How Colorado is Addressing Environmental Justice

Table of
Contents

How Does Colorado Define Environmental Justice and Environmental Justice Communities?

Environmental Justice Definitions

Colorado House Bill 21-1266, the “Environmental Justice Act,” defines “disproportionately impacted community” as “a community that is in a census block group, as determined in accordance with the most recent united states census, where the proportion of households that are low income is greater than forty percent, the proportion of households that identify as minority is greater than forty percent, or the proportion of households that are housing cost-burdened is greater than forty percent; or is any other community as identified or approved by a state agency, if: the community has a history of environmental racism perpetuated through redlining, anti-indigenous, anti-immigrant, anti-Hispanic, or anti-black laws; or the community is one where multiple factors, including socioeconomic stressors, disproportionate environmental burdens, vulnerability to environmental degradation, and lack of public participation, may act cumulatively to affect health and the environment and contribute to persistent disparities. As used in this subsection (2)(b)(ii), ‘cost-burdened’ means a household that spends more than thirty percent of its income on housing, and “low income” means the median household income is less than or equal to two hundred percent of the federal poverty guideline.”[1]

[1] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

The Colorado legislature expanded on and clarified this definition of disproportionately impacted to include:

  • Low-income communities: Census block groups where more than 40% of households are at or below 200% of the federal poverty line.
  • Communities of color: Census block groups where more than 40% of the population identify as anything other than non-Hispanic White.
  • Housing cost-burdened communities: Census block groups where more than 50% of households spend more than 30% of their income on housing costs like rent or mortgage payments.
  • Linguistically isolated communities: Census block groups where more than 20% of the population live in households where all adults speak a language other than English and speak English less than very well.
  • Historically marginalized communities: Communities with a history of environmental racism created through redlining or anti-Black, anti-Hispanic, anti-immigrant, or anti-Indigenous laws, policies, or practices that continue to experience present-day environmental health disparities.
  • Cumulatively impacted communities: Communities where multiple factors, including socioeconomic stressors, vulnerable populations, disproportionate environmental burdens, vulnerability to environmental degradation or climate change, and lack of public participation may act cumulatively to affect health and the environment and may contribute to persistent environmental health disparities. Cumulatively impacted communities can be presumptively identified in one of two ways:
    • They are in a census block group with a Colorado EnviroScreen score above the 80th percentile; or,
    • They are in a census tract that the federal Council on Environmental Quality’s Climate and Economic Justice Screening Tool identifies as disadvantaged.
  • Tribal lands: The Southern Ute and Ute Mountain Ute Reservations.
  • Mobile Home Communities: Areas that meet the Department of Local Affairs’ definition of a Mobile Home Park.

The Colorado Department of Transportation (CDOT) defines environmental justice consistent with the definition established in EO 12898 as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws and policies.”

Environmental Justice Mapping Tools

Colorado State University and Colorado Department of Public Health and Environment (CDPHE) created Colorado EnviroScreen as a tool for environmental health screening and to identify areas with disproportionate environmental health risks. The map uses demographic data from the Census Bureau 2015-2019 American Community Survey.[1] The map does not include data for tribal lands. The map considers environmental exposures, environmental effects, climate vulnerability, sensitive populations, and demographics.[2]

 

See map here: https://teeo-cdphe.shinyapps.io/COEnviroScreen_English/#map

[1] “Frequently Asked Questions,” Colorado EnviroScreen Environmental Justice Mapping Tool, (June 2022) https://docs.google.com/document/d/1_GEjGbOd3CmXwZu09QJ9oO4ZI8hqXtFwZAAeTsNV5lQ/edit#heading=h.ugf3dgl9c44r.

[2] Colorado EnviroScreen Environmental Justice Mapping Tool, (May 23, 2023) https://teeo-cdphe.shinyapps.io/COEnviroScreen_English/#map.

How Does Colorado Consider Environmental Justice in its Substantive Actions?

Environmental Justice as a Policy of the Environmental Agency or Across All Agencies

In the Environmental Justice Act, the legislature found, “State action to correct environmental injustice is imperative, and state policy can and should improve public health and the environment and improve the overall well-being of all communities.”[3] The act further declares, “The state government has a responsibility to achieve environmental justice, health equity, and climate justice for all communities by avoiding and mitigating harm.”[4] With regards to environmental justice communities, the act also determined that “[i]t is…the responsibility of the state to include and engage these communities more fully in policymaking at every level and to ensure that environmental policy works toward restorative justice and benefitting these communities.”[5]

[1] “Frequently Asked Questions,” Colorado EnviroScreen Environmental Justice Mapping Tool, (June 2022) https://docs.google.com/document/d/1_GEjGbOd3CmXwZu09QJ9oO4ZI8hqXtFwZAAeTsNV5lQ/edit#heading=h.ugf3dgl9c44r.

[2] Colorado EnviroScreen Environmental Justice Mapping Tool, (May 23, 2023) https://teeo-cdphe.shinyapps.io/COEnviroScreen_English/#map.

[3] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf

[4] Id.

[5] Id.

Consideration of Environmental Justice in Permitting

The Environmental Justice Act adds a section to the state’s air quality control provisions requiring the air quality control commission to promulgate rules for sources that impact disproportionally impacted communities.[1] In July 2023, the commission promulgated finalized rules requiring all permit applications to include an environmental justice summary for each census block in which the source is located. The rules require that applications for new or modified sources that will increase overall facility emissions in disproportionately impacted communities include in their summaries a consideration of engagement with affected members of the community, any emission reduction strategies, any changes made to the project based on engagement with the community, and any other consideration intended to facilitate the fair treatment and meaningful involvement of disproportionately impacted community members.[2] The regulations also have monitoring provisions specific for pollutants in disproportionately impacted communities.[3]

Oil and gas operators must submit an Oil and Gas Development Plan for approval from the Oil and Gas Commissions before starting operations. As part of the plan, the operator must indicate whether the plan includes any proposed locations within a disproportionately impacted community.[4] Proximity to disproportionately impacted communities is also a factor in considering site locations for oil and gas development.[5] For Oil and Gas Locations proposed within 2,000 feet of a disproportionately impacted community, operators are required to conduct a consultation, outreach, and engagement plan.[6] Finally, operators are also required to consider impacts to disproportionately impacted communities as part of their cumulative impact evaluations in their comprehensive area plans.[7]

In June 2016 the CDPHE developed its policy to address equity and justice in the administration of its programs. Among other goals, this policy provided authority to integrate race, income, and health data into decision making and promoted collaboration with community partners. The policy requires environmental programs to consider equity and justice in monitoring, permitting, compliance and enforcement, and technical assistance and voluntary programs. To support the goals of the policy, the environmental programs developed a set of guidance documents, one of which is the department’s plan to ensure stakeholders in areas with known socio-economic and health-related disparities are given a fair opportunity to participate in environmental permitting processes that may have public health or environmental impacts. This guidance was published in May 2017 and has resulted in the identification of a specific subset of permits considered “target permits,” which are those that have the highest potential for significant public health and/or environmental impacts and the development of a screening process to identify target permits within a priority area. Enhanced public outreach must be conducted for these permits.[1]

[1] 20-1143. 7 ECOS, Colorado’s Incorporation of Environmental Justice in Permitting, https://www.ecos.org/news-and-updates/colorados-incorporation-of-environmental-justice-in-permitting/ (last visited Nov. 11, 2023).

[1] Colo. Rev. Stat. § 25-7-104, available at https://colorado.public.law/statutes/crs_25-7-104.

[2] 5 CRR 1001-5, III.B.5.d, available at https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=10918&fileName=5%20CCR%201001-5.

[3] Id. at III.J.

[4] 2 CCR 404-1-303(a)(5)(B)(ii)(dd), available at https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=10279&fileName=2%20CCR%20404-1.

[5] Id. at 304(b)(2).

[6] Id. at 304(c)(20).

[7] Id. at 314(e)(10)(G).

Consideration of Environmental Justice in Enforcement

In 2022, the Colorado Department of Public Health and Environment (CDPHE) and the U.S. EPA Region 8 entered into a “Memorandum of Understanding (MOU) on Advancing Environmental Justice through Enforcement and Compliance Assurance in Disproportionately Impacted Communities.”[1] In the memorandum, CDPHE and EPA commit to collaborate on enforcement and compliance efforts to reduce pollution in overburdened communities. In 2023, they released a final workplan outlining actions under three focus areas outlined in the MOU: (1) strategic targeting of inspections, (2) coordinated enforcement ad compliance assurance actions to address impacts on communities, and (3) enhanced community engagement.[2]

[1] “Memorandum of Understanding on Advancing Environmental Justice through Enforcement and Compliance Assurance Efforts in Disproportionately Impacted Communities,” United States Environmental Protection Agency Region 8 and Colorado Department of Public Health and Environment, (Mar. 8, 2022), https://drive.google.com/file/d/1D3aCqCnRTFclzXD6X0XLXlGyWIiDNFKM/view.

[2] “EPA-CDPHE Memorandum of Understanding (MOU) on Advancing Environmental Justice through Enforcement and Compliance Assurance Efforts in Disproportionately Impacted Communities Final Workplan for Federal Fiscal Year 23,” United States Environmental Protection Agency Region 8 and Colorado Department of Public Health and Environment, (Mar. 27, 2023) https://drive.google.com/file/d/1eroh94SQsE6cdYC3o7_M1cpDjpszOdCc/view.

Consideration of Environmental Justice in Land Use

In 2023, Colorado passed a bill directing the Department of Transportation to adopt guidelines and procedures for regionally significant transportation projects to, among other requirements, “fully evaluate the potential environmental and health impacts on disproportionately impacted communities.”[1] The department is also directed to “[c]onsider the role of land use in the transportation planning process and develop strategies to encourage land use decisions that reduce vehicle miles traveled and greenhouse gas emissions.”[2]

[1] Colo. Rev. Stat. § 43-1-128.

[2] Id.

State Environmental Policy Act “Mini-NEPA”

The Colorado Department of Transportation (CDOT) has its own mini-NEPA that assists and supports the five CDOT regions in the state in preparation of high quality NEPA documents. This mini-NEPA builds and facilitates training and provides guidance for various entities to follow the national NEPA guidelines.[1]

The Environmental Justice Act directs the environmental justice task force with considering proposing a recommendation concerning a potential requirement that agencies prepare an environmental equity analysis for any state action that has the potential to cause negative environmental or public health impacts to a disproportionately impacted community.[2] In the task force’s Final Report of Recommendations in November 2022, it recommends the legislature  adopt a program for centralized Environmental Equity and Cumulative Impacts Analyses (EECIA).[3] As of this writing, the legislature does not appear to have acted on this recommendation.

[1] CDOT, NEPA, https://www.codot.gov/programs/environmental/nepa-program (last visited July 8, 2022).

[2] Colo. HB 21-1233 (May 23, 2023), available at https://leg.colorado.gov/sites/default/files/2023a_1233_signed.pdf.

[3] “Final Report of Recommendations,” Colorado Environmental Justice Action Task Force, 9 (Nov. 14, 2022), https://drive.google.com/drive/folders/1mOt94sVmWZVj3GKo8CXCndvc7JfODuk2.

Dedicated Funding to Environmental Justice Communities

The Environmental Justice Act made an appropriation for the 2021-2022 fiscal year to CDPHE, the department of law, the office of the governor, and the energy office to administer the Act.[1] See the fiscal note for the Act here: https://leg.colorado.gov/sites/default/files/documents/2021A/bills/fn/2021a_hb1266_f1.pdf

[1] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

Consideration of Cumulative Impacts

The Environmental Justice Act directs the environmental justice task force with considering proposing a recommendation concerning a potential requirement that agencies prepare an environmental equity analysis for any state action that has the potential to cause negative environmental or public health impacts to a disproportionately impacted community.[1] In the task force’s Final Report of Recommendations in November 2022, it recommends the legislature  adopt a program for centralized Environmental Equity and Cumulative Impacts Analyses (EECIA).[2] As of this writing, the legislature does not appear to have acted on this recommendation.

[1] Colo. HB 21-1233-§4(3)(a)(II) (May 23, 2023), available at https://leg.colorado.gov/sites/default/files/2023a_1233_signed.pdf.

[2] “Final Report of Recommendations,” Colorado Environmental Justice Action Task Force, 9 (Nov. 14, 2022), https://drive.google.com/drive/folders/1mOt94sVmWZVj3GKo8CXCndvc7JfODuk2.

Prohibitions on Disparate Impact Discrimination

N/A

Established Environmental Rights

The Environmental Justice Act’s Finding Section states: “All people have the right to breathe clean air, drink clean water, participate freely in decisions that affect their environments, live free of dangerous levels of toxic pollution, experience equal protection provided by environmental policies, and share the benefits of a prosperous and vibrant pollution-free economy.”[1]

[1] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

How Does Colorado Address Environmental Justice in its Procedures?

Environmental Justice as Part of Environmental Agency’s Mission

N/A

Environmental Justice as Part of Other Agency’s Mission

N/A

Processes and Procedures (including Title VI)

Non-Discrimination Policy

The Colorado Department of Public Health and Environment’s Non-Discrimination Policy Statement: “The Colorado Department of Public Health and Environment (CDPHE) complies with applicable federal and state civil rights laws and does not exclude, deny benefits to, or otherwise discriminate against any individual on the basis of race, color, ethnic or national origin, ancestry, age, sex, gender, sexual orientation, gender identity and expression, religion, creed, political beliefs, or disability in employment, admission or access to, treatment or participation in, or receipt of the services and benefits under any of its programs, services and activities, whether carried out by the department directly or through a contractor or any other entity with which it arranges to carry out its programs, services and activities. CDPHE does not intimidate or retaliate against any individual or group because they have exercised their rights to participate in actions protected, or oppose action prohibited, by 40 C.F.R. Parts 5 and 7, or for the purpose of interfering with such rights.”[1]

[1] “Nondiscrimination Policy and Resources,” Colorado Department of Public Health and Environment, (last accessed Nov. 14, 2023) https://cdphe.colorado.gov/about-cdphe/nondiscrimination-policy-and-resources.

Grievance Procedures

Individuals can submit complaints to the Environmental Justice ombudsperson. The CDPHE will investigate complaints alleged illegal air, water, and soil pollution with a particular focus on complaints from disproportionately impacted communities. If the complaint falls outside the purview of CDPHE, the ombudsperson will help direct the complaint to the appropriate authority.[1]

[1] “Environmental Justice Complaints,” Colorado Department of Public Health and Environment, (last accessed Nov. 14, 2023) https://cdphe.colorado.gov/ej/complaints.

Enhanced Public Participation and Information Access

The Air Quality Control Commission’s regulations on stationary source permitting and air pollutant emission notice requirements require permit applicants to include an environmental justice summary for every census block where the air pollution source is located. As part of the summary, the applicant should include considerations of their engagement with members of the Disproportionately Impacted Community who reside within 1-mile of the proposed source.[1]

On its website, CDPHE has resources on community engagement, outreach, and public participation best practices.[2] The typical public engagement process for issuing permits involves the following public outreach activities:

  • Public notice of permitting action to ensure the impacted community and interested parties are aware of the permitting action, which may be translated into languages other than English, depending on where the facility seeking the permit is located.
  • Opportunity to provide written comments on the draft permit.
  • Agency response to written comments on the draft permit.
  • Opportunity to request a hearing or opportunity for verbal comments.

Public outreach activities for proposing new or revised regulations include:

  • Stakeholder processes led by agency staff with interested parties leading up to issuing a proposed regulation to obtain early feedback.
  • Formal public involvement proceedings within the rulemaking allowing interested persons to seek party status (authorization to officially participate in the rulemaking), provide written filings, and provide verbal testimony to the relevant board or commission.
  • Opportunities for other members of the public who do not seek party status to provide written and oral comment to the relevant board or commission.

CDPHE states that it will hold all planned in-person hearings in or near the community impacted by the decision, along with online forums.

Further, CDPHE has a policy on providing meaningful access to services for. People with disabilities in accordance with state and federal law. [3]

[1] 5 CCR 1001-5 III.B.5.d.

[2] “Community engagement, outreach, and public participation best practices,” Colorado Department of Public Health & Environment, (last accessed Nov. 17, 2023) https://cdphe.colorado.gov/community-engagement-outreach-and-public-participation-best-practices.

[3] “CDPHE’s Commitment to Public Participation and Public Participation Procedures,” Colorado Department of Public Health & Environment, (last accessed Nov. 17, 2023) https://cdphe.colorado.gov/commitment-to-public-participation-and-public-participation-procedures.

Language Access

CDPHE has adopted Policy 9.8: Communicating with People with Limited English Proficiency to implement the language access standards of Title VI of the Civil Rights Act of 1964. CDPHE has a centralized model to provide staff with professional interpretation and translation services to promote health equity and environmental justice.[1]

To request translation, auxiliary aids, or other accommodations, contact:

Nondiscrimination Coordinator
Colorado Department of Public Health and Environment
4300 Cherry Creek Drive South.
Denver, Colorado 80246
Telephone: 303-692-2102
State Relay: 711
Email: 

[1] “Department Policy 9.8 Communicating with People with Limited English Proficiency,” Colorado Department of Public Health & Environment, (Apr. 2010, revised Aug. 2013), https://cdphe.colorado.gov/department-policy-98-communicating-with-people-with-limited-english-proficiency.

Consultation with Indigenous Communities and Tribal Nations

The Colorado Commission on Indian Affairs has published and maintains a State-Tribal Consultation Guide that strives to achieve meaningful tribal consultation[1] through State-Tribal Consultation Agreements. Currently, CDPHE has signed a Tribal Consultation Agreement in 2011 to work on a government-to-government basis with the Ute Mountain Ute and Southern Ute Indian Tribes on health and health care related issues.[2] The two main requirements of the consultation agreement are (1) Tribes and State agencies meet at least one fiscal year and (2) that each State agency provide a Programmatic Action Log Update on a bi-monthly basis.[3] The full agreement is also available.[4] Further, the Environmental Justice Action Task Force’s final recommendations include calling for agencies to engage in formal consultation with tribes via the Colorado Commission on Indian Affairs (CCIA).[5]

[1] “State-Tribal Consultation Guide: An Introduction for Colorado State Agencies to Conducting Formal Consultations with Federally Recognized American Indian Tribes,” Colo. Comm’n of Indian Affairs, 8 (July 2014), https://drive.google.com/file/d/1i5swh33TPGx-rqGbejKGeqPhh3U7G7Nc/view (“Meaningful Tribal Consultation” is defined as consultation that is the open and mutual exchange of information integral to effective collaboration, participation, and informed decision making, with the ultimate goal of reaching consensus on issues. Consultation is the development of a relationship based on trust, an effort to understand and consider any effects an undertaking may have on the consulting parties. Meaningful consultations are typically based on mutually agreed-upon written protocols for timely communication, coordination, cooperation, and collaboration.)

[2] Id. at p.13.

[3] Id.

[4] Id. at 14-19.

[5] “Final Report of Recommendations,” Colorado Environmental Justice Action Task Force, 39, (Nov. 14, 2022) https://drive.google.com/file/d/1l4rN-o3h3OJg8TciUzh-qxytULvyD_NE/view.

Governmental Environmental Justice Structures, Positions, and Funding Streams

Environmental Justice Coordinating Agency

N/A

Environmental Justice Coordinator

N/A

Environmental Justice Advisory Board

CDPHE has an Environmental Justice Advisory Board and a new Environmental Justice Task Force. The Advisory Board is a 12-member board appointed by the Governor and Director of CDPHE. Members come from a variety of academic, non-profit and policy backgrounds as well as from disproportionately impacted communities. Its primary functions include advising CDPHE on engaging with environmental justice communities and administering the environmental justice grants program.[1]

The Environmental Justice Task Force was created by the Environmental Justice Act.[2] Members were appointed by the Governor and the members of the General Assembly. Members are representative of different environmental justice communities throughout the state, renewable and non-renewable energy, different state agencies and offices.[3] The Task Force spent a year meeting with various community stakeholders before issuing its final recommendations to the Colorado legislature, Governor, and CDPHE.[4]

The Environmental Justice Act also created the Environmental Justice ombudsperson position to be appointed by the Governor and report to the CDPHE director.[5] The ombudsperson’s primary role is to build and improve communication and relationships between environmental justice communities and the CDPHE.[6] The ombudsperson administers the environmental justice complaint system described above.[7]

[1] “Environmental Justice Advisory Board,” Colorado Department of Public Health & Environment, (last accessed Nov. 21, 2023) https://cdphe.colorado.gov/ej/advisory-board;  Colo. Rev. Stat. Ann. § 25-1-134(2)(g)(VII).

[2] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

[3] “Environmental Justice Action Task Force,” Colorado Department of Public Health & Environment, (last accessed Nov. 21, 2023) https://cdphe.colorado.gov/ej/action-task-force.

[4] Final Report of Recommendations,” Colorado Environmental Justice Action Task Force, (Nov. 14, 2022) https://drive.google.com/file/d/1l4rN-o3h3OJg8TciUzh-qxytULvyD_NE/view.

[5] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

[6] “Environmental Justice ombudsperson,” Colorado Department of Public Health & Environment, (last accessed Nov. 21, 2023) https://cdphe.colorado.gov/ej/ombudsperson; Colo. Rev. Stat. Ann. § 25-1-134(2)(g)(VII).

[7] Id.

Funding for Environmental Justice

The Environmental Justice Act made an appropriation for the 2021-2022 fiscal year to CDPHE, the department of law, the office of the governor, and the energy office to administer the Act.[1] See the fiscal note for the Act here: https://leg.colorado.gov/sites/default/files/documents/2021A/bills/fn/2021a_hb1266_f1.pdf

[1] Colo. HB 21-1266 (Jul. 2, 2021), available at https://leg.colorado.gov/sites/default/files/2021a_1266_signed.pdf.

Additional Colorado Environmental Justice Provisions

While there are no explicit mentions of environmental justice, Colorado has recently enacted legislation to restrict and regulate PFAS.

Colorado Environmental Justice Contacts

 

Environmental Justice Ombudsperson: Marcus Howell

4300 Cherry Creek Drive South, Denver, CO 80246

303-549-9988

Contacts for the Environmental Justice Program team are available here: https://cdphe.colorado.gov/ej/about-us

Where to Find Colorado Environmental Justice Laws, Policies, and Tools

Constitutional Provisions

N/A

Executive Orders

N/A

Legislation and Statutes

  • Environmental Justice Act: HB21-1266
  • Environmental Justice Action Task Force (codified): Colo. Rev. Stat. § 25-1-133
  • Environmental Justice Ombudsperson and Advisory Board (codified): Color. Rev. Stat. § 25-1-134
  • Air Quality Control Commission: Colo. Rev. Stat. § 25-7-104
  • Environmental Impacts of Capacity Projects: Colo. Rev. Stat. § 43-1-128
  • Air Toxics: HB21-1189, codified at Colo. Rev. Stat. § 25-7-141
  • Measures to Modernize the Public Utilities: SB21-272, codified at Colo. Rev. Stat. § 40-2-108
  • Funding for a Just Transition: HB21-1290, codified at Colo. Rev. Stat. § 8-83-501-06
  • Public Protection from Toxic Air Contaminants: HB22-1244, codified at Colo. Rev. Stat. § 25-7-109.5
  • Mobile Home Park Water Quality: HB23-1257, codified at Colo. Rev. Stat. § 25-8-1001-1008

Regulations

  • Air Quality Control Commission Rule for Stationary Source Permitting And Air Pollutant Emission Notice Requirements: 5 CRR 1001-5
  • Oil and Gas Conservation Commission Rule for Practice and Procedure: 2 CCR 404-1

Policies/Guidance

Mapping Tools

Other

  • Environmental Justice Ombudsperson Complaint System: https://cdphe.colorado.gov/ej/complaints