On Thursday, Nov. 21, 2024, the United States Environmental Protection Agency (EPA) released its draft Interim Framework for Advancing Consideration of Cumulative Impacts. 89 Fed. Reg. 92125 (Nov. 21, 2024). The Framework is meant to provide EPA employees and decisions makers with guidance on how to analyze and consider cumulative impacts in their work. While the Framework does not itself create any new rights, obligations or benefits, it does signal EPA’s ongoing commitment to achieving its environmental justice mission as set out in the agency’s 2022-2026 Strategic Plan and Executive Order 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for All.”
Cumulative impacts are defined as the “totality of exposures to combinations of chemical and nonchemical stressors and their effects on the environment, health, well-being, and quality of life outcomes.” EPA’s cumulative impacts analysis considers exposures to environmental stressors “at each stage of a person’s life,” including “both contemporary exposures to multiple stressors and exposures throughout a person’s lifetime.” EPA also advises that cumulative impacts “can be considered in the context of individuals, geographically defined communities, or definable population groups or life stages, for which increased vulnerability or susceptibility may be attributable to differences in intrinsic factors (e.g., age, genetic conditions) or extrinsic factors over a person’s lifetime (e.g., socioeconomic status, stress, nutrition, lifestyle, workplace, geography, other social determinants of health, previous or ongoing exposure to multiple chemicals).” Note that this is distinct from how the term “cumulative impacts” is used in other regulatory contexts. For example, the National Environmental Policy Act’s implementing regulations use the term cumulative impacts to refer to “the impact on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.” 32 C.F.R. § 651.16(a).
The actual effect of EPA’s Framework remains to be seen. Cumulative impacts analysis has the potential to inform a range of federal activities at both the local and national level, including standard setting, permitting, rulemaking, cleanup, emergency response, funding, planning, and state, territorial and Tribal program oversight. EPA encourages a flexible approach to incorporating cumulative impacts into the decision-making process, noting that the analysis “may inform EPA decisions in whole or in part” and will vary based on the decision-making context. For example, EPA’s cumulative impacts analysis informed the agency’s decision to deny an aquifer exemption request for the disposal of wastewater from oil and gas operations based, at least in part, on “historic inequities, past and existing health and environmental burdens in surrounding communities, multimedia and cumulative impacts from the related large oil and gas development project; and the potential exacerbation of environmental, health, and climate change impacts in overburdened communities and with respect to Indigenous Peoples.”
The fate of EPA’s cumulative impacts analysis is dubious in the light of the incoming Trump administration, which has historically been critical of environmental justice efforts. EPA’s incorporation of cumulative impacts analysis into the decision-making process would also likely be subject to judicial challenges. In August 2024, the United States District Court for the Western District of Louisiana imposed a state-wide injunction barring EPA from enforcing any Title VI disparate impact or cumulative impact analysis requirements after finding that such requirements went beyond Title VI’s mandate and violated the Louisiana Constitution’s ban on discrimination by requiring the decisionmaker to consider race. State of LA v. EPA, No. 2:23-cv-00692 (W.D. La. Jan. 23, 2024). In that case, EPA objected to Louisiana DEQ’s (LDEQ) issuance of a permit under the Clean Air Act on Title VI disparate-impact grounds. The EPA demanded that LDEQ undertake analysis under “civil rights regulations” to avoid “unjustified discriminatory effect,” and that the State consider “whether the community is already disproportionately impacted either by public health or environmental burdens.” This decision draws into question the EPA’s authority to require a cumulative impacts analysis for projects with federal involvement, such as projects subject to federal permitting authority that has been delegated to the state. EPA’s cumulative impacts analysis may also open the door to challenges under the APA’s arbitrary and capricious standard. The draft Framework remains open to public comment until Feb. 19, 2025.
