Karen Clark in 2014. Image: David Oakes

We dedicate this issue to Karen Clark, a Minnesota legislator and trailblazer for justice and environmental protection. She championed legislation requiring consideration of cumulative impacts before permits could be granted in areas of South Minneapolis that are now part of Environmental Justice communities. She died on June 30, 2026.

Statistically, low-income people and people of color have shorter lives and poorer health than white Americans. In addition to reduced access to health care, they tend to live in crowded, substandard housing, closer to busy streets. They may be underserved by infrastructure like grocery stores, parks and green space. In addition to all these deficits, many of their neighborhoods are degraded by pollution from nearby industries.

Scientists are giving new attention to the complex interplay of such stressors and their effects on low-income residents and people of color.

The Minnesota Pollution Control Agency’s website tells us that overall, just over a third of the state’s communities face air pollution-related risks above established health guidelines, but for low-income communities, the number is more than half, and for indigenous communities and people of color, it’s nearly 80 percent.

In 2023 the Minnesota Legislature passed a law designed to interrupt that pattern. The law defines “environmental justice areas” (EJ areas) as census tracts which include one of these factors:

It requires that decisions affecting such areas must give “due consideration” to the history of the area and residents’ cumulative exposure to pollutants as well as to current socioeconomic conditions that could amplify the harm.

The Minnesota Pollution Control Agency (MPCA) has been working for three years to translate that mandate into a workable and fair process that businesses, people, and governments must follow in order to “make it so,” which is always a lot harder in real life than in a Star Trek show.

Outreach

The MPCA hired a consultant to advise on its public outreach campaign. Among other efforts, the agency held multiple public meetings around the state, staffed events, held one-on-one conversations, interviewed residents of EJ areas, presented at community events, hosted webinars, collected written comments, convened five technical stakeholder meetings that were recorded and open to the public, coordinated a Community Benefit Agreement Panel, and discussed the Cumulative Impacts rule with the MPCA’s Environmental Justice Advisory Group (EJAG) seven times. The agency translated materials and provided translation services at some of the events. When possible, the MPCA also posted recordings of the meetings on its YouTube channel.

Although this ambitious effort has gone under the radar for most Minnesotans, affected individuals and interested groups have been paying close attention and are making their views known to the MPCA. Many have spoken at public meetings, including a hearing before Administrative Law Judge (ALJ) Kimberly Middendorf on September 1^st.

The draft plan

Advocates hoped the measure would apply across the state, but for now it only applies in low-income and BIPOC (Black, Indian, People of Color) communities in the Twin Cities, Duluth, and Rochester.

When an industry applies for an air permit for a facility in one of these Environmental Justice areas, the new law requires the applicant to conduct an analysis of the cumulative impacts, including a list of the stressors present in the community, before the MPCA can grant the permit. In the draft rules, this requirement only applies to new construction, to new facilities that have the potential to emit certain levels of certain types of pollution, and to a renewed permit for a facility that has in the last three years received an “enforcement action.” This is a warning from the MPCA that the company is not in compliance with existing rules.

Citizen advocates see that limitation as a loophole and they don’t like it. “Waiting for a violation means the community absorbs the harm before anything is done,” said Monserrat Perez Barrios, Environmental Justice Community Outreach Specialist with COPAL, Comunidades Organizando el Poder y la Acción Latina (Communities Organizing Latina Power and Action).  “Any permit reissuance should trigger an analysis, not just for facilities that are already polluting too much,” she said in an interview. 

Other commenters agree. Evan Mulholland is Healthy Communities Program Director with the Minnesota Center for Environmental Advocacy, a non-profit lawyers’ group. ““There’s no difference in the statute between a new permit and reissuance or expansion,” he said in an interview. “We’re urging the MPCA to create a benchmark for permit renewals. The benchmark should consider total emissions from the stationary source up for permit renewal and the level of existing environmental and health stressors in the community. This will allow us to make sure the worst existing polluters and places with the most stressors will be caught.”

Further, commenters criticize the two-year delay before the law becomes effective.

Another challenge comes from the need to define how much is too much pollution. The law requires the MPCA to reject a permit request if —in the absence of a community benefits agreement (see below)—the facility would have a “substantial adverse impact” on the community. The determination of what level of impact is both substantial and adverse remains, in most cases, up to the MPCA Commissioner’s discretion, as laid out in the draft rule.

However, according to the draft rule, if the air quality modelling analysis indicates that any increase in emissions due to a facility expansion or a new facility would amount to 50 percent or more of any ambient air quality standard, then the MPCA must find that that permit action would have a substantial adverse effect.

Perez Barrios said the process treats pollutants too much in isolation. “A facility’s emissions may appear acceptable on their own, but when you factor in a nearby highway and pollution from other facilities, the community’s actual burden is far greater than any single threshold suggests. These combined pressures create a snowball effect.”

The MCEA’s Evan Mulholland shared that concern. “There’s nothing to take into account the cumulative situation, and that’s what this law is supposed to do,” he said.

The MPCA created an interactive map of cumulative impacts in the covered census tracts.

It identifies 26 stressors, including air, land and water pollution and such factors as traffic, social, and public health. But the draft rules don’t set priorities or a numeric formula for considering those stressors in a cumulative impact analysis.

The draft rules seem to expect that facilities will end up adding to the pollution burden. They provide for Community Benefits Agreements (CBAs) in which the emitter would agree to perform compensatory actions to mitigate the harm. For example, installing better pollution capture equipment, only operating on certain days of the week, or other ideas the community might have to improve their living conditions. It could even include planting trees or sponsoring sporting groups.

Much of the criticism centers on these CBAs. At the September 1 hearing, veteran activist Roxxanne O’Brien said community members should be centrally involved in designing any CBA. “Nothing should be created about us without us,” she said. Further, EJ communities “must be given tools and resources to understand technical aspects of the projects.”

As the rules stand now, a CBA agreement is between the facility and the MPCA. Several commenters suggested the MPCA should create an ad hoc community council or advisory group to set priorities and negotiate with the permit applicant. Perez Barrios said the law should require facilities to partner with trusted community organizations in writing the agreement. “Community members have legitimate reasons to be skeptical of the industry,” she said. “Above all, the community should have the same power as the industry to negotiate benefits.”

Ultimately, critics want to be assured that the MPCA has the power to deny a permit. This reporter has been following the agency for thirty years and is unaware of any occasion on which it denied a permit. The normal process involves endless negotiations between the agency and the applicant.

This reporter has been following the agency for thirty years and is unaware of any occasion on which it denied a permit.

That pattern doesn’t protect people, said MCEA’s Evan Mulholland. “It makes sense that at some point in the process, if a Community Benefits Agreement is not actually benefitting the community, and whatever the applicant proposes doesn’t meet the need, the MPCA must be able to say ‘no.’”

COPAL’s Monserrat Perez Barrios put it this way: “That kind of endless revision loop favors the industry. The benefit should be a measurable health improvement that actually happens. People living next to these facilities, breathing that air every day, should be central to deciding if the facility is a good neighbor.”

Industry response

Several industries provided written comments to the Administrative Law Judge. In general, they called for greater objectivity and clearer definitions and expressed concern about the time and cost required to comply with the law.

The Minnesota Chamber of Commerce submitted 18 pages of detailed comments signed by Andrew Morley, the Chamber’s Director of Environmental Policy.  “The proposed rule fails to provide clear, objective decision criteria, relies on broad agency discretion, creates uncertainty regarding how permit decisions will be made, and introduces significant and unquantified impacts to permitting timelines and costs.”

The Chamber recommended that the MPCA not base its efforts on permitting but rather proactively assess EJ communities to identify which types and quantities of incremental emissions would be likely to have a substantial adverse impact. This could enable MPCA to “establish benchmarks to determine whether cumulative impact analyses are necessary and could also be used to determine in advance what types of environmental analyses are required.”

In general, the Chamber said the rules as written would mean a step backward in recent efforts to streamline environmental review processes.    

The Administrative Law Judge will accept written comments until September 21. Electronic comment submittal is available through the Court of Administrative Hearings’ eComments website.

After a five-day rebuttal period, the ALJ will submit a report to the MPCA, which has made no public announcement about when they might take effect. Meanwhile, children still run, play, and breathe in the unhealthy air of their neighborhoods.