DAC Version 2 Update: State Laws and Policies Regarding the Definition of Disadvantaged Communities and Prioritization of Funding to DACs - Instructions

Project Overview:

In September 2022, Lawyers for Good Government (“L4GG”) published the Disadvantaged Communities (DAC) Report.  This report is a 50-state survey that also includes Washington, DC and Puerto Rico.  This area of the law is rapidly shifting at the state level and new laws are being proposed annually.  In December 2022, the Council of Environmental Quality (“CEQ”) issued a revised federal map of DACs (the Climate and Economic Justice Screening Tool or CEJST) for purposes of implementing President Biden’s Justice40 initiative (further defined below).  Accordingly, it is time for L4GG to update the report by checking to make sure the information that is already published is accurate, addressing the revised CEJST Map, and by checking for new legislative updates with a few additional research questions. 

This project is separated into two parts: 

(1) Part 1 is a review and redline of the existing DAC Report for accuracy for each existing state, Washington DC, and Puerto Rico; and 

(2) Part 2 is additional research (between 5 and 17 questions, depending on the situation) on the topics of environmental justice offices in each state; climate equity laws; Justice40 implementation; and the states’ Environmental Justice map (if it has one). 

SUBSTANTIVE BACKGROUND INFORMATION FOR PARTS 1 and 2:

By Executive Order 14008 in January 2021, the Biden Administration launched the Justice40 Initiative (“J40”) to lessen inequality by committing to provide at least 40% of the benefits from all federal investments in climate, clean energy, water, and infrastructure to disadvantaged communities (“DACs”).  (See the DAC Report and this White House Link for more information regarding J40.) We strongly urge you to review the written portion of the DAC Report in addition to the State Level Findings to understand the background, context, and import of correctly defining DACs. In February 2022, the White House released its updated Climate and Economic Justice Screening Tool to map DACs, which was revised in December 2022. (“CEJST”).  CEJST was developed in consultation with states that have developed their own similar screening tools for identifying DACs.  CEJST uses census tracts and requires a tract to hit at least one socioeconomic factor and one environmental or climate indicator to be considered a DAC. CEJST identifies DACs based on various socioeconomic, environmental, and climate factors.  See both the DAC Report and CEJST for additional guidance on the methodology CEQ used to identify DACs. 

With respect to water infrastructure, IIJA requires that 49% of funds provided through the Drinking Water State Revolving Fund (“DWSRF”) must be provided as grants or forgivable loans to DACs.  As a result of this mandate, EPA has published some helpful guidance related to the definition of DACs in connection with the DWSRF.  The EPA guidance recommends that states identify a definition for DACs in their water infrastructure Intended Use Plans (“IUP”) and suggests that EPA could potentially withhold DWSRF funding until IUPs (and DAC definitions) are considered sufficient.  Accordingly, many states may have established a definition for DACs in the state water code for this purpose.  NOTE:  The EPA guidance and state level definitions for DACs in the drinking water context cannot be automatically applied to the climate and clean energy space, however, these definitions are relevant to the analysis. Two of the research questions in DAC 1 included identifying drinking and clean water DAC definitions to provide both context and potential model policies to consider in  state-level climate equity definitions.   

State law on equity, climate justice, and the definition of what it means to be a DAC has been developing for several years. DACs may be defined by states through a number of ways: 

(1) State Statutes; 

(2) Administrative Rules aka ”state regulations” or “secondary legislation”; 

(3) Formal Policy Documents (e.g., SRF Intended Use Plan (“IUP”)); 

(4) Informal Guidance; and 

(5) Agency Practices. 

As a state statute, the definition may appear in different locations depending on its application. For example, the DAC definition for drinking water may appear in the State Water Code, Natural Resources Code, drinking water regulations, or the state’s IUP. Whereas the criteria for DACs in New York is included in New York’s Environmental Conservation Law. The most relevant definition for clean energy and climate change will be in a state law related to environmental law, air quality, and climate change. However, if a state does not have a DAC definition in this space, definitions in an adjacent field (i.e. drinking water) will become very relevant to the analysis. 

States also define DACs using criteria and mapping tools. The most popular type of tool screens geographies using an index of pollution exposure plus health and socioeconomic vulnerability. Examples include Maryland’s MD EJScreen tool and the California Communities Environmental Health Screening Tool (also known as “CalEnviro-Screen”, or “CES”), the latter being the longest-running of its type in the country and which is used to identify disadvantaged communities for the purpose of targeting investments.

Instructions for Participating Attorneys:

Updating the DAC Report should be done in two parts: 

  1. For Part 1, review the existing State Level Findings Page in the DAC Report  for your state that was published in September 2022.  State Level Findings for each state can be found here.  The goal of this step is to review the existing DAC Report findings for your assigned state and to make sure that each sentence is still legally accurate and that the citations are still valid.  To do this, please copy and paste the state profile into a word document or convert it to a PDF (just make sure the hyperlinks also convert), and then perform a detailed review of each statement to ensure it is still accurate and suggest any changes in a Word or PDF redline as needed. Please also verify that the links are up-to-date, correct, and still work. When you are finished with the redline, you will upload it to the form as part of Part 2. To confirm whether any new Justice40 legislation has been proposed that is not identified on the existing state level findings, please use Capitol Watch (described below).

  2. For Part 2, fill out this online form. We recommend using Capitol Watch with Westlaw for any questions related to whether there has been new or proposed state level legislation.  Don’t forget to attach your redline edits from Part 1. Make sure you cite  to Justia using Justia’s suggested universal citation, when possible, for state legislation. See here for a link to an example of Justia’s Universal Citation. When citing to proposed legislation, please cite to the state legislature’s website, because Justia cannot be used to cite to proposed legislation. 

  3. Capitol Watch: A portion of questions in both Parts 1 and 2 may be answered using Capitol Watch, an online tool provided by Westlaw for tracking legislation. Here are some suggested search terms to use in Capitol Watch that might help answer the legislation-related questions: 

    a. Environmental Justice Office search terms: (1) “Environmental justice”; (2) “environmental justice office”; (3) “equity office”; or (4) “environmental equity office”

    b. Climate equity search terms: (1) “climate equity”; (2) “climate justice”; (3) “environmental justice”; (4) “climate protection”

    c. Justice40 search terms: (1) “Justice40”; (2) “J40”; (3) “Justice 40”; (4) “40%”; (5) “forty percent”

    Note: Lexis Advance offers a similar search option, but it does not have a specific name. 

d. General Hot Topics - Please also complete a general Google Search to see whether there are any hot news topics being raised in this particular state having to do with recent climate legislation or agency guidance.  If you identify significant news in your state related to climate equity policy that is not addressed by one of the questions in the Part 2 Form - please enter it into the final question titled “Is there anything else you think we should know?” with a link for reference. 

L4GG strongly prefers that a single attorney be responsible for filling out one form per state.

We recommend that during the research process, you gather your findings in a Word or Google document; once you have completed your research, please copy/paste your findings into the corresponding fields using this online form.  

Please include citations and links for your answers when possible.

Questions? Email Lthomson@L4GG.org.

Tools:

RESEARCH QUESTIONS:

(PLEASE REMEMBER TO INCLUDE CITATIONS AND LINKS WHEN AVAILABLE FOR EACH OF YOUR ANSWERS)

For your assigned state, please answer the following questions:

  • Does an environmental justice office already exist in this state?

    • If yes, include the name of the office and a summary of the law that was passed to create the office.

    • If no, since January 1, 2021, has the state’s legislature proposed or passed any laws to create an environmental justice office?

  • Since January 1, 2021, has the state’s legislature proposed or passed any laws relating to climate equity?

    • If yes, provide the names of and a summary of the laws that were proposed and passed.

    • If no, provide the names of and a summary of the bills that were proposed and not passed (if any).

  • Since January 1, 2021, has the state's legislature proposed or passed any laws related to the implementation of Justice40?

    • If yes, provide the names of and a summary of the laws that were proposed and passed.

    • If no, provide the names of and a summary of the names of the laws that were proposed and not passed (if any).

  • Since January 1, 2021, have any state agencies proposed or passed any regulations relating to climate equity?

    • If yes, provide the names of and a summary of the regulations that were proposed and passed.

    • If no, provide the names of and a summary of the regulations that were proposed and not passed (if any).

  • Since January 1, 2021, have any state agencies proposed or passed any regulations related to the implementation of Justice40?

    • If yes, provide the names of and a summary of the regulations that were proposed and passed.

    • If no, provide the names of and a summary of the regulations that were proposed and not passed (if any).

  • Does this state have its own environmental justice map?

    • If yes, provide the name of the state map and a link to the state map.

    • If yes, list the metrics in the state map (look at the metrics in DAC Report Version 1 here https://www.lawyersforgoodgovernment.org/dac-report).

    • If yes, list any metrics that the state map uses that the Federal Climate and Economic Justice Screening Tool does not use.

    • If yes, list any metrics that the Federal Climate and Economic Justice Screening Tool uses that the state map does not use.

Once you have completed your research, please submit your responses (with citations/links) using this online form. Thank you for contributing to this important project.