Earlier this month, the Environmental Protection Agency (“EPA”) released a new guidance document regarding the agency’s authority to consider the cumulative impacts of pollution exposure on vulnerable and under-served communities. This guidance document builds on the discussion of cumulative impacts began by EPA in a document the agency published last May titled EPA Legal Tools to Advance Environmental Justice (referred to as EJ Legal Tools). According to EPA, EJ Legal Tools is an “updated and expanded compilation of legal authorities available to EPA for identifying and addressing the disproportionate impact of pollution on underserved and overburdened communities[.]” This new document focuses on just one of those legal authorities – EPA’s authority to address cumulative impacts.

Both guidance documents are part of EPA’s recent push to address environmental justice, which the agency defines 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.”

What Are Cumulative Impacts?

The term “cumulative impacts” has been used in a variety of different legal contexts, and by a variety of different federal administrative authorities. In certain instances, “cumulative impacts” can refer to the impacts from a specific type of pollutant or stressor. In other instances, “cumulative impacts” can refer to the burden of multiple pollutants or stressors that combined affect public health.

For the purposes of EPA’s new guidance document, the agency is using the definition of cumulative impacts developed by EPA’s Office of Research and Development (“ORD”) that it uses internally to inform its research operations. ORD defines “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.” “Chemical stressors” are further defined as “exogenous environmental compounds released into the environment that change or damage living organisms or ecosystems.” “Non-chemical stressors” are defined as “factors found in the built, natural, and social environments, including factors such as the economy, community, home, school, demographics, safety and welfare.” ORD goes on to state that cumulative impacts characterize the “potential state of vulnerability or resilience” of “individuals, geographically defined communities, or definable population groups.” In other words, cumulative impacts refers to the burdens that exposure to different pollutants, in combination with other environmental factors like location and access to resources, that affect a community.

According to EPA, its legal authority to address cumulative impacts in communities with environmental justice concerns “permeates the full breadth of the Agency’s activities.” 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.

What is in EPA’s New Guidance Document?

EPA’s new guidance document, titled EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum (referred to as Cumulative Impacts Addendum), is a follow-up to EJ Legal Tools which EPA published last May. EJ Legal Tools was published in part as a response to an Executive Order issued by President Biden that directs federal agencies to “make achieving environmental justice part of their missions” by addressing “climate-related and other cumulative impacts on disadvantaged communities.” In EJ Legal Tools, EPA provides an overview of the legal authorities that either “mandate or provide the agency with discretion to consider the environmental justice-related impacts of its actions[.]” One of the legal authorities identified by EPA in EJ Legal Tools was the agency’s ability to consider cumulative impacts when carrying out agency actions. In Cumulative Impacts Addendum, EPA expands on that legal authority, by providing examples for when and how to consider cumulative impacts in certain scenarios. Cumulative Impacts Addendum is not a comprehensive look at the scope of EPA’s authority to consider cumulative impacts, it also does not require EPA to engage in specific actions. Instead, Cumulative Impacts Addendum is tended to be used as a reference for EPA staff to better understand the agency’s authority to address cumulative impacts.

Cumulative Impacts Addendum provides a variety of examples on when and how EPA may consider cumulative impacts when carrying out different environmental statutes, including the Clean Water Act (“CWA”) and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).

According to Cumulative Impacts Addendum, the CWA provides EPA with multiple opportunities to address cumulative impacts. Some of those examples of those opportunities include the identification of impaired waters, development of Total Maximum Daily Loads (“TMDLs”), and the development of National Pollutant Discharge Elimination System (“NPDES”) permits for pesticide applications. The purpose of a TMDL is to describe the maximum amount of a particular pollutant that is allowed to enter a waterbody so that the waterbody will continue to meet water quality standards for that pollutant. TMDLs determine pollution reduction targets, and then allocate pollution reduction based on the source of the pollutant. In Cumulative Impacts Addendum, EPA finds that when developing TMDLs, regulators could account for cumulative impacts by requiring greater reductions from pollutant sources located within communities that are “experiencing greater cumulative impacts.” For example, under this approach, EPA could adopt a TMDL for nitrates on a certain waterbody that accounts for cumulative impacts by requiring greater load reductions in particular communities. Under such a TMDL, a concentrated animal feeding operation that is located in a community which EPA identifies as experiencing greater cumulative impacts could be required to limit nitrate emissions more than a similar facility that is subject to the same TMDL for the same waterbody, but is located in a different community.

EPA also found that opportunities for considering cumulative impacts were present in the development of Pesticide General Permits (“PGPs”) under the NPDES program. One of the functions of the CWA is to prohibit the introduction of pollutants from a discrete source into a protected waterbody without a NPDES permit. NPDES permits may either be issued individually or generally. An individual permit will cover a single facility or operation, while a general permit covers multiple facilities that have similar operations and discharges. A PGP is a general permit that covers multiple pesticide operators all engaged in similar pesticide application activities that result in the same type of pollutant discharges. According to EPA in Cumulative Impacts Addendum, when developing new PGPs, EPA could explore requiring pesticide operators to consider selecting pest management measures that would minimize pesticide discharges in communities with environmental justice concerns.

Cumulative Impacts Addendum also includes examples of how EPA could consider cumulative impacts when carrying out FIFRA actions. FIFRA regulates the use of pesticides in the United States. A pesticide may not be legally used until EPA registers it under FIFRA. To register a pesticide under FIFRA, EPA must conclude that the pesticide “will not generally cause unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5). FIFRA defines “unreasonable adverse effects,” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide. 7 U.S.C. § 136(bb). According to EPA, this statutory language could be interpreted to allow EPA to consider cumulative impacts when registering a pesticide. For example, if EPA is considering whether to register a new use for a particular pesticide, it could include cumulative impacts into its unreasonable adverse effects analysis by considering what impacts that new use could have to a community that EPA has identified as already being disproportionately impacted by pesticide exposure. If EPA concludes that the harm that new pesticide use would cause to that community would outweigh the benefits associated with the new pesticide use, EPA could deny registering the new use or could limit the areas where the new use could be implemented.

What Are the Practical Impacts Going Forward?

Importantly, Cumulative Impacts Addendum does not require EPA staff to take any specific actions. Instead, the document analyzes the legal authority that EPA has to take cumulative impacts into account when carrying out agency actions. Cumulative Impacts Addendum also provides a variety of examples demonstrating how considering cumulative impacts might look in certain situations. While these examples are not concrete requirements, the publication of Cumulative Impacts Addendum following EJ Legal Tools indicates that EPA will likely be incorporating environmental justice concerns into its decision-making going forward.


To read Cumulative Impacts Addendum, click here.

To read EJ Legal Tools, click here.

To read the text of the CWA, click here.

To read the text of FIFRA, click here.