The work begins to ensure the new Cumulative Impacts Law benefits communities

A photo of people's ideas from a community meeting about cumulative impacts legislation.

What is the Cumulative Impacts law and how did we get here?

In the 2023 legislative session, the State of Minnesota enacted the Frontline Communities Protection Act (FCPA), a new law that will look at the cumulative impacts of pollution on people living nearby. This means a change to the way facilities that create air pollution are permitted in many areas of Minnesota. In the future, different sources of pollution in these areas will be taken into account before an air permit is approved for a new facility. 

This change to the law recognizes that there are many factors that make people vulnerable to the way pollution harms health. Accounting for how air quality is already affected by existing facilities, in addition to other social, environmental, health, and economic factors, the permits will reflect the whole picture of a new facility’s impacts. 

But the work didn’t start last year. This new law exists because people who live in neighborhoods that are overburdened with pollution demanded change. 

In 2008, environmental justice activists organized for a state bill that required a cumulative impacts analysis be done for any facility seeking an air permit that would impact the East Phillips neighborhood in Minneapolis. This is a very diverse neighborhood that’s dealt with both heavy air pollution and was a superfund site due to an arsenic plume that spread through people’s backyards. Before this law, when a facility was seeking an air permit the pollution that would cause was considered in isolation, rather than how it added to the pollution from other sources that were already in the area.

Pollution in the Twin Cities metro is concentrated in neighborhoods where most of the people are low-income earners and are Black, Indigenous, or from other communities of color. This isn’t an accident. Because of zoning and red-lining practices, industrial facilities are more often in diverse neighborhoods. But no one should have to deal with the health problems that are caused by air pollution because of their income or race. 

In 2017, Community Members for Environmental Justice (CMEJ), led by Roxxanne O’Brien, began working with State Representative Fue Lee to draft legislation that would help protect neighborhoods overburdened by pollution state-wide. These Northside organizers were foundational to FCPA’s inception and instrumental in its passage, along with the bills' Senate author, Senator Bobby Joe Champion. 

People in these neighborhoods fought for a law to protect them. Now, any facility within a one mile range of an environmental justice community in the Twin Cities, Rochester and Duluth, will be required to look at the cumulative impact of the facility's pollution, in addition to other pollution that’s already present. Tribal nations will also have the option to opt-in to the law. 

But there are many questions about what key aspects of the act will look like in practice. Some of these questions will be answered in the rule-making process. 

What’s left for rulemaking?  

Even though the FCPA has passed, there’s a lot of work ahead of us to make sure the law is implemented effectively. This is often part of the process of creating a new regulatory system. After a bill passes the legislature, the regulating agency proposes and adopts a rule, which sets out how it will communicate and enforce the law in practice. In this case, the assigned state agency, the Minnesota Pollution Control Agency (MPCA), has requested comments on what should go into the new rule. 

To understand more about the public comment period, it’s necessary to know what the FCPCA does and what’s left to define. Here’s a brief outline of the scope of the bill:

• Defines “environmental justice areas” based on factors like income, race, and tribal status. 
• Adds regulatory protections to environmental justice areas in the seven county metro area, Duluth, and Rochester, with the ability for tribes in Minnesota to opt into the policy.
• Requires permit applicants seeking larger air permits to evaluate the cumulative impacts of their facility if they meet certain benchmarks.* This  includes new permits, any major expansions of permits, and the reissuance of permits. 
• Requires the commissioner to deny permits for facilities that are causing or  contributing to a substantial adverse impact* to the health or environment of  an environmental justice area, unless a community benefit agreement* is  developed.  
• Creates more transparency in the regulatory process by creating a public database of cumulative impact analyses and requiring multiple public meetings for facilities that conduct a cumulative impacts analysis. 
• Gives more power to environmental justice communities to reject permits for  unwanted facilities, and allow permits for desired facilities. 

Each of those asterisks represents one of the key aspects of the bill that will be considered in the rulemaking process: 

• When a facility is required to conduct a cumulative impacts analysis (the “benchmark”)
• Defining substantial adverse impact, which is the standard for when a permit should be denied
• The process for entering into a community benefit agreement - if a permit meets the standards for substantial adverse impact, the permit will either be denied or there must be a community benefit agreement.

Over the next three years MCEA will bring its legal and lobbying expertise to the coalition to make sure the FPCA and its rules stay as strong as possible. Rule-making will need a sharp eye on the language used by the MPCA  if the rule is actually going to slow additional pollution in these areas. Because the rule will impact industries, we expect organized and well-resourced opposition aimed at weakening the law and the rule. MCEA will be there to make sure the language is effective and doesn’t get watered down. 

But the new law won’t reach its real  potential to help people if they’re not involved in the process. This is why supporting community engagement throughout rule-making is one of the coalition’s main goals. 

How you can get involved

The Minnesota Pollution Control Agency is currently seeking public comments for the beginning of this rulemaking process. This initial comment period is an opportunity to tell the MPCA how you want them to conduct public engagement and what you would like to see from the rules. 

There are 5 community meetings throughout September,  2023. 

• Sept. 12th (1-3pm) - virtual
• Sept. 14th (6-8pm) - St Paul, Metro State University - Science Education Center Atrium
• Sept. 19th (5-7pm) - Brooklyn Center, Brookdale Library
• Sept. 21st (6-8pm) - Duluth, Clyde Iron Work - Event Center
• Sept. 26th (6-8pm) - Rochester, Graham Park - Aune Hall

We hope to see people across Minnesota at these meetings to connect and learn more about cumulative impacts legislation, environmental justice, and the legislative process.