State Laws and Policies Regarding the Definition of Disadvantaged Communities and Prioritization of Funding to DACs - Instructions

Project Overview:

By Executive Order 14008 in January 2021, the Biden Administration launched the Justice40 Initiative (“J40”) to lessen inequality by committing to providing at least 40% of the benefits from all federal investments in climate, clean energy, water infrastructure, and other programs, to disadvantaged communities (“DACs”). The Administration issued interim guidance on July 20, 2021 regarding the approach to implementation for J40. Biden then committed to implementing J40 to the entire $1.2 Trillion authorized under the Infrastructure Investment and Jobs Act (“IIJA”) in November 2021, although the exact method of implementation is currently being fleshed out by individual federal agencies responsible for distributing IIJA funds. 

In February 2022, the White House released its interim Climate and Economic Justice Screening Tool to map DACs. (“Fed Mapping Tool”).  The Fed Mapping Tool was developed in  consultation with states that have developed their own similar screening tools for identifying DACs.  The federal tool uses census tracts and requires a tract to hit at least one socioeconomic factor and one environmental or climate indicator, as defined further below, to be considered a DAC. The Fed Mapping Tool is currently in beta testing form, with public comment period closing May 25, 2022.  A final Fed Mapping Tool will be released once all comments have been addressed.  Note that the Fed Mapping Tool specifically excludes the question of race or ethnicity from the mapping criteria, which has become a hotly contested issue.

Under the current Interim Guidance, a “community” is defined as: “either a group of individuals living in geographic proximity to one another, or a geographically dispersed set of individuals (such as migrant workers or Native Americans), where either type of group experiences common conditions.”  To be  “Disadvantaged” a community must meet at least one socioeconomic factor and one environmental or climate indicator.   

The federal Socioeconomic Factors involve two questions:

  • whether a community has 65%+ percentile for low income and 

  • whether  80%+ people over 15 are not enrolled in higher education.  

Either one of these must exist to qualify as a DAC under the Fed Mapping Tool.

The federal guidance Environmental and Climate Indicators include: 

  • Climate Change (90%+ percentile for expected ag, building or population loss rate) 

  • Clean Energy & Energy Efficiency (90th+ percentile for energy burden or PM2.5 in the air)

  • Clean Transit (90th+ percentile for diesel particulate matter or for traffic proximity and volume)

  • Affordable and Sustainable Housing (90th+ percentile for lead paint and below 90th percentile for median home value or housing cost burden) 

  • Reduction and Remediation of Legacy Pollution (90th+ percentile for proximity to hazardous waste facilities)

  • Critical Clean Water and Wastewater Infrastructure (90th+ percentile for wastewater discharge)

  • Health Burdens (90th+ percentile for asthma, diabetes, heart disease, low life expectancy)

  • Training and Workforce Development (90th+ percentile for low median income as a percentage of area median income and related parameters and at least 10% of adults 25 or older have not attained a high school diploma)

Review the Fed Mapping Tool for additional guidance on the federal criteria.

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 below include identifying drinking and clean water DAC definitions to provide both context and potential model policies to incorporate into a state-level climate equity definition.   

State law on equity, climate justice, and the definition of what it means to be a DAC has been developing for several years. In 2021, states considered at least 150 bills related to environmental justice. Some states have established offices and commissions to define terms and engage with the community, and some have refined existing laws to identify underserved areas. States are also evaluating the impacts of industrial facilities and land development projects, and legislation has promoted the prioritization of community engagement in decision making.  For example, in 2019, NY passed the Climate Leadership and Community Protection Act (CLCPA 2019), which established a working group to define criteria for DACs. The state also passed its own version of J40 through the Climate Mobilization Act, committing 40% of investments (not benefits) to DACs. NY worked closely with the Biden Administration in the development of the Fed Mapping Tool and is a good example of a state-level policy that could become a model policy for other states.

DACs may be defined by states in 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; (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 intended use plan. Whereas the criteria for DACs in NY is included in NY’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. For these reasons, the questions below ask you to research several different state codes to make sure we provide a comprehensive understanding of how the state defines DACs in a number of contexts.

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 (CalEnviro-Screen, or CES), the latter being the longest-running of its type in the country and which is used to identify disadvantaged communi-ties for the purpose of targeting investments.

Below we have asked a number of criteria questions to help flesh out the indicators used by a state, how those indicators may differ from the Fed Mapping Tool, and to identify potential model policies.  One common theme throughout the indicators will be clarifying whether the standard involves a flat threshold or allows for a sliding scale (like a point system) to help compare the difference in severity between DACs in a state.

All of this research will be summarized into 1 report with a lengthy appendix and a model policy. The report will be used by state and local administrators to better understand their respective state rules and by L4GG and partner nonprofits (NRDC, EPIC, Policy Link) to identify model policies and important advocacy entry points. The research will also be incorporated into an equity webinar that L4GG will be presenting (with the help of interested Orrick volunteers) in August/September to state and local administrators. Our overall goal is to provide helpful guidance on equity issues that results in the best use of IIJA funds to implement a just transition to a clean economy. With $1.2Trillion at stake, it has never been more important to implement a new framework for climate equity. Your research is a critical step in this process.

Instructions for Participating Attorneys:

A number of states have established a disadvantaged community (“DAC”) definition in the context of climate law and even more states have established DAC definitions in the context of the Drinking Water State Revolving Fund. This project will verify the specific DAC definitions and mapping tools that exist in each state related to climate and water law. The list will include details regarding the criteria used in each state for DACs, how the definition and mapping compares to the federal screening tool, and whether the agencies/organizations working on climate justice. This report will support an equity webinar that L4GG will provide to state and local administrators, as well as NGOs, on the best practices for implementing Biden’s J40 Principles. It also can be used by advocates or legislators to draft legislation, formal and informal agency guidance regarding the definition of DACs and equity frameworks.

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 support@L4GG.org.

Tools:

  • Your Westlaw or Lexis account, or your preferred tool for researching a state’s code and case law.

  • Justia (a publicly available resource of the state codes of each jurisdiction, so that legislators and advocates can quickly view the state code without hitting a Westlaw or Lexis paywall, however it does not include Westlaw or Lexis’s keycite or red flags to show if there is superseding case law)

  • Google Scholar—Case Law (a publicly available resource of federal and state case law, so that legislators and advocates can quickly view the state code without hitting a Westlaw or Lexis paywall, however it does not include Westlaw or Lexis’s keycite or red flags to show if there is superseding case law)

  • Cornell LII—State Regulations (a publicly available resource of state regulations, so that legislators and advocates can quickly view the state regulations without hitting a Westlaw or Lexis paywall, however it does not include Westlaw or Lexis’s keycite or red flags to show if there is superseding law)

  • Existing Research/Background Documents That May Provide Helpful Background About Your State:

RESEARCH QUESTIONS:

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

For your assigned state, please answer the questions listed in this document (for review only).

During the research process, you should gather your findings in a Word or separate Google document.

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.