EPA Publishes Extensive Guidance on Agency Authority to Address Cumulative Impacts

On January 11, 2023, the U.S. Environmental Protection Agency (EPA) issued guidance on the agency’s legal tools to address cumulative impacts. In “EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum,” (“Cumulative Impacts Guidance” or “Cumulative Impacts Addendum”), the agency set forth a host of legal authorities that it believes it and other stakeholders can use to address the cumulative effect of pollutants on overburdened communities. While EPA was careful to note that the guidance does not have any legal force, the document suggests numerous ways that EPA might seek use legal process to address cumulative impacts. Stakeholders need to be aware of this guidance because EPA’s broad interpretation of its authority to address cumulative impacts could affect the full range of agency action from permitting to enforcement to project siting to cleanup decisions and more.

The Cumulative Impacts Guidance is an addendum to EPA’s May 2022 “EPA Legal Tools to Advance Environmental Justice” guidance, which broadly addressed the agency’s authority to address environmental justice (EJ). It is the latest in the administration’s efforts to identify and address “cumulative impacts” (a major focus of EJ groups and communities). This effort follows the administration’s great strides in mapping of cumulative impacts through such tools as the Environmental Justice Index from the U.S.  Department of Health and Human Services (the first national, place-based tool designed to measure the cumulative impacts of environmental burden through the lens of human health and health equity) and EJSCREEN 2.1 (EPA’s latest update to the Agency’s EJ SCREEN tool that allows users to look across all 12 environmental indexes at once, providing a “cumulative outlook” on vulnerable populations facing higher pollution burdens). The Cumulative Impacts Addendum focuses on the issue of how “the totality of exposures to combinations of chemical and non-chemical stressors and their effects on health, well-being, and quality of life outcomes.” The agency explained that its purpose was to create a resource document for agency staff and decisionmakers as well as other stakeholders to better understand the agency’s authority in this area.

In the Cumulative Impacts Guidance, EPA walks through the agency’s potential avenues to address cumulative impacts in a wide variety of statutes including clean air, clean water, waste management, pesticides and toxics, environmental programs, and civil rights programs. For example, in the context of the Clean Air Act (CAA), EPA notes that it may consider cumulative impacts in (among many other areas) setting National Ambient Air Quality Standards and in considering whether to reopen Title V permits. Moreover, EPA notes that its authority to collect information under Section 114 could be used to gather information to assess cumulative impacts. Considering the agency’s authority to address imminent and substantial endangerment under CAA Section 303, EPA noted that multiple air pollution sources that together pose the risk of cumulative impacts to a community might provide the agency with grounds to act even if pollution coming from a single pollution source would not provide such grounds. In reference to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), EPA explains that the statutory language “public health or welfare or the environment” can be interpreted to include cumulative impacts and that such cumulative impacts may be considered in setting remedial goals under CERCLA.

Given the breadth of EPA’s Cumulative Impacts Guidance, we anticipate the agency may seek to bring these legal tools to bear in a wide variety of circumstances. Experience has demonstrated that the important issue of EJ has already served as a key driver for EPA’s actions; the question of cumulative impacts may soon animate further agency action.