Aaron Wernham, director of the Health Impact Project discusses the benefits of health impact assessments in this edition of Governing.More info
III. Findings: Legal Provisions Implicating HIAs in Select Jurisdictions
The focus of our findings is on those laws noted in the first category (HIAs are legally required or facilitated) because they provide the strongest legal basis to support the use of HIAs. Very few laws specifically require the conduct of HIAs (identified in only four instances among the laws in the 36 jurisdictions selected for this study). As a result, the majority of legal provisions in this category facilitate the use of HIAs. These laws create pathways for HIAs, even if they do not explicitly refer to HIAs by name. Laws that most clearly facilitate HIAs generally call for:
- an assessment of a broad range or description of health impacts (e.g., effects on public health, safety, general welfare, environmental health, health disparities, vulnerable populations, or social or economic well-being)
- studies or assessments that are used to inform public policy, programs, projects, regulations, or decision making.
Additional discussion of legal provisions that contemplate the conduct of other types of HAs and how these provisions may support the use of HIAs in specific circumstances is analyzed in Part IV.D. Laws that prohibit HAs, though limited, are discussed in Part IV.E.
A. Environment and Energy
The environment and energy subject area contained the most legal provisions implicating the use of HIAs of all the subject areas studied in this report. This is unsurprising given that environmental laws and policies regulating energy sources, uses, and extraction are proliferate. In addition, HIAs have historically drawn from the established practice of environmental impact statements (EIS).19 As depicted in Figure 4, among the 36 jurisdictions reviewed, 22 (61 percent) featured laws that either require or facilitate the conduct of an HIA within this subject area.
1. Legal Provisions Requiring HIAs
HIAs are specifically required by law in the environment and energy subject area in only one jurisdiction—the state of Washington. These regulations require that applicants seeking approval to construct new or modified units emitting toxic air pollution who cannot demonstrate compliance with Washington's ambient air impact requirements at an acceptable level must petition the Washington State Department of Ecology to determine a means of compliance. The petition must include an HIA that presents data about the new or modified pollution source and its built and natural environment. Despite the specific use of the term HIA, this regulation appears to define HIAs similarly to an HRA, including requirements to provide a site description, toxic air pollutant concentrations and toxicity, identification of exposed populations, and an exposure assessment. These similarities may be because the primary health concern in the area of air quality regulation is exposure to pollution. However, since Washington's definition of HIAs is not limited to exposure risk assessment and refers to the built and natural environment, any required HIAs could also include health effects related to the social, economic, or environmental impacts of the air pollution emitter.
Figure 4. Legally Require or Facilitate HIAs—Environment and Energy
2. Legal Provisions Facilitating HIAs
While most legal provisions in this area do not specifically refer to HIAs, they prescribe studies of health impacts that are broad enough to facilitate the conduct of HIAs. Consistent with the purposes of HIAs, many of these laws contemplate that the health impact study conducted would inform policy, licensing, or regulatory decision making. Several examples illustrate these findings. In California, the State Energy Resources Conservation and Development Commission must conduct assessments of all aspects of energy supply, production, transport, distribution, and prices to develop energy policies no less than once every two years.21 The assessments must account for impacts on public health and safety, the state's economy, resources, and the environment. Similarly, New York's State Energy Planning Board's energy plan must include an assessment of the plan's impact upon economic development, health, safety and welfare, environmental quality, and energy costs for consumers generally and low-income consumers specifically.
Several states (Colorado, Illinois, Pennsylvania, Texas) and the federal government require a broad assessment of the radiological and non radiological health impacts (e.g., the impact on public health and safety) when evaluating licensing of facilities that handle or transport radiological materials.23 In Pennsylvania, the licensing applications to dispose of radioactive materials must discuss long-term public health, environmental, social, and economic impacts that the facility will have on affected areas.24
Under the federal Clean Air Act (CAA), the primary responsibility for planning for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) rests with state and local agencies, who are the lead permitting and enforcement authorities for most CAA requirements in most states. Consistent with the CAA, five of the 36 jurisdictions in our sample (Alaska, Maine, Montana, Washington, and the Navajo Nation) require an evaluation of the health, environmental, economic, social, and energy effects of any proposed reclassification of attainment or "clean" areas to lower classification (nonattainment areas) under the CAA's NAAQS program.
In Kentucky, permit applications for experimental practices in oil and shale operations must include assessments of risks to public health and safety and the environment.27 In Oregon, applicants for a surface-entry permit to enter state lands for the purpose of drilling for oil or gas must receive approval of an environmental assessment that includes assessment of adverse effects on the human and natural resources of the area. Oregon's administrative regulations further specify that the adverse effects evaluated may include scenic, recreational, public health, and plant and animal resources. Finally, Seattle's director of the Department of Planning and Development is required to consult with the director of the Seattle King County Health Department and other local, state, regional, and federal agencies to determine when a business establishment is to be regulated as a "High-Impact Use." A business classifiable under this term (1) is considered to be dangerous or noxious due to the probability or magnitude of its effects on the environment; (2) has the potential for causing major community or health impacts, including nuisance, odors, noise, or vibrations; or (3) is so chemically intensive as to preclude site selection without careful assessment of potential impacts and impact mitigation.
3. HIAs under the National Environmental Policy Act (and State Equivalents)
As discussed in greater detail in Part IV.B, NEPA and equivalent state laws may provide broad legal support for the conduct of HIAs for an wide range of governmental actions (generally, any proposed action with a potential for significant environmental effects), as contrasted with laws that may only apply to a particular sector, agency, or program. NEPA § 102 requires federal agencies to incorporate environmental considerations in their planning and decision making through a systematic, interdisciplinary approach, which is highly consistent with HIA methodology. Specifically, all federal agencies must prepare detailed EISs assessing the environmental impact of and alternatives to major federal actions significantly affecting the human environment. Where an agency's action potentially affects public health, a full analysis of the direct, indirect, and cumulative health effects according to the requirements and steps of the EIS process would be consistent with an HIA.
Several states have analogous statutes (state NEPAs) that require similar assessments of environmental impacts for state agency action that may significantly impact the environment. Eight states reviewed in our research have a state NEPA: California, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, and Washington. Most of these statutes include the goal of achieving a healthful environment in their statements of purpose. Only Washington's law explicitly calls for an analysis of health impacts as part of the EIS process. Although most of these statutes do not expressly mention health, health impacts may be evaluated as part of the EIS process due to the interaction between environmental effects and human health.
Case Study 1: Requiring Zoning Decisions to Consider Health Impacts via New York's State Environmental Quality Review Act
New York's State Environmental Quality Review Act (SEQRA), the state's analog to NEPA, requires impact statements on state actions "which may have a significant effect on the environment."34 SEQRA defines the term "environment" to mean "the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, visiting patterns of population, concentration, distribution, or growth, and existing community or neighborhood character." The definition is broad enough to include socioeconomic, environmental, and public health effects, and has been applied in land use and development, among other contexts. Depending on the circumstances and the anticipated effects of the proposed action, an EIS under SEQRA may include an HIA.
In Riverhead Business Improvement District Management Association v. Stark, the town board in Riverhead, New York, located on Long Island in Suffolk County, enacted a zoning amendment in 1997 that created a commercial planned development district to allow retail stores within the zoned area. Prior to enacting the zoning amendment, however, the town board did not, as required by SEQRA, take the requisite "hard look" at the environmental impacts of the zoning amendment to create the commercial planned development overlay district. Although the town board completed an environmental assessment form in which it determined that the development could increase traffic, affect public health, impact the character of the neighborhood, and possibly cause the release of toxic materials into groundwater aquifers, it found that these risks were not enough to require a full EIS in circumvention of SEQRA requirements. When challenged by petitioners (consisting of a local supply company and a business association), the court held that SEQRA required the town board to fully consider the environmental concerns that were "reasonably likely to result from its zoning amendment at the time of its enactment" in an EIS. The rezoning action was of a type presumed to have a significant adverse impact on the environment and thus require an EIS. Although the court did not specifically distinguish public health and environmental concerns, the types of environmental concerns identified in the assessment included public health impacts. Since these environmental (including public health) concerns were not considered, the zoning amendment was void and unenforceable.
The court also rejected the town board's argument that individual development proposals are subsequently subject to full SEQRA review in connection with the eventual site plan approval process for the proposed shopping center, thus excusing the board itself from the requirements of SEQRA when passing the zoning amendment. The court concluded that the zoning amendment was not enacted in accordance with SEQRA requirements; it was therefore annulled.
This case study illustrates how a state NEPA statute may be used to enforce consideration of health impacts of zoning decisions as part of the EIS process, which may require assessments inherent in an HIA.
As seen in Figure 5, among the 36 jurisdictions reviewed, seven (19 percent) feature provisions that require or facilitate the conduct of an HIA within the subject area of transportation. This includes laws that regulate highway construction and safety, mass transit, and clean vehicles programs.
1. Legal Provisions Requiring HIAs
Two states' laws specifically require an HIA in this sector, the Massachusetts Healthy Transportation Compact and a Washington State bill that required an HIA as part of the planning process for replacing the heavily used State Route 520 bridge in Seattle (see Case Study 2). Massachusetts' Healthy Transportation Compact, established by statute in 2009, requires the use of HIAs to assess the effects of transportation projects on public health and vulnerable populations. The Healthy Transportation Compact is an interagency initiative that involves the secretary of health and human services, secretary of energy and environmental affairs, Massachusetts Department of Transportation (MassDOT) highway administrator, MassDOT transit administrator, and commissioner of public health. It aims to facilitate transportation decisions that balance the needs of all users, expand mobility, improve public health, support a cleaner environment, and create stronger communities. Among other goals, the compact is charged with reducing greenhouse gas emissions, improving access to services for persons with mobility limitations, expanding opportunities for physical activities (like bicycle and pedestrian travel), promoting wellness, and preventing obesity.
Figure 5. Legally Require or Facilitate HIAs—Transportation
Case Study 2: The Washington State Route 520 Bridge Replacement Program— HIA Requirements via State Law
State and local planners considered the HIA in the development and planning of a new bridge across Puget Sound. The HIA incorporated multiple procedures and methods to evaluate the potential effects bridge construction and development may have on the public's health, and how those effects may be distributed across the population. Initially, nine health focus areas for research were determined through the HIA, including air quality, water quality, green space, physical activity, noise, mental well-being of residents and visitors to the area, safety, social connections, and emergency medical services. Researchers showed how these nine areas interrelated, thus suggesting that decision makers consider all areas in conjunction with each other.
Following completion of the HIA in 2008, the report recommended that state transportation providers utilize landscaped freeway lids and more green spaces, make transit improvements, add pedestrian and bicycling amenities, and consider noise reduction strategies. The HIA also provided recommendations for the construction period, which included clearly marked alternative bicycle and walking paths, coordination of noise control, traffic calming devices in affected neighborhoods, and assurances that emergency medical services could access all construction areas, including water. Project planning is ongoing with the bridge replacement scheduled to be completed from 2014 to 2017.
2. Legal Provisions Facilitating HIAs
Some of the strongest provisions to facilitate HIAs in the transportation area are found at the federal level. For example, the U.S. Secretary of Transportation is required by statute to complete a study of the commercial feasibility of constructing one or more high-speed ground transportation systems in the United States. Although the study is aimed at commercial feasibility, Congress defined the study broadly to include the effects on air quality, energy consumption, noise, land use, health, and safety. In addition, the Secretary of Transportation is required to consult with the secretaries of commerce, energy, and defense, the EPA administrator, the assistant secretary of the Army for Public Works, and the heads of other interested agencies, in the research and development of high-speed ground transportation systems. These broad criteria suggest an HIA-like analysis, even though the statute does not specifically require it. Similarly, the Federal Highway Administration's highway traffic or construction noise abatement program provides for noise studies and noise abatement measures to protect the public's health, welfare, and livability. This program, though primarily focusing on noise-related health effects, resonates with the goals of HIAs to inform policy and planning. Information generated through this requirement is provided to state and local transportation officials for use in the planning and design of highways.
Some laws in California and Pennsylvania mandate assessments of health impacts to inform a transportation program or policy decision. In California, following complaints by residents about odors from transit bus-fueling stations using liquefied compressed natural gas, a state statute was passed to require the Omnitrans Joint Powers Authority to complete an assessment of the environmental and public health impacts of these fueling stations in San Bernardino Valley, and to hold at least one public hearing to solicit input from persons who may be affected by those impacts. The completed assessment of March 2004 included door-to-door surveys about health status, review of nurses' logs from nearby schools, and analysis of other industrial emissions in the area. It concluded that exposures to emissions from or proximity to the bus refueling stations did not result in increased health risk. Although this assessment was conducted after the transit stations were already built, the results of the assessment had the potential to affect future decisions regarding the program if significant health impacts were found.
A Pennsylvania statute established the Low Emissions Vehicle Commission in 1998 to study whether the commonwealth should adopt a low-emissions vehicle program (the Clean Vehicles Program). The legislature required the study to include an assessment of the program's impact on economic development; future economic expansion; benefits to public health, welfare, and the environment; and the fiscal impact on consumers. Pennsylvania's Clean Vehicles Program went into effect in 2008, explicitly adopting certain provisions of California's Low Emission Vehicle Program. Although the California and Pennsylvania laws are good examples for future drafters of laws that require assessment of public health impacts to inform policy, their reach does not extend beyond the particular program for which they were designed.
As seen in Figure 6, seven (19 percent) of the 36 jurisdictions selected for our study feature laws that facilitate the conduct of an HIA within the subject area of agriculture, although none of these laws specifically requires an HIA. The area of agriculture includes, among others, laws that regulate farming, pesticides, large animal facilities, and organic and sustainable food practices. Federal law provides a broad basis for conducting HIAs related to agriculture programs, policies, and projects. The U.S. Department of Agriculture's (USDA) Office of Risk Assessment and Cost-Benefit Analysis (ORACBA) must assess the risks to human health, human safety, or the environment, and prepare a cost-benefit analysis, for every proposed regulation with a national fiscal impact greater than $100 million (in 1994 dollars). USDA's analysis, which is published in the Federal Register for public review, must include evaluations of the health and safety risks to persons who are disproportionately exposed or particularly sensitive. The breadth of this USDA requirement, coupled with its use for evaluating proposed regulations, is consistent with HIAs. The extent to which this legal authority has been utilized to conduct assessments similar in scope to HIAs is unclear. Few risk assessments have been published in the Federal Register pursuant to this requirement.46 Additional assessments that may fall outside the statutory requirement have also been conducted by ORACBA.
Laws in Minnesota and North Carolina also provide for broad assessments of health impacts of specific agricultural programs and policies. The Minnesota Department of Agriculture must report on the status of organic agriculture every two years to the legislature's policy and finance committees with jurisdiction over agriculture. The report must include available information based upon current data on the positive and negative impacts of organic production on the environment and human health. In North Carolina, the Sustainable Local Food Advisory Council is charged with developing sustainable local food programs and policies. It is authorized to consider in-depth assessments of (1) the foods that are served to public school students, (2) the possibility of making sustainable local food available under public assistance programs, and (3) the possibility of promoting urban gardens and backyard gardens to improve the health of citizens. The council's in-depth assessment may include reviews of health impacts of the various sustainable food programs and policies.
Other states' laws may not explicitly require evaluations of health impacts as part of policy development, but rather demonstrate how more generalized legal authority can facilitate HIAs by supporting research or by authorizing an agency to investigate broader effects of policies on public health. For example, the Illinois Food and Agricultural Research Act funds universities and other researchers to investigate short- and long-term environmental, health, social, economic, and natural resource implications of products, practices, and systems proposed for use in food and agricultural enterprises. Researchers are also required to work closely with the Illinois Council on Food and Agricultural Research to investigate natural resources, environmental, economic, nutritional, and social impacts of agricultural systems. In Oregon, the Oregon Health Authority is required upon request of the director of agriculture to survey and investigate how the production, processing, or distribution of agriculture products may affect the public's health.
Figure 6. Legally Require or Facilitate HIAs—Agriculture
Case Study 3: Requiring an Assessment of Public Health Impacts in California to Establish Rules for Permitting Large Confined Animal Facilities
Specifically, the court found that a statutorily required assessment of the public health impacts of the emissions from confined animal facilities was not satisfied by the district's report. The report included only a single paragraph on the impact of agricultural emissions on occupational health and did not discuss general public health concerns or impacts of Rule 4570 on community health. The district argued that its requirement in Rule 4570 that dairies, feedlots, and poultry houses adopt practices to reduce volatile organic compound emissions would promote public health in the valley by reducing unhealthful concentrations of ambient ozone. The court disagreed, noting that the district's assertion was unsupported by any analysis of the true impacts on public health. It held that Rule 4570 was adopted without conducting an adequate assessment of public health impacts, and directed the district to complete an appropriate assessment of the public health impacts.
When the public health analysis was completed, the district readopted Rule 4570. While the court found that the district should have assessed the public health impacts of the rule prior to initial adoption, it upheld all of the substantive aspects of the rule, and no major changes were required as a result of the health analysis.
This case study illustrates how courts can enforce a legal requirement on a regulatory body to complete assessments of public health impacts before implementing rules, as prompted by community members seeking such assessments through litigation. Although the statute at issue was limited to the evaluation of public health impacts related to air quality and thus did not necessarily call for a broader assessment of health impacts akin to an HIA, court enforcement of its requirements provides a road map of how a statute requiring an assessment of a broader range of health impacts can be enforced through litigation.
D. Waste Disposal and Recycling
As summarized in Figure 7, 11 (31 percent) of the 36 jurisdictions reviewed feature laws that facilitate the conduct of an HIA related to waste disposal and recycling. None of these jurisdictions' laws, however, specifically require the conduct of an HIA. Most of the legal provisions that facilitate HIAs in this subject area take the form of environmental and public health assessments required for approval to construct or operate waste disposal facilities, notably solid waste facilities (landfills) and facilities handing radioactive wastes.
Figure 7. Legally Require or Facilitate HIAs—Waste Disposal and Recycling
At the federal level, the EPA regulations require commercial and industrial solid waste incineration units to complete a siting analysis to obtain a permit for construction of solid waste facilities. This siting analysis must consider air pollution control alternatives that minimize potential risks to public health or the environment, including costs, energy impacts, non-air environmental impacts, or any other practical factors relating to the alternatives. In Kentucky, Maine, Massachusetts, and New York, the permitting/licensing process for landfills requires state environmental agencies to evaluate facility siting and design for potential effects on public health, safety, and the environment.
Laws in Pennsylvania and Texas require additional types of impacts (even beyond those effects on "public health" or "safety") to be evaluated in waste management permit applications. Broad inclusion of various types of health impacts is highly consistent with HIA methodology. In Pennsylvania, for example, permit applications for municipal or residual waste management projects must include a detailed analysis of the potential impact of the proposed facility on the environment, public health, and public safety. In Texas, solid waste management plans must include feasibility studies that evaluate alternatives in terms of their public health, physical, social, economic, fiscal, environmental, and aesthetic implications.
New York City's legal requirements concerning landfills exemplify how HIAs may be facilitated through law. The city's Department of Sanitation is required to complete a comprehensive study of the city's commercial solid waste management system, including analysis of the ways all applicable laws, rules, and regulations regarding solid waste transfer stations and transportation are enforced to minimize potential adverse public health impacts. The study must also analyze potential public health impacts of processing residential and commercial waste, the options for transporting such waste, and the presence of large numbers of private transfer stations within communities.
The second major category of waste disposal regulations implicating HIAs involves radioactive waste disposal. The U.S. Department of Energy requires that the selection of sites for highlevel radioactive waste must be accompanied by an environmental assessment that includes evaluation of effects on public health, safety, and the environment. If the decision amounts to a "major federal action" under NEPA, this assessment would fulfill NEPA's environmental assessment requirements. (Note that this is a different statute than the one addressing lowlevel radioactive waste challenged by the state of New York as violating the Tenth Amendment in the 1992 U.S. Supreme Court case New York v. United States.)
Similarly, at the state level, permit applicants for radioactive waste disposal facilities may be required to address prospectively the facility's potential health and environmental effects. In Illinois, for example, applicants for low-level radioactive waste disposal facility licenses must describe their environmental monitoring program and evaluate potential health impacts. In New York State, permit applications for low-level radioactive waste disposal must demonstrate due consideration of the degrees and durations of risks to human health and the environment, and protection of public health, safety, and the environment.
E. Other Areas
Although most of our findings are concentrated in the four major subject areas described above, more generalized legal requirements or authorizations for assessments of health impacts were also found in six (17 percent) jurisdictions: federal, California, Kentucky, Washington, Minneapolis, and Navajo Nation (see Table 1). This section includes all of the laws identified in our research that either require or facilitate HIAs but fall outside the four major subject areas.
1. Legal Provisions Requiring HIAs
In California, all hospitals are required to comply with seismic safety standards and improvements by certain deadlines, or specific hospital buildings may be removed from service. The applicable statutes require the Office of Statewide Health Planning and Development to conduct an HIA to determine whether the removal of hospital buildings from service may significantly diminish the availability or accessibility of health care services to an underserved community.
2. Legal Provisions Facilitating HIAs
Several legal provisions authorize assessments of health impacts without restriction or reference to a particular agency, program, policy, or issue area. Multiple federal executive orders signed by President Clinton require federal agencies to collect and assess data regarding the health impacts of their actions. For example, Executive Order 12866 requires each federal agency to provide the Office of Information and Regulatory Affairs with a list of its planned regulatory actions, along with an assessment of the anticipated costs and benefits across a variety of dimensions, including health and safety. Executive Order 12898 requires federal agencies (when legally permissible) to collect and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income to determine whether the agency's policies or activities have a disproportionately high adverse effect on the health or environment of minority or low-income populations. Executive Order 13045 directs each federal agency to prioritize the identification and assessment of environmental health and safety risks that may disproportionately affect children.
At the state level, the Washington State Board of Health is required (subject to available funding) to complete health impact reviews of legislative or budgetary proposals to determine the extent to which the proposal improves or exacerbates health disparities. Although the board conducted health impact reviews from 2007 to 2009 (many relating to education policies), funding for these reviews was legislatively suspended in 2009. No new reviews have been posted on the Board of Health's website since then, although the Board indicates it will attempt to continue reviews upon request, subject to resource limitations. In Kentucky, the governor's cabinet is authorized to undertake planning studies and surveys, and to create maps relating to a litany of subjects affecting the general health and welfare. These include zoning; soil conditions; land use and classifications; population distribution; schools; park and playground development; port, harbor, and waterway work; parkways; highways; traffic; transit; water supply; drainage and sewerage; long-range financial programs; real property inventories; tax maps; building and housing conditions; and subdivision controls.