Environmental Justice Update: EPA Issues Draft Cumulative Impacts Framework

In layman’s terms, cumulative risk assessment is a scientific process of understanding how new, individual stressors might impact pre-existing issues affecting a community. The US Environmental Protection Agency (EPA) defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” “Cumulative risk assessment,” in turn, is “an analytical approach to understanding the health effects of exposure to multiple environmental stressors and other stressors that could introduce vulnerabilities in the affected population.”

EPA recently released its Interim Framework for Advancing Consideration of Cumulative Impacts. The document is intended to help regulators address the sum of impacts from different types of environmental stressors on a community’s quality of life in a broader fashion than EPA has done previously.

What Is in the Document?

“Cumulative impacts” are based on the concept that geography matters and that “the benefits to risk-based environmental protection have not been distributed equally.” EPA focused on cumulative impacts because there is “substantial scientific evidence that pollution, socioeconomic disadvantage, lack of greenspace and other environmental benefits, and health susceptibility and vulnerability tend to be clustered spatially in recurrent, persistent, and systematic patterns” and “[s]cience shows that the connections between spatial concentrations of environmental burdens and benefits, their distribution in society, and the resulting health disparities continue over generations.” These issues often cluster around other factors like race and socioeconomic status.

As summarized by EPA, the draft describes principles including:

• Centering cumulative impacts work on improving human health, quality of life, and the environment in all communities.
• Focusing on the disproportionate and adverse burden of cumulative impacts.
• Applying a fit-for-purpose approach to assessing and addressing cumulative impacts.
• Engaging communities and incorporating their lived experience.
• Using available data and information to make decisions and take action.
• Operationalizing and integrating ways to consider and address cumulative impacts.

The goals of using this framework are to better protect historically overburdened communities from environmental impacts to better ensure that all communities have the potential to thrive. The document builds on concepts outlined in EPA’s draft Cumulative Risk Assessment Guidelines for Planning and Problem Formulation issued last year (discussed here).

Some important caveats about the draft:

• EPA intends the document “for the sole use of EPA employees and decision-makers” and not to create an independent right separate from those provided by other statutes, regulations, or guidance.
• The document “does not address when it is relevant or consistent with law to use a cumulative impacts approach.” Instead, EPA personnel are directed to confer with EPA’s Office of General Counsel or relevant Regional Counsel prior to using a cumulative impacts approach.
• Finally, due to a federal court injunction in Louisiana, “EPA will not impose or enforce any disparate impact or cumulative-impact-analysis requirements under Title VI against any entity in the State of Louisiana.” (For more on this litigation, see here.)

How the Election Impacts This Issue

EPA has been working on this framework for some time, and its release was to be expected, regardless of the election. This document can be read in conjunction with prior EPA tools intended for the EJ space, including EJ-focused air-permitting guidance released in 2022 which — like this document — clearly stated that it was not intended to change preexisting substantive rights. (For more, see here.)

While EJ issues are likely to be deemphasized by the incoming Administration, the overall framework presented in this document can be viewed as a best-practices toolkit for future decision-making, as the abstract and big-picture principles included in the document do not themselves appear likely to generate much controversy.

What Is Next?

EPA is accepting public comments on the draft through February 19, 2025.

Members of the firm’s Environmental and Energy & Cleantech groups regularly monitor state and federal EJ efforts.