Aaron Wernham, director of the Health Impact Project discusses the benefits of health impact assessments in this edition of Governing.More info
IV. Analysis: Key Themes Concerning Legal Authority to Conduct HIAs in Non-Health Sectors
Other jurisdictions' laws relate to specific policy areas. The Navajo Nation authorizes and directs the Department of Diné Education to determine the impact on students of educational programs in multiple areas of concern, including social and economic variables and health and safety relevant to the educational situation of Navajo students. An ordinance passed by Minneapolis directs the community planning and economic development department to conduct an assessment of the impact of electronic and digital billboards on the public health, safety, and welfare of its citizens, and to then propose zoning amendments or other regulations deemed necessary and advisable.
A. Triggers for Increased Use of HIAs under Existing Legal Authority
As discussed in Part III, most of the legal provisions in the first category (HIAs are legally required or facilitated) consist of laws that facilitate, rather than specifically require, HIAs. Though these laws may not require HIAs or refer to them by name, they create pathways for and support the use of HIAs. Laws that most clearly facilitate HIAs feature two key criteria:
- They refer to a broad range or description of health impacts, such as effects on public health, safety, general welfare, environmental health, health disparities, social or economic well-being, or effects that are borne disproportionately by vulnerable populations.
- They call for studies or assessments that are used to inform public policy, programs, projects, regulations, or decision making.
These two features are highly consistent with HIA methodology that incorporates a multidisciplinary approach to evaluating a wide range of health effects beyond, for example, the biophysical effects from exposure to hazardous materials (which is more common in HRAs). HIAs are used primarily to inform policy or programmatic decisions, which are furthered by laws that call for assessments to be conducted prospectively or periodically to evaluate programs and policies prior to, or at least as part of, their implementation. In contrast, an HA that is conducted primarily in response to a specific event (e.g., remedial investigations for toxic contamination sites or assessments to allocate responsibility for environmental cleanup) is less reflective of HIAs.
One other feature of HIAs, the solicitation of public input, was not seen as frequently among these legal provisions, except for HIAs facilitated by NEPA or state NEPAs, which call for public input through the EIS process (as discussed further in Part IV.E).
Not all laws that facilitate HIAs are equally strong. Some provisions merely allocate funding for or authorize an agency or research institution to conduct studies or evaluations of health impacts of programs or policies, without specifically stating that results will be used to inform further policy or programmatic decisions. Examples of this type of provision include: (1) the Illinois Food and Agricultural Research Act, which funds universities to investigate environmental, health, social, economic, and natural resource implications of food and agriculture enterprises, and (2) an Oregon statute authorizing the state's health authority to survey and investigate how the production, processing, or distribution of agriculture products may affect the public's health. These types of laws may still facilitate HIAs on the premise that study results are intended to be used to inform policy or programs, even if it is not explicitly stated. Moreover, HIAs may offer an effective way to implement the aims and purposes of these laws.
Other laws meet the two criteria but are weaker candidates for furthering the use of HIAs because they are limited to a particular program or are intended to address a one-time occurrence. Transportation laws in California (requiring an HA of bus fueling stations in San Bernardino County) and Pennsylvania (requiring an HA in the development of a Clean Vehicles Program) are illustrative. Once these assessments are complete, the provision does not authorize further use of HIA-type assessments for other programs. Though limited in duration and scope, these laws may serve as examples for future legislative or regulatory provisions requiring or facilitating HIAs.
B. HIAs under Federal and State Environmental Statutes
NEPA and certain state NEPAs provide broad legal support for the use of HIAs. NEPA applies expansively to federally funded projects, federal agency policy decisions, and actions relating to federal land.78 NEPA's legal requirements derive from statutory language as well as regulations issued by the Council on Environmental Quality (CEQ), which oversees the implementation of NEPA by federal agencies.79 Although in practice the implementation of NEPA's mandate to assess the effects of proposed agency actions has traditionally focused mainly on environmental impacts, NEPA provides a strong legal basis for the inclusion of health effects, and it can and is being used as a legal vehicle for the use of HIAs.
NEPA's potential as a legal platform to facilitate the use of HIAs lies primarily in its mandate that an EIS be prepared whenever a federal agency takes "major Federal actions significantly affecting the quality of the human environment."In 2007, an HIA was conducted within the legal framework of NEPA to inform the Bureau of Land Management's decision to expand the license of a major oil development project affecting the Inupiat communities in the North Slope Borough, particularly residents of Nuiqsut, Alaska. The community relied on two provisions of NEPA to facilitate the integration of an HIA into an EIS: (1) CEQ regulations requiring the agency to respond to substantive public comments on health concerns, and (2) NEPA's stated purpose and language embracing consideration of health impacts.
The Inupiat community members raised concerns that an expanded oil lease could exacerbate local health problems, including asthma and drug and alcohol use, and could adversely affect the community's supply of locally harvested foods. These concerns, however, were not initially addressed with a robust analysis of available public health data. CEQ regulations require an agency preparing an EIS to respond to all comments by modifying the proposed action or its analysis, developing new alternatives, or explaining why the agency does not need to respond to the comments. Where significant public comments involve health impacts, this regulation requires some health impact analysis, and potentially an HIA.
In addition, advocates in the North Slope Borough—the regional government—argued that health impacts fall within the scope of impacts under NEPA's statutory purposes. NEPA mentions "health" six times, notably in its purpose "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man" and in its intent to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings." The Inupiat community and its advocates successfully argued that HIA is functionally equivalent to an adequate health analysis as required by NEPA and the applicable CEQ regulations, and should therefore be included in the EIS. To determine if an agency action is "significant" under NEPA (and thus requires an EIS), an agency will often first perform a shorter environmental assessment.89 Approximately 50,000 environmental assessments are produced each year, compared to 400 to 600 EISs.90 Although environmental assessments have generally not included HIAs, these "mini-EISs" provide a possible vehicle for HIA use. CEQ regulates environmental assessments less thoroughly than EISs and only requires that agencies involve "applicants, and the public, to the extent practicable." However, environmental assessments are meant to further the same NEPA purpose of public notice and protection that applies to an EIS.
Arguments similar to that advanced in Nuiqsut, Alaska, can be proffered to include an HIA in EISs and environmental assessments in other jurisdictions. Eight of the 20 states reviewed for our study (California, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, and Washington) have adopted NEPA-like statutes that require an EIS for state actions that significantly affect the environment, and include an opportunity for the public to review and comment on proposals. While local interpretations vary, states generally follow federal interpretations of NEPA when applying their state versions.
C. Moving Beyond HRAs to HIAs
The second category of legal interpretation, demarcated by yellow in Tables 1 and 2, includes laws that call for other types of HAs, namely HRAs or HESs. As noted in Part II.B, HRAs refer to a specific methodology established by EPA and others for assessing risks to human health from exposure to hazardous substances and are thus narrower than HIAs. As a result, many laws addressing hazardous substances or pollution implicate HRAs rather than HIAs. To the extent that a legal provision specifically references an HRA or HRA-like methodology or refers only to the health impacts resulting from exposure to hazardous substances, it may not facilitate the use of broader HIAs.
For example, a regulation promulgated under the CAA requires manufacturers to conduct health effects assessments (HEAs) on motor vehicle fuel and additives. HEAs are defined as "supplemental studies designed to determine the potential for reproductive/teratologic, carcinogenic, mutagenic, and neurotoxic health effect outcomes from vehicle/engine emission exposures, which may be required before registration of a fuel or fuel additive can occur." By specifically enumerating the biophysical health effects to be measured, this law prescribes a narrow type of HA. While these types of assessments may further similar objectives as an HIA, namely improving policies that impact human health, they are not HIAs because of their limited breadth. It is difficult to assert legally that broader HIAs are required by these types of laws.
In contrast, some laws arguably may authorize assessments of other non-biophysical health impacts through HIAs. In Arizona, county air pollution programs require owners of new sources of air pollutants to conduct risk management analyses that include HAs and health studies, which are then reported to county boards of supervisors. Although HAs in this law likely refer to HRAs (because HRAs are typically used to assess air pollution and because they call for analysis of risk management), the additional reference to "health studies" may be interpreted broadly by courts. Consistent with judicial principles of statutory interpretation, all statutes should be given effect and not be interpreted as superfluous or inoperative. Thus, if the statute-mandated HA is an HRA, the additional "health study" referred to in the Arizona law must be something else—arguably an HIA. Under this interpretation, other types of health impacts may be evaluated, such as the effect that the source of air pollution may have on traffic collisions due to reduced visibility, ability of nearby residents to engage in recreational activities outdoors, or health impacts in terms of lost days of school or work due to increased incidence of respiratory ailments.
Whether laws requiring HAs may support the use of HIAs depends on their breadth as well as the knowledge and willingness of agency actors and stakeholders to enhance the scope of resulting HAs. If challenged, a plausible claim may be made that the broad language of the provision shows the intent of the legislature or regulatory body to not restrict studies to narrow HAs, but rather to allow more expansive and thorough HIAs.
D. The Role of HAs as Evidence in Litigation
Most available case law involves HAs, not HIAs. In several cases, courts either ordered that HAs be performed or admitted their results or similar studies into evidence. HAs are admitted into evidence in litigation for multiple reasons. They may be used offensively (e.g., to challenge a proposed project or action or allocate responsibility for environmental cleanup) or defensively (e.g., to overcome a challenge to a proposed project or action by showing that negative health effects will not occur). In California, an HRA was admitted defensively as evidence to support a school district's decision to construct a high school to overcome a challenge by the city alleging the planned school site would not meet environmental and safety standards. Although not always persuasive in implementing changes to policies or programs under review (as seen in Case Study 3), an HA may be used to either challenge or defend policies and programs.
A deficient HA can result in a court ordering further studies before issuance or denial of a permit. The lack of an HA may be used offensively against alleged polluters who fail to meet their burden of proving the costs of pollution abatement. These and other cases illustrate how a properly conducted HA can be a powerful tool for justifying specific policies or decisions that impact public health. Conversely, failure to conduct an appropriate HA may be used by courts to overturn governmental agencies' decisions. HAs can also be used as a tool to demonstrate minimum compliance with health and safety requirements, and thus fall short of the goals of promoting broader consideration of health impacts.
Similar outcomes are expected as HIAs may be admitted into evidence as they become more prevalent. HIAs may also be used to either challenge or defend policy, programmatic, or other decisions that the HIA was intended to inform.
E. Federal Preemption of Tribal, State, or Local Laws Authorizing HAs and HIAs
In a few instances identified in Table 2 where HAs were legally prohibited, the HA required by a state or local law was preempted by higher law. Tribal, state, or local laws requiring or facilitating HAs or HIAs may be subject to legal challenges under the doctrine of preemption. Preemption refers to ways in which federal law may override or negate conflicting state or local laws. Though subject to considerable interpretation, federal preemption may occur because a state or local law directly conflicts with a federal legal requirement or because federal law so thoroughly occupies a field that state or local laws are subsumed. This latter example, known as field preemption, is common concerning nuclear power and wastes where the legal authority of Congress is encompassing and national uniformity is essential. Just as state or local laws may be preempted by federal laws, local laws may be preempted by state laws in any jurisdiction, subject to the degree to which the state assigns local governments authority to govern in specific areas, including public health.
In a number of cases, state or local requirements to conduct HAs were prohibited due to federal preemption. For example, in a 2007 California case, local regulations requiring railroads to provide information about the health risks arising out of the railroads' local operations were preempted by the Interstate Commerce Commission Termination Act of 1995, which expressly preempts state and local regulation of the railroads. The federal Atomic Energy Act preempts all state laws (not just those in conflict) relating to nuclear safety for nuclear power facilities that may include any tribal, state, or local regulation requiring an HIA to assess safety issues related to nuclear power plants. A federal district court in 1991 restricted a tribal entity in Minnesota from imposing more stringent regulations or requiring an HA on the transport of radioactive material to and from a nuclear power facility.108 State and local government action, while not uniformly preempted, may be restricted in certain circumstances, such as their attempts to implement provisions relating to pollutants that the federal government has chosen to regulate. A practical effect of federal preemption is that tribal, state, and local governments may be unable to require or facilitate HIAs in areas where the federal government retains the authority to regulate. Local governments must ensure that their laws requiring or facilitating HIAs do not conflict with state laws.
F. Forging Ahead Despite Legal Gaps: HIAs Concerning Zoning and the Built Environment
While legal support for HIAs is a pervasive theme throughout this report, HIAs in the United States have most often been undertaken without relying on specific legal requirements or authorization. General legal authorities under federal, tribal, state, and local laws to protect the public's health, control communicable and chronic diseases, or abate public or private nuisances that harm individual health may undergird efforts by governmental or private-sector actors to study, evaluate, or assess health effects. Continued calls by legislators, executive agency officials, community members, and other stakeholders for enhanced consideration of health effects in making new policies or programs naturally support conducting HIAs. In recognition of this trend, public health advocates and legal actors must advance the utility of HIAs in all places where the law requires affirmative HAs, empirically documented proof of efficacy, or meaningful interventions to protect the public's health.
One of the most extensive uses of HIAs nationally concerns land use planning and zoning and related decision making as it affects the built environment. The term "built environment" refers to human-made surroundings, resources, buildings, and infrastructure designed to support human activity. In their 2008 review of 27 case studies involving HIAs from 1999 to 2007 in the United States, 12 (44 percent) of the HIAs documented by Dannenberg and colleagues concern zoning adjustments or other decisions that affect built environments. Many HIAs related to the built environment have been completed in the United States, as detailed on the Health Impact Project's Web site. Examples are numerous and include: (1) an assessment outside Oakland, California, of a proposed new use of an area under the elevated tracks of a mass transit system as a future walking/biking trail, and (2) reliance on an HIA to redesign core urban areas of transit in Atlanta, Georgia.
Despite the common application of HIAs concerning policies or programs in zoning and the built environment, there are few explicit legal requirements noted in the study for their performance and only minimal references to laws that may facilitate their use in the jurisdictions reviewed. Although zoning and land use laws reviewed for this report regularly refer to "health" as a basis for key decisions, none required or facilitated HIAs. Rather, HIAs in these settings are often carried out through new collaborations between health experts and planning officials who recognize potential benefits of including a more robust and comprehensive consideration of health in the planning process. As discussed in Case Study 1 and Part IV.B, judicial interpretations of state NEPA laws may find that some assessments of health impacts be considered as part of the environmental assessment process required for certain urban planning and zoning decisions. However, these decisions do not expressly require that HIAs be conducted. Thus, to the extent that HIAs are used to assess health impacts in matters related to zoning or the built environment, in many cases it appears that it is not pursuant to explicit legal requirements as much as in furtherance of general authority to consider health, public health, or related human or environmental impacts of land use decisions.
However, there may be other reasons that explain the relative absence of zoning and land use policies from our sample. First, our study was limited in the number of jurisdictions studied. Zoning issues are inherently local in nature and are subject to local ordinance requirements. Although our study included a representative sample of 10 localities, this small group of municipalities may not reflect trends in thousands of other localities that may expressly require HIAs via ordinance or zoning regulation. Second, as per the court's findings in Case Study 1, this is one area of policy in which general legal authority to conduct HAs may increasingly be interpreted by local zoning boards and other government officials as necessitating a broad consideration of health, such as can be accomplished through an HIA.
Finally, programs and policies concerning the built environment invariably are tied to the natural environment. Our study explicitly examined relevant environmental laws but did not attempt to delineate how extensively these provisions may also apply to policies concerning the built environment. For example, New York's SEQRA was clearly relied upon by the court in requiring more intense review of health impacts underlying a zoning issue but is classified in our research as an environmental law.