On January 11, 2023, EPA’s Office of the General Counsel released a Cumulative Impacts Addendum (“Addendum”) to its May 2022 publication Legal Tools To Advance Environmental Justice, continuing to signal its focus on cumulative impacts analysis directed toward communities with environmental justice concerns.

The Addendum reiterates the definition of “cumulative impacts,” developed by EPA’s Office of Research and Development, which acknowledges chemical as well as non-chemical stressors (e.g., economy, community, home, school, demographics, safety) on public health and welfare.¹ As noted by EPA, cumulative impacts characterize the “potential state of vulnerability or resilience” of “individuals, geographically defined communities, or definable population groups.”²

Since the early days of his tenure, EPA Administrator Michael Regan has been working with legal advisors regarding EPA’s tools to address cumulative impacts. Years in the making, the Addendum compiles legal authorities and provides analysis and examples that EPA can use to address cumulative impacts on a statutory and program basis. The Addendum includes separate chapters on Clean Air Act, Clean Water Act, Resource Conservation & Recovery Act, Oil Pollution Act, Comprehensive Environmental Response, Compensation & Liability Act, pesticide and toxics programs,³ environmental review programs,⁴ as well as civil rights programs.

Given the breadth of programs covered, EPA notes that the Addendum is not static, exhaustive, or comprehensive, nor does it prescribe when or how to address cumulative impacts. Rather, EPA says the Addendum is only intended to be a reference guide for EPA attorneys who are “examining the scope of the Agency’s authority to address cumulative impacts in specific scenarios.”⁵ It is EPA’s intention that the Addendum foster dialogue between EPA decision-makers and its state, tribal, and local partners to address considerations related to cumulative impacts.⁶ EPA further qualified the Addendum by noting that it lacks legal effect;⁷ its application is subject to resource constraints;⁸ and certain of the authorities may involve novel legal interpretations not yet subject to judicial review.⁹

The Addendum is not EPA’s final pronouncement on cumulative impacts, but it is a significant step in what we expect to be an evolving set of EPA regulatory interpretations to address cumulative impacts in various exposure scenarios (e.g., air emissions, spills, etc.) affecting environmental justice communities. Indeed, the Addendum comes on the heels of recent EPA publications and forward-looking announcements demonstrating its commitment that cumulative impacts analysis be a priority consideration in the agency’s approach and actions in service of environmental justice. In December 2022, EPA’s Office of Air & Radiation released guidance outlining eight principles for including cumulative impacts and other environmental justice considerations in Clean Air Act permitting. Also in December 2022, EPA published its call for nominations of scientific and technical experts to peer review two draft documents related to cumulative risk analysis under the Toxic Substance Control Act. Expected by September 2023, as stated in its Equity Action Plan, EPA plans to release a cumulative impacts framework regarding civil rights law compliance. Also expected in 2023, EPA’s Office of Environmental Justice and External Civil Rights plans to release guidance that will consider cumulative impacts in programs, policies, and activities to avoid discriminatory effects.

CONCLUSION

As EPA decision-makers, its partners, and the regulated community grapple with the contours of the agency’s authority and ramifications of cumulative impacts analysis on wide-ranging programs under EPA’s purview, companies would do well to keep informed on the latest cumulative impacts guidance, look for opportunities to meaningfully participate at the state and federal levels in changes to permitting programs to incorporate cumulative impacts considerations, and seek legal assistance in identifying and assessing environmental justice concerns in their operations and business plans proactively, prior to anticipated permit renewals, litigation, or transactional activity.

¹EPA, Cumulative Impacts: Research Recommendations for EPA’s Office of Research and Development (Sept. 2022), EPA/600/R-22/014a, at 4, available at https://www.epa.gov/healthresearch/cumulative-impacts-research (defining “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”).

²EPA, EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum (Jan. 2023), Pub. No.: 360R22002, at 2, available at https://www.epa.gov/system/files/documents/2022-12/bh508-Cumulative%20Impacts%20Addendum%20Final%202022-11-28.pdf (hereinafter “Addendum”).

³E.g., Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA).

⁴E.g., National Environmental Policy Act (NEPA).

⁵Addendum at 1.

⁶Id. at 4.

⁷Id.

⁸Id.

⁹Id. (certain legal authorities “may involve interpretive issues or call or further analysis and consideration of other legal issues.”)