By Cindy Alia                                                                                                                                                                              February 11, 2019

On Wednesday the 13th, at 8:00 am the Senate Committee on Environment, Energy & Technology has scheduled SB 5489 for public hearing.  The bill is entitled "Establishing a healthy environment for all by creating a definition of environmental justice, directing agencies to address environmental health disparities, and creating a task force." 

You can read the text of the bill which has a typically misleading title here: This bill will not establish a healthy environment for all, but will attempt to create a healthy environment for those certain people who now live in an environment that government has destroyed.

Questions arise that a thinking individual might immediately look for answers to in the reading of the bill.  Those answers will not be found, they will eventually, it is supposed, be created by the agencies of the state. 

For example, one goal purports to " Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities."  There is no clearly described pathway to the balance, how it will "permit" high standards, or what is meant by a wide sharing of life's amenities.

Frankly this reads much like the pipe dreams of what some in society are calling "democratic socialism" but is building out a categorization of such pipe dreams and then attempting to legislate those dreams.  Excuse me, but does not the rule of law require concrete definitions so equal opportunities exist?  Can equal outcome, however nice it might sound, be legislated? 

An additional concept that on the surface sounds okay…but does not explain how the claimed responsibilities would be legislated or enforced is this sentence - The legislature has further recognized that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.  These inalienable rights I have not found in our constitution, but hey, if it feels good, call it an inalienable right! 

This bill goes on with attempts to define what environmental justice is and to what or whom it will apply.  “"Environmental justice" means the fair treatment of and right of all persons, regardless of race, color, national origin, ethnicity, income, wealth, or other demographic or geographic characteristics, to have access to a safe, healthy environment to live, work, learn, practice spirituality, and play.  "Equity analyses" refer to analyses that can be used to determine or evaluate environmental justice. 

In all seriousness, it is time for the grown-ups in this state to intervene.  While on the surface, the bill sounds as if it will help people in need of a better environment to somehow have the government achieve that for them, but how in reality can the government take for instance, some of the concrete jungles it has created and give the people living in them some kind of better environment?  What will be the standards for that better environment, and how will targeted communities be improved?  Can they be? 

This is the stated end goal of the bill: The state agencies shall issue policies, guidance, and rules necessary to implement the use of cumulative impact analyses to identify highly impacted communities, to create target environmental health standards, and to prioritize these communities and their vulnerable populations in the development, adoption, implementation, and enforcement of environmental laws, regulations, policies, and funding decisions.

The bill has hidden blue pills that should be considered by those of us who will most likely find themselves impacted by the language in the bill.  Some reading between the lines is needed, but without clearly defined goals, such wording as “the state agencies shall adopt such rules, policies, guidance, and prioritizations as are needed to reduce disproportionate environmental burdens and promote attainment of environmental health targets”, and the insertion into law of the precautionary principle “"Precautionary approach" means where there are threats of serious or irreversible damage, lack of full scientific certainty is not used as a reason for postponing measures to prevent environmental degradation.”  Though worded clumsily, the intent is clear.

These blue pills are red flags, CAPR has rated this bill POOR with good reason, read it and see where the language is alarming to you.  Call the legislative hotline and tell your legislators if you are Pro Or Con on this misguided bill!

Testimony against this bill:

Citizens’ Alliance for Property Rights

While it can be safe to say no member of CAPR wishes to see degradation of the environment nor poor health for any citizen of Washington State we find HB 2009 creates mandates that will not be attainable through state governance. 

This bill creates an inalienable right to a healthful environment and compounds this extra constitutional right with a mandate that each person has a responsibility to contribute to the preservation and enhancement of the environment. 

This bill misrepresents our form of government as a democracy when in fact our state is a part of a representative republic.  This is the basis for the Administrative Procedures Act that requires public notice, input, and a meaningful opportunity to be heard before decisions are made.  There is little doubt our state agencies can do more for the people of the state to make them aware that these opportunities exist.  Barriers to this participation do exists, however, the duty of the state to its citizens requires that all citizens are afforded equal opportunity to participate in governance, and not afford that opportunity to targeted groups of citizens.  Additionally, if funding decisions are to be available to any citizens of the state those same funding capacities are to be afforded to all citizens of the state.

It is not within the authority of the state to mandate a productive, aesthetic, or culturally pleasant environment, while all wish to be as productive individuals as possible, this bill mistakenly conflates human productivity with environmental productivity.  Mandating aesthetically and culturally pleasing surroundings to its citizens, are conditions that can’t be defined.  Aesthetics and cultural pleasure are as widely diverse as are each citizen of this state.  A bill may not mandate attempting these goals for targeted groups, it must mandate such goals for all citizens, however unattainable the goals may be.

A bill may not mandate a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities.  Such a mandate is extra constitutional, outside of the authority of state agencies, and violates the legal principles of the Administrative Procedure Act.

The proposed task force does not include representation of groups who would be mandated to balance resource use with high standards of living and does not include representatives of groups who would be mandated to provide a wide sharing of life’s amenities.  Those groups are not identified in this bill.

This bill attempts to mandate by law the precautionary principle, and the use of cumulative impact analysis of environmental conditions, which is in direct conflict with existing law that mandates the use of science and peer reviewed science.  Implementation and scientific confirmation of these theories would be prohibitively expensive, especially if applied to agency actions or rulemaking that are not applicable to these theories.

The department of Ecology does not hold the authority to initiate the rulemaking process to adopt rules to implement the task force's recommendations for the purpose of providing uniform rules and guidelines to all state agencies serving on the task force.  The authority for each agency of the state to make rules must be authorized by the legislature on a legislative basis that addresses each agency separately and with a purpose as provided in the Administrative Procedure Act.

In creating legislation, it is always important to adhere to the Washington State Constitution, SECTION 32 FUNDAMENTAL PRINCIPLES. A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.


February 12, 2019