On January 13, 2023, The United States Environmental Protection Agency (EPA) released the “Cumulative Impacts Addendum to EPA Legal Tools to Advance Environmental Justice.”
The addendum provides a collection of examples of the “Agency’s legal authorities to identify and address cumulative impacts through a range of actions…”
As we have pointed out on several occasions, Environmental Justice (EJ), permeates seemingly every action by the current administration. EJ is not a federal law passed by congress, rather it is a 1994 Executive Order (EO) issued under President Bill Clinton. While previous administrations have given “lip service” to EJ, President Biden places great emphasis on the EO.
More Tools for Qualitative Evaluations of Potential Environmental Impacts
The regulated community is accustomed to quantitative limits on air and water discharges, establishing reportable limits, defining hazardous waste, etc…However, the EJ program and the recent addendum is qualitative in nature. For example, consider the following definitions:
The EPA’s Office of Research and Development (ORD) developed a definition of cumulative impacts as “the totality of exposures to combinations of chemical and nonchemical stressors and their effects on health, well-being, and quality of life outcomes.”
They define chemical stressors as “exogenous environmental compounds released into the environment that change or damage living organisms or ecosystems.”
They define nonchemical stressors as “factors found in the built, natural, and social environments, including factors such as the economy, community, home, school, demographics, safety, and welfare.”
Cumulative impacts are characterized as the “potential state of vulnerability or resilience of individuals, geographically defined communities, or definable population groups.”
Will factors such as local demographics factor into your next environmental permit (Image by dapedwa from Pixabay)?
Document will Guide EPA Attorneys
The Addendum is not a legally-binding document. The EPA states that it is intended to serve as a guide for EPA attorneys and staff when considering the EPA’s authority to address cumulative impacts in specific scenarios.
According to a blog by the National Agricultural Law Center, “EPA has concluded that it has the ability to consider cumulative impacts while carrying out any of its agency actions, including setting standards, issuing permits, conducting environmental cleanups, initiating administrative or judicial action, and other forms of decision-making. EPA notes that how it addresses cumulative impacts will vary depending on the action it is carrying out.”
While all permits will have some subjectivity based on the regulator handling the permit or renewal, this seems to add a new layer of subjectivity incorporating a number of qualitative “tools.”
Cumulative Impacts may Factor in Environmental Permits/Cleanup Efforts
The Cumulative Impacts Addendum has a number of examples on when and how the EPA may consider cumulative impacts under federal regulations, including the Clean Water Act, The Clean Air Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act, to name but a few…
As the EJ program continues to grow in scope and breadth, it raises questions about how this program, and more specifically, how state and federal regulators will use this program when renewing permits and issuing new permits.
One more Factor for the Regulated Community to Consider
For the regulated community, this is one more factor that may affect permitting and remediation efforts. With this in mind, maintaining compliance with your environmental permits (including administrative and training aspects of permits) will be extremely important as well as good relationships with the community in which you operate.
If you need assistance with an environmental compliance issue, you can use our contact form or call us at 248-932-0228 (see our Environmental Compliance Page).
For more information, read the “EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum” dated January 2023.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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