James Hodge: Q&A on Public Health Law and Health Impact Assessment

Apr 6, 2012, 2:59 PM, Posted by

James Hodge James Hodge, Network for Public Health Law and Arizona State University Public Health Law and Policy Program

A new report finds that some existing laws on the books across the nation offer critical opportunities to improve Americans’ health through the use of health impact assessments.

>>Read more on the new report.

>>Follow our coverage from the National HIA Meeting.

NewPublicHealth spoke with Professor James G. Hodge, Jr., JD, LLM, principal investigator and director of the Western Region of the Network for Public Health Law, about the report.

NewPublicHealth: What’s the background on the report?

James Hodge: This project that we’ve done in conjunction with The Pew Charitable Trusts and the Robert Wood Johnson Foundation has taken a very interesting and important look at the role of law in relation to support for the use and implementation of health impact assessments nationally. This was really uncovered material prior to our research in this arena. We were aware of specific instances where federal, state, tribal or local governments had suggestively made HIAs an important component of particular reviews for public safety or public health through laws, but we had not done any national, systematic study to really assess how extensive that is, particularly in non-health sectors. So, for example, in areas like transportation and environment and waste management, to what extent did law support the use of HIAs? The report has provided some initial answers that really are quite profound in this attempt to illustrate just how extensively law can be supportive of these particular initiatives.

NPH: Based on your review of the laws, is it still a novel concept to consider health impacts in projects in sectors as varied as the environment and transportation?

James Hodge: Yes. HIAs are still something of a novel concept for policy-makers out there to really assess and realize and the full extent of the value of that level of assessment. However, what the law recognizes is the need for sophisticated assessment of health and public health-related implications underlying policies in these areas. And so, what you’re seeing is a really substantial support for the potential use and development of HIAs within the law, even though the law doesn’t explicitly mention them as the sole source of potential assessment.

The most important observation we found in this research involving 30 jurisdictions across the United States is that law is capable of supporting the further use of HIAs nationally.

NPH: Will the growing trend of doing HIAs—the meeting this week reported on at least 170 completed or in progress in the US—help perhaps create new laws that address the use of HIA?

James Hodge: Oh, absolutely. I think that’s highly predictable. This is one of those techniques that you’re seeing now nationally become quite well-known, quite heavily used. And sometimes it takes law and policy-makers a little bit of time to catch up to those trends by recognizing a new tool available to them that actually provides answers that they’ve sought for years. Everybody wants to know what the health and public health impact of specific policies in key areas are. To date we’ve not always had the most sophisticated tools or ways to measure that. HIA provides the promise of real substantial and meaningful analyses. Law and policy-makers are starting to figure that out. But what’s also very exciting is that you see the support for HIAs and you see the opportunity for them to be conducted without even having to change a single line of statutory or regulatory law.

NPH: Are there untested opportunities to take health into account in conditions that shape the conditions of where we live and work based on the laws you reviewed?

James Hodge: I’m just going to say absolutely to that, there’s no question. Untapped opportunities extensively across the board. As I mentioned, law and policy-makers and public health officials, of course, completely recognize the need to better assess these policies and the health in all policies approach. The capacity to use HIAs to accomplish that is just so strong. People recognize that, and the laws are there to provide some impetus for these particular types of assessments to be done, but we’re not tapping into that completely yet, often because there are questions as to whether we have to do that level of assessment when something else perhaps easier or less significant could be done to satisfy the law. I believe judicial interpretations, as well as regulatory interpretations from state health agencies and departments of transportation, departments of energy and other place all levels of government will lead to greater recognition of this type of assessment. You’re speaking to HIAs being the state of the art assessment that has to be done to further a particular policy if the law requires health or public health initiatives to be recognized and to be studied as part of that initiative.

NPH: Can you give an example of a law that might be a good model for other communities where the wording of the law is such that it not only allows the HIA but maybe perhaps even invites the HIA?

James Hodge: That’s a great question. Washington State gives us a gold standard. The state Route 520 bridge replacement project in the Seattle/King County is a major new bridge that would go across a particular part of the waterways there. They have explicitly in statutory law made it clear that an HIA must be performed to evaluate the project's effects on air quality, greenhouse gas emissions and physical, mental and social well-being, and that’s explicitly written into statutory law. In other words, they couldn't go forward on this bridge project without having done the HIA, which has now been completed. And, what they learned from it was really fascinating. They’ve redesigned the bridge project based on some of the results from the HIA.

In Texas, there’s a provision in the health and safety code that talks about what must be included within a solid waste permit application, and so where you may dump solid waste in every state is regulated very heavily. In Texas they make quite clear that you have to include feasibility studies that evaluate alternatives in terms of their public health, physical, social and economic and other types of implications. That language requiring a feasibility study is entirely supportive of the potential to implement and use HIAs to accomplish that. The problem, of course, with that language is it doesn’t explicitly require an HIA like Washington State does with its bridge project, but Texas state law provides more than sufficient support for any regulatory agency or any court to require an HIA to fulfill the mandate of the statute. I think what you’re seeing in most states now is statutory language along those lines in many of these non-health sectors and we can ramp that up to another level and explicitly require HIAs as a named type of assessment. Maybe that’s the future, but for now I think there’s more than enough legal support for the use of HIAs based on language in Texas and in other jurisdictions.

NPH: What are the next steps for making sure these opportunities to conduct HIAs are utilized?

James Hodge: That’s a very fine question because it’s very important to recognize that while our findings are favorable for the purposes of using HIAs right now based on existing law, we could improve the law significantly to really see these be ushered in at a higher level. I think that’s the change you’re going to start to see in a regulatory way, and we do emphasize that as a really good goal for some states and the federal government to start looking at key ways to regulate with HIAs explicitly in mind.

There are a few more trends that are also important to note. There are areas of law such as nuclear waste disposal where a federal preemption may actually stop state or local governments from requiring HIAs when they would like to. There are neat and simple ways to resolve that type of issue, and I highly recommend that as an area where we have to remove the barrier.

And then finally, one trend that I think we’re starting to see is that health assessments are going to be used increasingly, particularly HIAs, because they’re being asked for in court for the purposes of litigation. So you’re seeing more courts begin to use and recognize the value of HIAs in specific types of ways. They can be used, for example, as evidence when a litigant is trying to challenge a proposed project or action and the HIA results are used to show potential deleterious effects on public health. HIAs are also sometimes being used defensively, to show some sort of negative health effect will not occur or to demonstrate compliance with health or safety requirements.

In either capacity, HIAs can add value, through court litigation, and up the stakes for how governments will respond to the health and public health implication, particularly in the non-health sectors that we review.

NPH: How is the growing number of HIAs impacting the work of the Network for Public Health Law?

James Hodge: At the Network, we’ve been putting on that hat since the start of the Health Impact Project, both in conjunction with them as well as fielding questions at the Network on the breadth and extent of legal support for HIA so we’re seeing HIAs emerge as a critical, valuable tool.

We’ve been trying to usher along the fact that the law not only supports HIAs, but in most cases has nothing to say about prohibiting them or stopping them.

This commentary originally appeared on the RWJF New Public Health blog.