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Advancing Environmental Justice: EPA Releases New Roadmap to Address Cumulative Impacts

The Environmental Protection Agency recently published a Cumulative Impacts Addendum (“Addendum”) to its Legal Tools to Advance Environmental Justice (EJ Legal Tools”), issued in May 2022. 

This Addendum builds on the cumulative impacts discussion in the EJ Legal Tools and provides additional detail and analysis regarding the EPA’s legal authority to address cumulative impacts affecting communities with environmental justice concerns.[1] These authorities include standard-setting, permitting, cleanup, emergency response, funding, planning, and state program oversight.

Although the Addendum itself is not a legally binding document, the EPA notes it is meant to serve as a guide for EPA attorneys and staff when examining the scope of the EPA’s authority to address cumulative impacts in specific scenarios. The Addendum also provides illustrative examples for a wide range of environmental statutes, including the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 

For example, under the CAA, the EPA has the authority to review and revise National Ambient Air Quality Standards (NAAQS), which are designated to protect the public health and welfare. Reviews of the NAAQS offers opportunities for assessing multi-pathway exposures to criteria pollutants and allows the EPA to take into account the cumulative impacts of those pollutants. Additionally, the EPA has the authority to reopen Title V operating permits if the administrator finds cause exists to terminate, modify, or revoke the reissuance of the permit.  Therefore, the EPA may consider cumulative impacts when deciding whether to reopen a Title V permit.

In the context of the CWA, the U.S. Army Corps of Engineers is required to conduct a public interest review prior to issuing a 404 permit authorizing the discharge of dredged or fill material into federally regulated waters. The EPA could provide comments identifying environmental justice concerns, including cumulative impacts. The CWA’s section 303(d) program also presents numerous opportunities for the EPA to consider cumulative impacts. For instance, when developing a Total Maximum Daily Load (‘TMDL”) for impaired waters, the EPA could allocate a lesser share of pollutant loads to discharges in communities experiencing greater cumulative impacts. 

Under CERCLA, the EPA is authorized to take actions necessary to protect the public health or welfare or the environment. This provision could be interpreted to provide legal authority for considering cumulative impacts in taking response actions or to ensure fair treatment and meaningful participation in environmental decision-making for communities with environmental justice concerns. 

By applying these various authorities, it is EPA’s goal to lay the groundwork for future governmental actions and stakeholder engagement to address cumulative impacts in communities with environmental justice concerns and to help accelerate the integration of environmental justice and cumulative impacts considerations into its policies, programs, and activities. However, the EPA cautions that while many of its legal authorities are clear, others may involve interpretive issues or require further analysis and consideration making it likely we will see many of these issues litigated in the courts and/or administrative tribunals. Therefore, the regulated community should take a proactive posture now by looking at their operations to identify any cumulative impacts and/or environmental justice concerns at their facilities that could be cause for concern by the EPA in the future. 

[1] The EPA’s Office of Research and Development defines “cumulative impacts” as “the totality of exposures to combinations of chemical and non-chemical stressors and their effects on health, well-being, and quality of life outcomes.”