Environmental Justice Primer for Ports: Considering Near-Port Communities in Port Decisions
Benefits of Effective Community Engagement
According to The Community Engagement Guide for Sustainable Communities, community engagement is a process through which community members are empowered to own the change they want to see. The process involves communication, problem-solving, governance, and decision-making skills and strategies. The report summarizes the benefits of effective engagement as:
- Legitimacy and increased support for plans and projects.
- Improved community/government relations.
- Deeper understanding of the issues.
- Increase in community capacity to achieve equitable outcomes and leverage additional resources outside of public processes.
- Democracy in action.
Community engagement is, in many ways, a microcosm of American democracy in action. It is one of the best ways that community residents can connect to and shape local and regional decision-making processes.
Ports and near-port communities share infrastructure, regulatory jurisdictions, local governments and climate-related risks. While these communities face quality-of-life impacts, the ports face business risks and potential losses from non-compliance with legal obligations. Extreme weather events and climate change threaten both ports and near-port communities, requiring adaptation to increase resilience to these events. Port decision-makers can help communities and ports navigate these challenges and shared interests by providing opportunities for joint-problem solving. The goal is straightforward – a more compatible, sustainable and resilient future for all parties.
The drivers for port decision-makers to engage near-port communities can be divided into three broad categories:
- Regulatory requirements
- Risk management
- Increased resilience and innovation
Existing Condition Assessments
- Community exposure and risk assessment
- Individual exposure assessment
- Transportation and health
- Health professional shortage areas
- Medically underserved areas
- Subsistence exposure scenarios for tribal applications
- Coastal flood exposure
- Multi-hazard mapping
- Storm surge
- Heat waves
- Sea level rise
- Emergency response procedures
- Traffic safety
- Income levels
- Age groups
- Family composition
- Employment profile
- Food accessibility
Community assessment tools are provided in the Additional Resources section.
Most federal regulations require public participation as part of a new action or permit. Visit PortCompliance.orgExit to review all potentially applicable federal regulations. Permits especially relevant to near-ports communities include the Clean Air Act Title V permitting process and the Clean Water Act stormwater and dredged or fill material permitting processes. In addition to public participation, the National Environmental Policy Act (NEPA) and Executive Order 12898 require consideration of impacts to nearby communities, and Executive Order 13175 requires that agencies must consult with tribes on all actions that could impact tribal communities. State and local regulatory requirements should be considered as well.
National Environmental Policy Act
NEPA requires the evaluation of environmental impacts for major federal action, including issuing federal permits, typically resulting in an Environmental Assessment or an Environmental Impact Statement (EIS). Some parts of the NEPA process require agencies to provide meaningful opportunities for public participation.
- When an agency starts a NEPA analysis.
- When a NEPA document is published for public review and comment.
- When mitigation alternatives are being considered.
Meaningful engagement with communities can occur prior to and throughout the entire NEPA process, including when defining the affected environment, identifying minority and low-income populations, assessing potential impacts, assessing potential alternatives, determining whether impacts are disproportionately high and adverse, and developing mitigation and monitoring measures.17
Methods used by agencies to engage communities in scoping and development for EISs include public meetings, conference calls, formal hearings, informal workshops and opportunities to submit written comments. Specific guidance, methods and tools are available for analysis and consideration of environmental justice as part of the NEPA review process.
Federal Executive Order 12898
Under federal Executive Order 12898, all federal agencies are required to identify and address the disproportionate impacts of their programs, policies and activities on low-income communities and communities of color.18 Near-port communities often reflect these demographics, making this requirement particularly relevant for ports where activities require a federal action, such as deepening or widening a harbor or channel, bridge elevations, and multimodal infrastructure investments. Executive Order 12898 requires an environmental justice analysis as part of a NEPA review. Further, Title VI of the Civil Rights Act of 1964 requires that recipients of federal funding (including BUILD [formerly known as TIGER] and Diesel Emissions Reduction Act [DERA]) not use those funds in a way that discriminates against protected groups as defined by the Civil Rights Act. The Civil Rights Act “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.“ In addition, Executive Order 12898 requires federal agencies to develop strategies to address environmental justice. EPA’s strategy includes an overarching effort to instill a culture among all federal agencies in which environmental justice is a priority by incorporating EJ language in applicable external funding opportunities. This cultural change is reflected in some federal grants, such as DERA, in prioritizing funding to areas that experience disproportionate adverse impacts.
Tribal Rights and Executive Order 13175
Tribal communities often have special treaty rights that must be considered, such as access to and protection of treaty-protected rights, the health of plants and animals, federal trust responsibility protections, and government-to-government consultation. Executive Order 13175 protects the sovereignty and right to self-determination of tribes and requires agencies to consult tribes on all policies, rules and guidance with tribal implications (TI).
Tribes have the authority to govern the environment within trust lands and other areas where they can demonstrate jurisdiction, which includes implementing federal laws when they have delegated programs. Tribes also may have treaty rights in other areas that are important in protecting traditional lifeways such as subsistence hunting and fishing and cultural practices.
While part of the environmental justice community, tribal governments also carry a special distinction, conferred by statute, affirmed in the Clean Air Act and upheld by the Supreme Court, and their status as sovereign nations means that they have additional legal rights. Examples of such rights are the right to hunt, fish, gather and otherwise use the resources found in treaty-protected lands. In addition, the federal government has a trust responsibility to tribes, which is carried out through government-to-government consultation. With respect to emissions from ports, this means tribes must be not just consulted, but engaged as government-to-government partners, wherever and whenever there are federal permits or reviews. This may include consultation on emissions from the sources found in ports but may also include the use of waters in the ports areas, traffic in ports areas, historic and archaeological resources, and the health of the plant and animal species found in treaty-protected areas. Tribes may have additional considerations than other populations due to their subsistence lifestyle, to the higher-than-average prevalence of COPD, diabetes and asthma in tribal communities, and the use of resources for medicinal and ceremonial purposes. Also, places of cultural or spiritual significance can be impacted by pollution, as these places are likely to be outdoors rather than inside a building.
Community engagement as a potential risk management strategy may help avoid losses from regulatory delays and litigation due to non-compliance, community opposition and negative press (see Case Study 1).
The quality of port-community relationships has direct business implications for ports. Adversarial relationships with communities can lead to litigation and regulatory delays requiring significant time and resources. Taking a proactive approach to community engagement may provide more certainty during a decision-making process rather than reacting to unforeseen community resistance on the fly if proactive community engagement is not built into the process.
CASE STUDY 1 | Los Angeles and Long Beach Ports: Air Quality Settlement Funding
In 2001, the Port of Los Angeles had plans to expand an existing shipping terminal. Residents in the San Pedro and Wilmington neighborhoods formed a coalition to oppose the expansion. Their concerns included increased pollution, blight, noise and congestion. Two San Pedro homeowner associations, the Natural Resources Defense Fund and the Coalition for Clean Air filed a lawsuit against the City of Los Angeles and the Port of Los Angeles, citing violations of the California Environmental Quality Act.
The lawsuit was successful and a landmark settlement followed. In 2003, a $50 million fund was established to mitigate the impacts of port operations in San Pedro and Wilmington. This settlement also required that the Port of Los Angeles adopt pollution prevention measures. The measures, which included shoreside power for container vessels and alternative-fuel yard equipment, had never been implemented at a shipping terminal. The project reduced air pollution by a ton a day per ship, and became a model for future port development.
Increased resilience and innovation
The need for community engagement goes beyond meeting regulatory requirements and risk management. The port industry sector is currently working on diverse priorities, ranging from infrastructure upgrades for post-Panamax shipping (the Appendix provides more information) and addressing transportation congestion to workforce development and the need for resiliency planning and adaptation to threats from climate change and sea level rise.
Proactive community engagement that identifies common interests between community needs and current challenges facing a port can provide a foundation for innovative, collaborative and meaningful solutions (see Case Study 2 and 3). A collaborative approach to community engagement can lead to win-win solutions for ports and communities. This means bringing together residents, community organizations, local and regional governments and agencies, non-profits, and area businesses to find mutually beneficial ways to address environmental, land use and employment challenges.
According to the National Cooperative Freight Research Program the transportation industry, leading companies have firmly enmeshed sustainability principles into their overall corporate missions. The increased recognition of the environmental and human impacts of supply-chain activities may lead to public pressure to quickly implement policies to reduce these impacts.19
Ports, as integral parts of freight supply chains, will be expected to respond to this changing landscape within the transportation industry and enable their customers to reduce environmental and social impacts in order to stay competitive.
CASE STUDY 2 | Baltimore Port Alliance: Proactive Community Engagement
The Baltimore Port Alliance represents a coalition of maritime businesses. Its mission is to “improve the Port of Baltimore by creating a forum where information that impacts the Port Community (nearby residents) can be presented in a constructive environment and acted upon in support of the members and the Port as a whole.” At the 2013 and 2014 National Dialogue on Seaports, EPA recognized the Alliance as a model for engaging community stakeholders.
The Alliance has two subcommittees. The Education and Outreach Committee focuses on supporting educational partnerships with entities across the Chesapeake Bay region. The Environmental Committee is responsible for: (1) informing Alliance members about key environmental issues; and (2) sharing the port’s role in environmental stewardship with community stakeholders. Activities have included hosting compliance assistance workshops for the maritime community and participating in cleanup efforts across the Chesapeake Bay region.
CASE STUDY 3 | The Harbor Community Benefit Foundation (Los Angeles)
The Harbor Community Benefit Foundation (HCBF) was founded in 2008 based on an agreement the Port of LA entered into with 17 environmental and community groups. As the port grows, so does the fund. The money is invested and grants are made from the interest.
HBCF’s mission is to “assess, protect, and improve the health, quality of life, aesthetics, and physical environment of the harbor communities of San Pedro and Wilmington, California, which have been impacted by the Port of Los Angeles.” Grant focus areas include an air quality mitigation program and a community benefit program. As of 2019, HCBF has invested $6.3 million back into the Los Angeles community through 124 grants to 71 recipients.
The table below shares examples of the collaborative decision-making opportunities that can emerge when ports and community partners come together.
|Port Industry Challenges||Potential Opportunities||Ports Benefits||Community Benefits|
||Land use planning and smart growth through port-community collaboration.||
Reduced congestion and infrastructure upgrades.
|Improved quality of life through minimized exposure to pollutants, enhanced public safety and environmental quality.|
||Creating jobs and training workforce from near-port communities.||Employment-ready workforce.||Access to jobs and a robust local and regional economy.|
||Shared planning for resiliency and sustainability.||Adoption of clean/renewable energy and resource efficiency from sustainable operations model, resiliency from climate impacts.||Healthy, livable and more resilient neighborhoods.
Protection of treaty-protected resources.