"I live on the south side of Brockton, it’s called Campello. We have a train station and a sewage treatment plant and a recycling center,” said Kate Archard, a resident. “There are days when it smells, it just smells wrong.”

On days like that, Archard’s daughter Jacki would struggle to catch her breath. She couldn’t go outside without taking her inhaler due to her asthma. It was particularly bad on hot summer days during ozone season. Down the street, a friend of Archard’s lived in a senior residence high-rise building. She could take a finger and wipe up the black soot that accumulated on her porch.

Stories like these are common in Brockton, where overexposure to particulate matter in the air from the high concentration of polluting facilities has caused the city’s residents to suffer from abnormally high rates of environmental health conditions, including severe childhood asthma. According to Massachusetts Community Health Information Profile (MassCHIP) data, people in Brockton are hospitalized for asthma at twice the rate of the statewide average (324 per 100,000 people compared to 155), and they die of asthma at four times the rate of the statewide average (2.4 per 100,000 people compared to 0.6).

That is why when Archard found out that Brockton Power Co. had submitted a proposal to build a 350-megawatt natural gas power plant—a facility that would emit even more particulate matter into the air—less than a mile away from the town’s elementary school and a senior housing community, she decided to fight back. She joined Stop The Power, a community organizing group working to prevent the plant from being built in Brockton.

“I am a mother with a daughter who had asthma and I am an educator with the understanding that [the power plant] was being pushed right next to a school of children who were going to be outside playing at recess,” said Archard. She is a professor of business communication and ethics at University of Massachusetts, Boston. “Brockton already has a disproportionate level of childhood asthma rates as is. It is just not right.”

Several members of Stop The Power (left to right): Anne Beauregard, Brockton City Councilor for Ward 5; Kate Archard, Brockton resident, Michelle DuBois, member of the state House of Representatives for the 10th Plymouth District; Susan Nicastro, Brockton City Councilor for Ward 4; Barbara Carchidi, West Bridgewater resident. “We financed our own lawyer in the beginning but we could never afford to continue it was so expensive, and so if it weren’t for ACE we would have been out of the game a long time ago,” said Carchidi, a West Bridgewater resident who has been involved with Stop The Power since the beginning. “As individual citizens no matter how passionate you are were we could never do it because the cost of the lawyers even for a short period of time is astronomical.”
(Photo credit: Rowena Lindsay)

Brockton Power submitted its proposal to build the power plant in 2007 and for the past decade, residents of Brockton and the neighboring towns of East Bridgewater and West Bridgewater have been pushing back against the project due to public health concerns.

A city of 95,000 people on Massachusetts’ South Shore, Brockton is a 50.4 percent minority community with a median income per household of $48,500. The statewide median is $67,800. Communities with such demographics are often disproportionately exposed to pollutants and burdened by the associated health impacts compared with wealthier white communities.

“Environmental injustices can also be considered to occur when specific communities, regardless of their racial, ethnic or class-based demographic profile, are overburdened by the presence of environmentally hazardous sites and facilities relative to other communities in the state,” said Daniel Faber, professor of sociology at Northeastern University and director of the Northeastern Environmental Justice Research Collaborative. “In this respect, Brockton is one of the most environmentally overburdened communities in the state.”

In 2002, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) wrote an environmental justice (EJ) policy to ensure that state agencies act in a way that protects the most environmentally overburdened and vulnerable communities—communities such as Brockton, Chelsea, Lawrence, Lowell, Worchester, Roxbury and Springfield. But environmental lawyers, community organizers and people living in EJ communities echo the same refrain when it comes to the policy: It doesn’t go far enough.

Currently, Brockton residents are appealing the Department of Environmental Protection’s (DEP) conditional approval of Brockton Power’s permit, arguing that health data proves how overburdened their community is.

“The power plant…contributes to fine particulate matter, which are very small particles suspended in the air,” said Jonathan Levy, a professor of environmental health at the Harvard T.H. Chan School of Public Health. “If you’re a child with asthma or an older individual with diabetes or a history of heart disease, it is going to make the disease that you have worse. You’re going to have more frequent asthma flare-ups or a higher risk of heart attack. It can have a short-term effect when the event happens, and it can also just have a long-term effect on your health and wellbeing.”

Regardless, the residents case was not going well when they were basing their argument on the 2002 policy. However, in 2017 the EEA released an updated policy with a new section that gives state agencies the option to consider health impacts when using the policy to protect EJ communities.

With its status as an EJ community and record of environmental health conditions, Brockton is exactly the kind of community this new section of the policy was designed to protect. Considering the 2017 policy, the people of Brockton may be able to stop the power plant from being built, and if the policy holds up in court, it could set the precedent that EJ factors need to be considered in similar cases throughout the state.

2002 and 2017 Policies

In 2002, the EEA wrote an EJ policy for the state of Massachusetts’ environmental agencies. The policy defined “environmental justice community” as “neighborhoods…that meet one or more of the following criteria: 25 percent of households within the census block group have a median annual household income at or below 65 percent of the statewide median income for Massachusetts, 25 percent or more of the residents are minority, or 25 percent or more of the resident have English Isolation.” It also set forth a series of strategies to ensure that people throughout Massachusetts would have equal access to the state’s natural resources and that no community would unduly bear the burden of environmental pressures.

The policy was a step forward in codifying the problems that many low-income communities and communities of color face: proximity to hazardous waste facilities, poor air and water quality, lack of green space and high rates of lead poisoning and asthma—to name a few. However, the policy did little to change the agencies’ actions or improve life in EJ communities.

One of the main weaknesses of the policy was that it provided no way of looking at the cumulative effect of many hazardous facilities.

“If any facility met its [National Ambient Air Quality Standards, or NAAQS] requirements than the EJ policy was really ineffectual,” said Faber. “Then you can just put facility after facility after facility in Brockton and each one of those individual facilities can meet those permitting requirements, but the cumulative impact of them would be much greater.”

The EJ policy relies heavily on NAAQS data. The policy allows for an enhanced review of the impacts of projects on EJ communities, but only when those projects don’t meet NAAQS requirements.

“We were able to litigate the 2002 EJ policy before the MA Supreme Judicial Court (SJC)…and the SJC conducted judicial review of the case under the policy, but ultimately we lost, in large part because the thresholds for enhanced review under the 2002 policy were too high,” said Phelps Turner, former Alternatives For Community and Environment (ACE) lawyer who worked on the Brockton case. He is currently working for the Conservation Law Foundation (CLF).

It isn’t just the Brockton case that has followed this pattern.

“I have been testifying in EJ cases all over the state for years and we keep losing. We lose case after case after case,” said Faber. “I go in and show that here is a community that has been disproportionately impacted, it’s a low-income community of color so therefore that would seem unfair, from an environmental justice perspective, that…it is receiving yet another environmentally hazardous facility.”

And even when the environmentalists win these cases it is usually not because of environmental justice. In 2006, Chelsea, an EJ community north of Boston, was working to stop a diesel power plant from being built on the Chelsea Creek across from the town’s only elementary school.

“We were able to show that Chelsea’s air quality and our public health statistics were already so bad,” said Roseann Bongiovanni, executive director of Chelsea GreenRoots. “We were saying Chelsea’s public health is already compromised before even adding in a dirty diesel power plant…but it wasn’t how we won our campaign.” They won on a permitting technicality.

Frustrated activists from multiple communities including Brockton and Chelsea wanted the state to pay more attention to vulnerable communities. Finally they caught a break in 2014 when Gov. Deval Patrick signed Executive Order 552, codifying environmental justice standards in Massachusetts.

“What that executive order did was it essentially expanded the scope of environmental justice to all state executive agencies—not just the environmental agencies but also the Department of Transportation, Department of Housing and Community Development, etc.,” said Neenah Estrella-Luna, a former lawyer for ACE who worked on negotiating the executive order and the 2017 EJ policy. “The other really important piece of it was that it required that an interagency group be created to review and revise the policy.”

The executive order called for this new policy to be published within 60 days. It took until January 2017, two years after the order was signed.

“On the face of it, the 2017 EJ policy is pretty much the same,” said Faber. “There wasn’t really much new there on which to build except for one key thing: If there is evidence of environmental health-related impact, that would constitute grounds for…the state to take additional actions, and [the state] has some discretion to determine what those actions are.”

This new section in the 2017 policy defines vulnerable health EJ populations as communities that have higher than average rates of at least one of four health criteria: emergency department visits for childhood asthma; elevated childhood blood lead levels; age-adjusted hospitalization for myocardial infarction (heart attack), and; low birth weight. To qualify, a community must exhibit one or more of these factors at greater than 110 percent of the state rate for a sustained period of five years.

Brockton meets all four of these factors, as do several other communities in Massachusetts, including Chelsea, Worchester and Roxbury.

The policy states that these vulnerable health population criteria “are not meant to define new EJ populations that meet none of the previous EJ population criteria, but instead are meant to be used as a secondary screening process to evaluate existing health burdens and vulnerabilities among EJ populations... This screening process is a tool that was created for the public to use at their own discretion and is not meant to mandate use by EEA agencies, or any state agency outside of our purview.”

Essentially, this means that state agencies are not obligated to take this health data into consideration, but they can if they choose to. Many environmental lawyers, looking to use the new policy to bolster their cases were frustrated with this weak language

“We need ‘shalls.’ This needs to be required,” says Amy Laura Cahn, a lawyer for CLF. “What would certainly be a win is if state agencies said ‘we aren’t just allowed to do a cumulative analysis, we aren’t just allowed to look at how it impacts the current baseline public health conditions. We are going to make the choice and do that as a matter of core.’”

Estrella-Luna says that the purpose of this section was to give environmental agencies a way to reject projects, such as the Brockton power plant, in a way that minimizes litigation.

“There are times, in my experience working with the environmental agencies, where they know that a project is bad and they struggle for a legal hook that is going to minimize potential litigation,” said Estrella-Luna. “All environmental agencies are petrified of litigation even though they always win. This gives them some of that leverage to use their discretion in a positive way.”

However, the policy does not hold much weight if the agencies do not exercise that discretion. Exactly what is at the agencies’ discretion and what the agencies are required to do have been interpreted to mean different things. It could be a powerful tool for EJ communities, or it could continue to mean almost nothing.

This is what is up for debate in the Brockton Power case.

Litigating The EJ Policy

In 2011 the DEP issued a conditional approval of the Brockton Power’s permit to construct and operate the natural gas power plant.

The law firm ACE appealed this permit on behalf of Brockton residents in the DEP’s Office of Appeals and Dispute Resolution (OADR). They argued that Brockton Power and the DEP failed to demonstrate that the project’s benefits outweighed the burdens.

ACE lawyers argued that approving the permit violated Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color and national origin in programs receiving federal financial assistance. They also claimed violations of the EJ policy, state air permitting and modeling regulations and noise mitigation.

During the intervening years, the issues of Title VI, air permitting and modeling regulations and noise mitigation have been resolved in favor of Brockton Power.

All that remains to litigate now is the 2017 EJ policy.

The DEP interprets the EJ policy to mean the state is not required to conduct an enhanced review due to Brockton’s status as an EJ community or its health record, because it is looking at the impact of this one facility, not the cumulative impact of historic overburdening in the community.

“While it is noted that the pediatric asthma rate is significantly higher in Brockton, this information does not require the [DEP] to conduct any additional action under the enhanced public participation requirements or require an enhanced air quality analysis,” Deneen Simpson, DEP environmental justice director, wrote in her testimony. “Therefore, the 2017 EJ Policy does not require the [DEP] to make any change in the [conditional plan approval] condition based upon that review.”

During a remand hearing in October 2017, Tom Cushing, the DEP’s southeast region permit chief, said that “[The 2017 EJ policy] does not specifically require us to do anything additional, but it doesn't prohibit us from doing anything additional.” He did not describe the circumstances under which the DEP would take further action.

However, on the second day of the remand hearing, the judge made a statement that may tip the ruling in favor of the Brockton residents.

“The petitioners are free to argue that the policy, the 2017 EJ policy, goes beyond Title VI, that Title VI in essence is a minimum, and that the EJ policy requires the Commonwealth, specifically in this instance the DEP, to do more,” said Salvatore Giorlandino, the chief presiding officer of the OADR. “I am just taking note of the fact that the Commonwealth has a tradition of having civil rights statutes, antidiscrimination statutes that are coextensive, or go beyond, what federal law requires.”

He made clear that, in saying this, he was not deciding the case, but his statement opens up new possibilities for the people of Brockton.

“The residents certainly do claim that the 2017 EJ policy goes significantly beyond the deferral Title VI requirements and also beyond the Massachusetts state civil rights requirements that the Supreme Judicial Court have said are broader than the federal,” Lisa Goodheart, lawyer for Boston-based Sugarman Rogers Barkshak & Cohen, said in response to Garlanding’s unexpected comment.

A new recommended final decision from Giorlandino is expected at the beginning of May, and after that EEA secretary and OACR commissioner, Matthew Beaton, will submit a final decision. This final decision will likely go one of three ways: it could grant Brockton Power its permit, it could call for an enhanced review into the public health impacts of the power plant or deny the permit outright.

If Giorlandino and the DEP denies Brockton Power’s permit or calls for an enhanced review, than not only could the project potentially be stopped, but this case may give the EJ policy the weight it needs to be of service to the communities it is designed to protect.

There are countless communities around the state that have suffered similar health impacts as a result of being disproportionally exposed to pollutants because they did not have the political power to fight back against projects like this power plant. “We looked at Brockton in comparison with many other communities, but this is not a Brockton-specific problem,” said Levy. “Any lower-income community, especially any lower-income urban community in Massachusetts, is going to have comparable challenges.”

If the DEP uses this policy to justify further analysis, it would send a powerful message to all state agencies about the way departments are using, or not using, the EJ policy.

“I do think that would be pretty monumental for Massachusetts,” said Bongiovanni. “While we are a very progressive state, we are one of the worst in terms of disproportionally siting toxic facilities next to low-income communities and communities of color. And if a court system says ‘yes there was a violation of the EJ policy,’ I definitely think that other EJ communities like Chelsea and East Boston would try to use that policy more to our benefit.”

Bongiovanni and GreenRoots are currently trying to prevent Eversource from building an electrical substation on the banks of the Chelsea Creek. The proposed substation is located within 50 feet of 8 million gallons of stored jet fuel for Logan Airport and is also a site that is projected to be impacted by climate change and sea level rise.

Bongiovanni says it is a joke among community organizers that no agencies actually comply with the EJ policy and complaints are “falling on deaf ears. I think the deaf ears in the state would no longer be deaf if a court system actually upheld the policy and said that cases like this were violating the policy,” she said.

Others are more skeptical. Turner says this case will make a difference “only if the OADR agrees with that argument, which I believe is highly unlikely. Giorlandino’s initial (2016) recommended final decision denies our EJ policy and Title VI claims. While his recent statement is encouraging, I believe the needle will only start moving if it’s recognized in an order.”

Brockton is such a textbook EJ community that many activists are asking if the policy does not apply here, would it apply anywhere? And if it doesn’t apply anywhere, why have a policy in the first place?

“If there was ever a case where the state should take discretionary action—and they are empowered to do so by the EJ policy—and it fails to do so, then the EJ policy is basically meaningless,” said Faber. “Everything applies here. Here is a community of color where there is a significant immigrant population, and it has elevated health indicators across the board. And it is disproportionately burdened already.”

Dead or Alive?

After 10 years of negotiating permits and appeals, the power plant is no longer the contentious issue it once was. Mayor Bill Carpenter who, unlike the City Council, was originally a big proponent of the power plant, has turned his back on it. He recently told the Brockton Enterprise that the project was “dead.”

Jay Cashman, the developer behind the project, disagrees: “It’s a very, very high standard that they’d have to achieve to overturn that or get the Superior Court to overturn the DEP’s position,” Cashman told the Enterprise. “Unfortunately, ACE will probably take that back to Superior Court with very limited chance of winning.”

Neither Carpenter or Cashman could be reached for comment after repeated attempts.

“It’s not dead,” said Susan Nicastro, Brockton city councilor representing Ward 4. “That’s propaganda.”

The residents seem skeptical that after all these years the project will come to fruition, but they remain vigilant.

“We were told in 2009 it is a done deal… but here we are in 2018 and a shovel hasn’t even been in the ground,” said Archard. “It will be interesting to see if a Brockton Power plant ever comes out of the ashes. You never know. Until that land is sold and something else is there it is just sort of waiting in the wings. I was calling it the zombie power plant, the undead.”

Ed Byers, a member of Stop The Power, has another name for it: “a chicken running around with its head cut off.” While he doubts the plant will be built, he also doubts that environmental justice will win them the case.

“Brockton has become a dumping ground for Massachusetts, and I am being sarcastic, but the governor and everybody in Massachusetts, they don’t care. It’s Brockton,” said Byers. “It is sad for us as a community that they would dump something like this on the poorest of the poor and people of color. This power plant would not be on Main Street in a white wealthy area. But the people who fought this knew that environmental justice was not the way we were going to stop it.”

The Brockton Power Co. natural gas power plant would be built on a 13-acre plot of land in Oak Hill Industrial Park, which is less than a mile away from an elementary school and a senior housing community.
(Photo credit: Rowena Lindsay)

Edgar B. Davis Elementary School is located less than a mile away from the site of the proposed power plant. Each of the other power plants pictured in this story—Bellingham, Blackstone and Dighton, are also located close to elementary schools.
(Photo credit: Rowena Lindsay)