 12(a). The agency is also required to include metrics that will track and measure the agency’s progress in implementing those goals and actions. Id. at § 12(b).

    In terms of forest management, the most important provision of the HEAL Act other than section 12 is section 13, which implements requirements for equitable community engagement and public participation. Id. at § 13. Section 13 requires that the Department of Natural Resources must create and adopt a community engagement plan detailing how the Department will engage with overburdened communities and vulnerable populations as it evaluates both new and existing activities and programs under its jurisdiction. Id. In this community engagement plan, the Department of Natural Resources must explain how it will identify and prioritize overburdened communities, what best practices it will use to overcome certain barriers to engaging these populations in a meaningful dialogue, how the agency will use special screening tools such as the Washington Environmental Health Disparities Map to overcome those barriers to participation, and how it will incorporate new processes that will facilitate and include members of the community affected by agency action such as childcare and reimbursement for travel and other expenses necessary. Id. at §§ 13(a)-(d). These requirements are a large step forward and will help eliminate many barriers that prevent members of low-income, minority, and overburdened communities from participating in siting and other decisions. These requirements are designed to engage communities in bureaucratic decision making at the state level in a way that the communities have never been able to before.

    While the HEAL Act has strong mechanisms that provide for the engagement of the overburdened communities that will experience many of the adverse effects of logging, the exemption from performing environmental justice assessments essentially renders the Act a procedural law similar to the federal National Environmental Policy Act. Id. at § 14. By eliminating the environmental justice assessment requirement, the Department of Natural Resources must only create a plan that is supposed to take environmental justice concerns into account and then provide for robust participation from the communities involved. Id. at § 13. Eliminating the environmental justice assessment takes the teeth out of the law and will allow the Department of Natural Resources to continue to allow logging that will negatively impact already overburdened communities so long as it follows the necessary procedures for community engagement.

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