By: Luke Narducci and Amanda Reeve
Further building upon its Environmental Justice (EJ) Legal Tools, on January 11, 2023, the U.S. Environmental Protection Agency (USEPA) released the Cumulative Impacts Addendum updating its existing legal guidance for advancing EJ actions. This Addendum discusses a variety of federal and regulatory provisions and the considerations in which “cumulative impacts could be relevant in regulatory decision-making” and other such actions. It assists USEPA and regulatory partners by identifying “a wide range of authorities that can be deployed to address cumulative impacts affecting communities with environmental justice concerns and provides some illustrative examples.”
For instance, in regard to USEPA’s regulatory authority under the Clean Air Act in which it has the discretion to “extend attainment dates where the statutory criteria are met” upon the request of the state/local air regulatory authority, the guidance points to the U.S Court of Appeals of the District of Columbia Circuit’s decision affirming USEPA’s ability to “consider factors beyond those enumerated under the extension provisions, but that such exercise of discretion is subject to arbitrary-and-capricious review.”
To better illustrate the manner in which the USEPA could consider such factors to assess the cumulative impacts in discerning whether to extend an attainment deadline, the guidance refers to the USEPA’s October 2022 denial of a request from Texas to extend the attainment date of a Serious Nonattainment Area (NAA) for the 2008 ozone National Ambient Air Quality Standards.
The guidance explains that the USEPA considered the air quality trends for, and the existing burdens of pollution, in the NAA to reach its decision. In examining the air quality trends, indications from the air quality monitoring data were that it was unlikely the NAA would not be able to meet attainment by the extended date, or even qualify for a second one-year extension. In considering the existing burdens of pollution in the NAA, using data from EJScreen, the USEPA conducted a screening analysis of the cumulative pollution burden (“ozone pollution exposure, particulate matter concentration, traffic proximity and volume, percentage of pre-1960 housing units (a lead paint indicator), proximity to Superfund sites and hazardous waste facilities, and other factors) in certain areas of the NAA to assess the affect an attainment extension could have on the relevant population. The analysis revealed that the residents of certain parts of the NAA “are exposed to disproportionately high burden of ozone pollution…and [potentially] other pollution, based on high percentile results of these environmental indicators…assessed in EJScreen.” In denying the state’s request for an extension, the NAA’s immediate reclassification from “Serious” to “Severe” triggered “a more stringent set of implementation requirements” to be instituted promptly, thus facilitating “attainment as expeditiously as practicable.” The USEPA deemed this “protective approach is particularly warranted” as it had “identified populations that may already be overburdened with pollution.”
In addition to certain parts of the Clean Air Act, this Addendum additionally provides guidance on various water programs, waste management and emergency response programs, pesticides and toxics programs, environmental review programs, and civil rights in federal assistance programs.
In many state-implemented waste programs the so-called cumulative impacts have long been a consideration in permitting and facility operations. Hence the focus on this approach at this time is not novel but indicative of a vocal policy initiative.