February 8, 2023

Volume XIII, Number 39

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Environmental Justice Update: New York Becomes Second State to Require EJ-Focused Cumulative Impact Analysis

On New Year’s Eve, New York Governor Kathy Hochul signed New York’s “Cumulative Impacts” bill into law, making New York the second state in the nation to require assessment of “cumulative impacts” affecting certain communities before an environmental permit is issued or renewed.

The Cumulative Impacts Bill originated in Senate Bill S8830 and Assembly Bill A2103D, and passed both houses of the legislature in April 2022. While New York regulators will weigh in on how the bill is implemented before it goes into effect later this year, we outline what environmental justice (EJ)-focused “cumulative impacts” are, what the bill does to address them, and how it factors into the larger EJ dialogue.

“Cumulative Impacts” and Environmental Justice 

Federal regulators define “environmental justice” as being “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.” This goal will be achieved when all people enjoy “the same degree of protection from environmental and health hazards” and “equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

Over the course of 2022, federal, state, and local regulators honed in on addressing environmental justice issues through spending, permitting, compliance, and enforcement activities. We spent much of 2022 cataloging these developments, most recently providing end-of-year lessons from the US Environmental Agency’s (EPA) 2022 efforts in the EJ space and on what regulated entities can do to manage risks in the permitting and compliance space.

EJ advocates correlate threats posed by environmental issues to race, poverty, and (predictably) health concerns at the community level. Various tools have been developed to evaluate whether a community is “environmentally overburdened.” (We discuss EPA’s EJSCREEN tool here; the US Centers for Disease Control and Prevention’s Environmental Justice Index (EJI) is a second example.) “Cumulative Impact” analysis builds on the concept that some communities are environmentally “overburdened;” a facility that represented no threat to non-overburdened communities might pose a greater threat to a community where industry was already concentrated.

How the Bill Changes Pre-Existing Law

New York’s Cumulative Impacts bill amends the New York State Environmental Quality Review Act (SEQRA) to require analysis of “cumulative impacts” on “disadvantaged communities” before a permit is approved or renewed. For the purposes of the bill, “disadvantaged communities” are generally “communities that bear burdens of negative public health effects, environmental pollution, impacts of climate change, and possess certain socioeconomic criteria, or comprise high-concentrations of low- and moderate- income households.”

With some exceptions for “minor” permits, facilities operating in these “disadvantaged communities” would be required to prepare “existing burden reports” containing information — including baseline environmental monitoring data collected within the past two years — identifying the following:

  • Each “existing pollution source or categories of sources affecting” the community and “the potential routes of human exposure to pollution from that source or categories of sources”

  • Ambient concentration of regulated air pollutants and regulated or unregulated toxic air pollutants

  • Traffic volume

  • Noise and odor levels

  • Exposure or potential exposure to lead paint

  • Exposure or potential exposure to contaminated drinking water supplies

  • Proximity to sources like solid or hazardous waste management facilities, wastewater treatment plants, hazardous waste sites, incinerators, recycling facilities, waste transfer facilities and petroleum or chemical manufacturing, storage, treatment or disposal facilities

  • The potential or documented cumulative human health effects of the foregoing pollution sources

  • The potential or projected contribution of the proposed action to existing pollution burdens in the community and potential health effects of such contribution, taking into account existing pollution burdens

This list intends to track activities which — taken individually — could cause impacts to human health or the environment. Proponents of the “community impact” concept argue that understanding the baseline for a community is a necessary factor to assess whether a permit should be issued as it could add further to this burden. Notably, “[n]o permit shall be approved or renewed by the department if it may cause or contribute to, either directly or indirectly, a disproportionate or inequitable or both disproportionate and inequitable pollution burden on a disadvantaged community.” New York state regulators would make this determination as part of a public participation process yet to be established.

How the Bill Relates to Similar Laws. 

New York’s Cumulative Impacts bill was passed approximately two years after New Jersey passed similar “cumulative impact” legislation. Whereas the New York law appears to have a blanket prohibition on issuance of permits to all facilities which might contribute to further impact on “disadvantaged communities,” New Jersey’s law contains a narrow exception for facilities that serve an essential environmental, health, or safety function in these communities. (See N.J. S.232, found here; and related proposed implementing regulations, found here.)

While no comprehensive federal definition of “cumulative impacts” has been established, in September 2022, EPA’s Office of Research and Development issued a report outlining open issues requiring further research in this space. The report 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.

“Cumulative impacts” are assessed through a “cumulative impact assessment,” which requires a systematic approach to characterize the combined effects from exposures to both chemical and non-chemical stressors over time across the affected population group or community. It evaluates how stressors from the built, natural, and social environments affect groups of people in both positive and negative ways. The posited elements of a cumulative impact assessment include community role throughout the assessment, such as identifying problems and potential intervention decision points to improve community health and well-being; combined impacts across multiple chemical and non-chemical stressors; multiple sources of stressors from the built, natural, and social environments; multiple exposure pathways across media; community vulnerability, sensitivity, adaptability, and resilience; exposures to stressors in the relevant past and future, especially during vulnerable life stages; distribution of environmental burdens and benefits; individual variability and behaviors; health and well-being benefits/mitigating factors; uncertainty and variability associated with the data and information; and approach for how to integrate data and information to assess cumulative impacts. 

In EPA’s view, “cumulative impact assessments” may use information supported by relationships among stressors, exposures, effects, and/or health, well-being, and quality of life outcomes for which cause-and-effect linkages may not be well understood. Whether EPA’s view will ultimately align with how individual states propose to evaluate so-called cumulative impacts remains, for the foreseeable future, uncertain. Cumulative impact assessments can factor “unknown effects of co-exposures to non-chemical stressors” as “risks . . . even if causal mechanisms are not fully understood.”

© 2023 ArentFox Schiff LLPNational Law Review, Volume XIII, Number 3
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About this Author

J. Michael Showalter, Litigator, Schiff Hardin LLP
Associate

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and...

312-258-5561
Bradley Rochlen, Partner, Schiff Hardin LLP
Partner

Bradley (Brad) S. Rochlen is a litigator who represents corporate, real estate and power generation companies, including public utilities, in complex environmental disputes. Mr. Rochlen assists clients in prosecuting and defending hazardous waste control (Superfund) cases, RCRA cases and private cost recovery cases at some of the largest contaminated sites in the country. He also has significant experience in Clean Water Act cases and toxic tort disputes.

Merging sound legal theories with an in-depth technical understanding, Mr. Rochlen designs creative approaches to case strategy...

312-258-5524
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