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04.03.2023 Legal News

Biden and EPA Continue to Push Environmental Justice Using Cumulative Impacts

President Biden is pushing in 2023 to strengthen Environmental Justice (EJ) initiatives and policies from the top down. This includes ordering more action and results from relevant federal agencies and pushing for the use of “cumulative impacts” in permitting, rulemaking and enforcement decisions.

Another Executive Order

On February 16, 2023, President Biden issued his “Executive Order on Further Advancing Racial Equality and Support for Underserved Communities Through the Federal Government,” restating his original charge to federal governing agencies to advance equity for all and to address systemic racism, including the advancement of environmental justice to underserved communities. In this newest Executive Order, he expands the White House’s EJ efforts by:

  • requiring federal agencies like EPA to publish annual public Equity Action Plans to measure whether such agencies are doing their part;
  • ordering federal agencies to identify senior leaders accountable for advancing EJ initiatives and environmental equity along with existing agency EJ officers; and
  • putting Susan Rice, the President’s top domestic policy advisor, in charge of a new White House Steering Committee on Equity to coordinate equity initiatives among the many federal agencies ordered to take action.

These measures demonstrate that the President wants to hold agencies accountable and to create measuring sticks by which to rate their actions in advancing EJ in disadvantaged communities.

Cumulative Impacts

In addition to holding agencies more accountable, the President and EPA are taking big steps to understand and use “Cumulative Impacts” in their regulatory actions and decisions. Cumulative Impacts are defined by EPA 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.” To advance this initiative, on January 11, 2023, EPA issued “The EPA Cumulative Impacts Addendum to EPA Legal Tools to Advance Environmental Justice (EJ Legal Tools)” which sets forth existing legal authorities the agency and its state analogs can use to address cumulative impacts through permitting, regulations, grants and enforcement. Among the existing legislative authorities that EPA identifies as existing tools allowing the use of cumulative impacts to address EJ concerns:

1. Clean Air Act (CAA):

  • to establish New Source Performance Standards under section 111;
  • to analyze NAAQs Reviews under section 109(d) and state attainment date extensions (including extensions for attainment for Particulate Matter (PM) under section 188(e));
  • to establish Ambient Air Monitoring networks;
  • to regulate hazardous air pollutants (HAPs) and perform risk assessments under section 122, to determine whether to undertake residual risk assessments for area source categories subject to GACT standards;
  • to establish performance standards for new and existing solid waste incineration units under section 129, authority to revise regulations to incorporate a cumulative risk assessment in siting requirements;
  • to perform cumulative impacts analysis of PSD and non-PSD pollutants under the New Source Review (NSR) permitting program when determining BACT for permits to construct a stationary source using section 165(a);
  • to “help prioritize and decide which among the thousands of Title V operating permits the Agency will scrutinize to ensure that they are consistent with the requirements of the CAA”;
  • to prevent chemical and accidental releases under section 112(r);
  • to collect information under section 114 for impacts of any emission source(s) on communities in developing implementation plans and standards for solid waste combustion, determining violations of any standard or implementation plan, or carrying out any provision of the CAA (with certain exceptions); and
  • to address imminent and substantial endangerment to public health, welfare, or the environment of communities with EJ concerns under section 303, where there are cumulative impacts of air pollution from a source or multiple sources regardless of whether those sources are in compliance.

2. Clean Water Act (CWA) and Safe Drinking Water Act (SDWA):

  • to determine relative source contribution in developing human health water quality criteria, Maximum Contaminant Level Goals, and Health Advisories; under section 303(d) of CWA, impaired waters and Total Maximum Daily Loads (TMDLs) for impaired waters;
  • to issue dredge or fill permits by the U.S. Army Corps of Engineers including “impacts of human uses of resources;”
  • to issue underground injection control area permits under SDWA, EPA or a state should consider the cumulative effects of drilling and operation of additional injection wells;
  • to issue National Pollutant Discharge Elimination System (NPDES) permits related to small MS4s and Pesticide General Permit (PGP) and state equivalents, including specific requirements related to illicit discharge detection and elimination and post-construction stormwater conditions and selection of pest management measures; and
  • to exercise imminent and substantial endangerment authorities to address risks to public health from impacts to drinking water sources, including cumulative threats to drinking water from contaminants that are not regulated under the SDWA. EPA can further use section 504 of the CWA to address risks to public health and welfare from the cumulative impacts of water pollution from multiple sources, regardless of whether those sources comply with the requirements of the CWA.

3. Hazardous Waste: Resource Conservation and Recovery Act (RCRA):

  • under 40 C.F.R. Part 264, Subpart D, to require facilities to prepare and/or modify their contingency plans to reflect the needs of proximate communities, including cumulative impacts of multiple facilities on pre-existing community vulnerabilities, and hazards created or exacerbated by climate change such as flooding, heat island effect, and wildfires;
  • under RCRA section 3008(h), to take enforcement action to require corrective action at interim status hazardous waste treatment, storage, or disposal facilities, considering multiple contaminants in all media sources, sources other than the facility, and unique exposure pathways (e.g., subsistence fishers, farming communities), or sensitive populations (e.g., children, pregnant women, fetuses, the elderly);
  • using RCRA section 3013, where the presence or release of hazardous wastes at several facilities or sites may present a substantial hazard to a specific area, to issue section 3013 orders to each owner or operator of such facilities or sites in the area to assess the cumulative impact of those activities and follow up with site-specific actions. EPA can take into consideration citizen complaints, site-specific requests under CERCLA section 104, and information on “the potential for exposure to humans . . . and other related factors”;
  • under RCRA section 7003, to address risks to public health and the environment in communities with environmental justice concerns resulting from the cumulative impacts of pollution from solid and hazardous waste;
  • evaluating and giving priority to releases from USTs in communities with environmental justice concerns, taking into account unique exposure pathways and sensitive communities; and
  • under section 1008(a), where appropriate, direct states to include “demographic” factors in determining the location, design, and construction of solid waste management facilities. Factors include “population density, distribution, and projected growth” and the “political, economic, organizational, financial, and management [sic] affecting comprehensive solid waste management.”

4. Emergency Planning and Community Right-to-Know Act (EPCRA):

  • to establish threshold quantities for hazardous chemicals and to allow communities to petition EPA to add chemicals and threshold levels to the EPA list to promote environmental justice for chemicals that “may present particular threats to low-income communities and communities of color, due to cumulative exposures, sensitive populations, or consumption patterns.”

5. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA):

  • under section 105(a), to determine methods for investigating and evaluating sites and developing the Hazard Ranking System (HRS) evaluations for determining priorities among releases, taking into account, to the extent possible, the “population at risk” and several other considerations set out in the statute, as well as “other appropriate factors”;
  • section 104, to choose sites to conduct removals and remediation considering factors related to the area pollution and multiple unique exposure pathways to identify, assess, and evaluate alternatives to address risk from a release or threatened release in EPA decision-making and actions; and
  • for CERCLA actions that require risk-based decision-making, to perform ATSDR health assessments and site-specific baseline risk assessments and to select appropriate remedies under CERCLA section 121.

6. Civil Rights Act:

  • in enforcing Title VI of the Civil Rights Act of 1964 and other federal civil rights laws when evaluating whether there is an adverse impact from a federal funding recipient’s policy or practice. That is, EPA may consider any adverse impact caused by the policy or practice—and borne disproportionately by persons on the basis of race, color, or national origin (including LEP status)—in light of cumulative impacts from other stressors.


The White House is not satisfied that enough has been done to advance EJ initiatives. While there are billions of dollars in funding available to assist in these initiatives from the Federal Infrastructure Act, President Biden and EPA want to send the message now that EPA will be considering cumulative impacts in all regulatory programs where it has existing legal authority to do so. This means EPA will be considering EJ factors in enforcement and remediation decisions and will be watching agencies like SCDHEC, NCDEQ and VADEQ with delegated programs to make sure they are doing the same. Finally, expect nonprofits and local communities to be filing complaints and pushing EPA and the states to use EJ considerations in all environmental regulatory programs.

Executive Order on Further Advancing Racial Equality and Support for Underserved Communities Through the Federal Government (White House February 16, 2023)

EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum (U.S. EPA Jan. 11, 2023)