Thought Leadership

EPA Continues to Advance Cumulative Impact Consideration in Permitting, While an Important Tool is Missing

Client Updates

The U.S. Environmental Protection Agency (EPA) took another key step toward making the consideration of cumulative impacts in permitting standard practice when it released its January 11, 2023 guidance document, Cumulative Impacts Addendum to EPA Legal Tools to Advance Environmental Justice (“Addendum”). When reviewed in context with other recent actions, EPA is signaling to state and local permitting authorities, and to the regulated community, that future permitting actions should include a cumulative impacts analysis. However, it is important to recognize that how such an analysis should be conducted remains an unsettled science and policy issue. As EPA notes throughout the Addendum, “[w]hether and how EPA utilizes its legal authorities to address cumulative impacts will depend, among other things, on the specific statutory, regulatory, policy, scientific, and factual contexts at issue, as well as the resources available to the agency.”

EPA Has Been Setting the Groundwork for Cumulative Impacts Considerations

The Addendum is the latest in a series of EPA publications setting the groundwork for the Agency’s efforts to integrate environmental justice considerations into its decision-making. EPA is putting these many documents in place to facilitate what the Agency has planned to do for some time—address permitting under a multi-facetted approach, looking at facility siting and expansions not in isolation, but in context with and considering the impacts of other surrounding facilities and ambient environmental and social stressors.

The Addendum builds on a May 2022 document titled EPA Legal Tools to Advance Environmental Justice (“EJ Legal Tools Guidance”), which similarly identifies how the agency can address environmental justice through existing environmental and civil rights legal authorities. In August 2022, EPA released a 25-page document titled Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions (FAQs), which also summarized EPA’s authority to address environmental justice issues under existing laws and executive order. The FAQs focused on providing information to federal, state, and local environmental permitting programs to help integrate environmental justice and civil rights into the programs.

In October 2022 EPA’s Office of Research and Development’s published Cumulative Impacts Research: Recommendations for EPA’s Office of Research and Development, which quietly finalized definitions for “cumulative impacts” and “cumulative impact assessment.” The Addendum cites to these definitions and references the report as support.

In December 2022, EPA’s Office of Air and Radiation issued a guidance memorandum for regional and state air permitting officials titled Addressing Environmental Justice in Air Permitting, which set out eight principles for using existing permitting programs to promote environmental justice and equity. One of the principles instructs permit writers to “conduct a fit for purpose” analysis, assessing the specific circumstances of permit decisions which may include “an evaluation of the cumulative impact of the permitting action.”

Finally, in January 2023 EPA published its National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024-2027.  Environmental Justice is one of two overarching Strategic Plan goals that is a “core principle of all [] enforcement and compliance work.” Accordingly, EPA chose to incorporate environmental justice considerations into “every existing and proposed NECI” rather than create a specific isolated NECI for the issue.

An Emphasis on Air Issues and Permitting

An emphasis on air issues and air permits has emerged as a pattern throughout EPA’s environmental justice publications, and the Cumulative Impacts Guidance is a prime example. The Addendum provides specific examples of how to incorporate cumulative impacts considerations on a program-by-program basis including programs related to the federal air, water, waste, chemical, and civil rights laws. The Addendum chapter on the Clean Air Act involves more specific laws and permits, has the most subsections, and is the first and longest chapter. Further, as discussed above, the December 2022 Principles for Addressing EJ Concerns in Air Permitting, was the first program-specific guidance documents. For example, the EPA notes it retains discretion to deny attainment date extensions to taking into consideration the existing burdens of pollution in a nonattainment area.  In the permitting context, EPA states “[a] limited form of cumulative impacts analysis may be conducted under the New Source Review (NSR) permitting program[.]”  In the Title V Operating Permit context, EPA notes that under its CAA section 505(e) authority to reopen a permit for cause,  it “may consider cumulative impacts to help prioritize and decide which among thousands of Title V operating permits the agency will scrutinize to ensure they are consistent with the requirements of the CAA.”

This focus on air is also reflected in the allocation of nearly $40 billion for the benefit of environmental justice communicates following the passage of the Inflation Reduction Act (IRA). Since the IRA’s enactment in August 2022, the grants that have been distributed have been very air-centric. For example, in early November 2022, EPA announced recipients of $53.4M in funding to enhance air quality monitoring for 132 projects in 37 states.

A Missing Critical Piece

EPA has now published documents defining cumulative impacts and cumulative impacts assessments, outlining the legal authority to require such assessments, and urging stakeholders to conduct cumulative impacts assessments. However, despite this foundation, a critical element of the blueprint is missing—EPA has not provided any guidance on how to conduct a cumulative impacts assessment. Without knowing the process, elements, best practices, or how to interpret the results of a cumulative impacts assessment, stakeholders cannot make use of this process. EPA specifically acknowledges that “[t]his addendum is not intended to prescribe when and how the agency should undertake specific actions, nor does it provide methodologies for how to conduct a cumulative impacts assessment.”

The only document that serves as any guideline to conducting a cumulative impacts assessment in 2023 is a document EPA published in 2003, titled Framework for Cumulative Risk Assessment. However, as discussed in previous Baker Botts thought leadership, cumulative impact assessment and cumulative risk assessment are different arenas and the landscape has changed significantly in the 20 years since this framework was published. Accordingly, there has never been guidance on how to conduct a cumulative impact assessment.

EPA is committed to releasing an update to its 2003 cumulative risk assessment document this year. Until that and other supporting tools are available, and until there is scientific and public policy consensus on how to undertake these assessments, there will remain significant uncertainty about what is expected by regulators and the regulated in the cumulative impacts space.

Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

Related Professionals