Five Things to Know About the New Federal Environmental Justice Index and Cumulative Impacts | Vinson & Elkins LLP

Background

The U.S. Environmental Protection Agency’s (“EPA”) Administrator Michael Regan has expressly identified cumulative impacts as a key part of the agency’s EJ agenda.1 A January 2022 draft paper from the EPA’s Office of Research and Development regarding cumulative impacts explains the agency’s focus on promoting cumulative impact assessments across its divisions, in line with recommendations from both the White House Justice Advisory Council and the National Environmental Justice Advisory Council.

However, here, rather than EPA, the EJI comes from the Centers for Disease Control and Prevention (“CDC”) and the Agency for Toxic Substances and Disease Registry (“ATSDR”), in partnership with the Department of Health and Human Services’ (“HHS”) Office of Environmental Justice. ATSDR posits that the EJI will help “public health officials prioritize action for those communities most at need,”2 in part, by identifying and mapping through a single score metric those areas that are most at risk from health impacts associated with environmental burden.

Below are five (5) important things to know about the EJI and its use, both now and in the future, and how it might fit into the picture of the cumulative impact.

  1. The EJI is the First National Tool to Assess Cumulative Impacts to EJ Communities, but It’s Not the First or Only EJ Tool

The EJI is the “first national, place-based tool designed to measure the cumulative impacts of environmental burden through the lens of human health and health equity.”3 ATSDR defines “cumulative impacts” as “the total harm to human health that occurs from the combination of environmental burden such as pollution and poor environmental conditions, pre-existing health conditions, and social factors such as access to quality healthcare.”4 However, although the EJI may be the first of its kind at a national level, it is not the first mapping tool intended to identify cumulative impacts. A few states have already implemented similar tools, such as:

  • California’s Office of Environmental Health Hazard Assessment maintains the CalEnviroScreen tool on behalf of the California Environmental Protection Agency. The tool applies a framework which assesses cumulative impacts and identifies impacted EJ communities and other sensitive populations. The Department of Toxic Substances in California (“DTSC”) uses CalEnviroscreen 2.0 “by overlaying data related to pollution burden and population characteristics with facilities permitted by the Department.” CalEnviroscreen helps identify communities in the state that are disproportionally burdened by a variety of sources of pollution, utilizing nineteen environmental, health, and socioeconomic indicators for such identification.
  • New Jersey has a beta version Environmental Justice Mapping, Assessment, and Projection (“EJMap”) tool. The EJMap Tool allows users to identify where overburdened communities are in accordance with the New Jersey Environmental Justice Law and the related EJ Rule proposed on June 6, 2022. The EJMap tool is not part of the formal EJ rule proposal, but will likely be used to identify overburdened communities subject to cumulative impacts (termed “adverse cumulative stressors”5).
  1. The EJI Appears Similar to State Tools Intended to Address Cumulative Impacts, Looking at Permitting, Enforcement, and Other Decisions Affecting EJ Communities

The EJI is not a tool released by EPA intended for use by the Agency like EJSCREEN, or like the White House Council on Environmental Quality’s Climate Economic Justice Tool (“CEJST”), which the White House has indicated will be used in connection with federal activities such as implementation of the Justice40 initiative.6 It is, for now, a public health-oriented mapping tool. However, the uses of the EJI are likely to evolve. Look no further than states using (or planning to use) mapping tools similar to the EJI in the context of environmental permitting, enforcement, and other decisions:

  • The New Jersey Environmental Justice Law, in part, requires the New Jersey Department of Environmental Protection to evaluate the environmental and public health impacts of certain facilities on overburdened communities during its permit application review. The proposed EJ Rule requires an assessment of whether a proposed facility will avoid disproportionate impacts to an EJ community by determining whether the facility would create “adverse cumulative stressors” (cumulative impacts) in an EJ community. The proposed EJ Rule contemplates that either the state or the applicant will identify cumulative impacts and disproportionate harm using the EJMap Tool.
  • The DTSC’s use of CalEnviroscreen allows it not only to improve its understanding of those communities in proximity to hazardous waste facilities but also to help in public outreach efforts by others, including the Office of Environmental Justice and Tribal Affairs and the Office of Public Participation.
  1. The EJI has Significant Data Limitations That May Limit Its Utility

The EJI utilizes census-tracts as its place-based unit of analysis. For each tract, the EJI calculates an overall EJI score. This is based on a ranked score for three different modules — the Environmental Burden Module, the Social Vulnerability Module, and the Health Vulnerability Module. The EJI uses thirty-six (36) environmental, social, and health factors to calculate this ranked score. The EJI score (indicating cumulative impacts) is the percentile-ranked sum of the specific burden indicators for each module. The final EJI ranking is produced using the EJI score — the higher the ranking, the more disproportionate the cumulative impacts on the community.

The ATSDR acknowledges EJI’s limitations, chief among them:

  • The EJI Lacks the Type of Local or State Level Data Needed to Capture all Social, Environmental, or Health Issues Faced by Communities

ATSDR acknowledges that certain issues, such as soil contamination, lack national data sets, while others, such as drinking water quality, lack the granularity necessary to shed light on local cumulative impacts. ATSDR even suggests using available state environmental and health mapping tools to supplement the EJI.

  • The EJI Does Not Estimate Risk Exposure; Instead, it Measures Proximity

On the basis of a “desire to facilitate interpretation of index measures and results by a general audience,”7 the EJI measures proximity to environmental hazards and amenities using a one-mile buffer. This approach, therefore, does not measure a community’s potential risk or exposure to such environmental hazards, including toxic zones and hazardous sites. Importantly, even the proximity data is limited in nature due to the lack of nationally representative polygon data, thus proximity is to a point within a site. Especially in combination, these two features – the treatment of “proximity” as meaningful without further attention to real exposure risk (which may be low even if close, or theoretically could be high, even if beyond a mile) as well as the generalized approach to a “sites” location present risks that potential impacts will be misunderstood, especially from larger sites.

  • The EJI Uses Historical Data and Estimates

Furthermore, the EJI relies on historical data generated across varying time scales by several different institutions. Although the ATSDR explains that most of the EJI indicators use data collected within the last five (5) years, this still precludes the production of real-time results; i.e., a score/rank that reflects current conditions. This limitation is compounded by the use of estimates for many of the indicators utilized in the EJI. Estimates inherently lead to some level of uncertainty and this lack of granularity leads to the possibility of larger margins of error. As such, ATSDR states that the EJI is not intended to be used to estimate individual or community-level risks or be used as a comprehensive estimate of risk or exposure (past, present, or future).

  1. The EJI is Not Intended to be a Definitive Tool to Identify EJ Communities or Estimate Cumulative Risk, but it Will Likely Shape Regulator’s Priorities

Per the Technical Documentation, ATSDR states that local, state, and federal public health officials, alongside individuals, community-based organizations, scientists, and researchers can use the EJI to “identify and respond to the varied environmental and social factors that affect a community’s health and well-being.” More specifically, the EJI can be used for the following purposes:

  • To identify and prioritize areas in need of extra help to improve health and health equity;
  • To both inform and educate the public about their community;
  • To inform policy and decision-making through the analysis of unique and local factors that drive cumulative impacts upon health; and
  • To establish goals and measure progress toward both health equity and environmental justice.

However, ATSDR cautioned that the EJI was not intended to be used as:

  • A definitive tool for labeling “EJ Communities” or characterizing all EJ issues;
  • A full representation of current or future social, environmental, or health characteristics; or
  • A representation of risk or exposure for a given community or area

That being said, the EPA has already indicated that it plans to make the most of the EJI, among other tools, to identify cumulative impacts and determine where the agency needs to focus its efforts.

  1. Cumulative Risk is Still on the Congressional Agenda (and Has Been Since 2021)

Environmental laws like the Clean Air Act and Clean Water Act were not drafted with the express purpose to address cumulative impacts. That could change with new legislation. Since 2021, there has been momentum on the Hill to adopt legislation requiring that agencies address cumulative impacts in decisions with the potential to affect EJ communities. In March 2021, the Environmental Justice for All Act was introduced in the Senate and referred to the Committee on Environment and Public Works. The House passed the Environmental Justice For All Act out of the House Natural Resources Committee on July 27, 2022.

The proposed legislation, among other things, requires “consideration of cumulative impacts and persistent violations in certain permitting decisions”, including permit programs under the Clean Air Act and the National Environment Policy Act. Under the latter, the legislation would require a federal agency to “consider all potential direct, indirect, and cumulative impacts caused by the action” alongside any alternatives or mitigation measures on EJ communities.

Conclusion

The EJI is a potentially important mapping tool in accelerating attempts at the federal level to assess and address cumulative environmental impacts on EJ communities, both those already being experienced or those that may result from new economic and industrial activity. A few suggestions and observations:

  1. The regulated community should familiarize itself with the use and limitations of EJI and other similar state tools in the areas where they operate. Likewise, companies should consider tracking new tools in development. If the developments in New Jersey are any indicator, tools like the EJI could play a part in future permitting and environmental assessments at the federal level.
  2. Companies performing internal assessments of environmental or health impacts on their stakeholders and communities may want to consider using EJI as a data point.
  3. Companies should consider how (or whether) this tool affects their internal assessment of environmental and health impacts in the context of investor reporting.
  4. Companies should consider how results from the EJI apply to their planned (or ongoing) project development. While the cumulative impacts assessed by EJI should not be confused with the “cumulative impacts” analysis completed under the National Environmental Policy Act (“NEPA”) — where federal agencies consider the incremental effect of proposed actions along with impacts from other past, present, and reasonably foreseeable actions — mapping tools like the EJI could increase scrutiny concerning estimated impacts to overburdened communities in NEPA analyses moving forward.

1 See, e.g., EPA. E.O. 13985 Equity Action Plan: U.S. Environmental Protection Agency (Apr. 2022), https://www.epa.gov/system/files/documents/2022-04/epa_equityactionplan_april2022_508.pdf (identifying as Priority Action #1 the “[d]evelop[ment of] a comprehensive framework for considering cumulative impacts in relevant EPA decisions and operationalize that framework in EPA’s programs and activities”).

2 EJI Fact Sheet, ATSDR (Aug. 10, 2022), https://www.atsdr.cdc.gov/placeandhealth/eji/fact_sheet.html.

3 Id.

Id.

5 The Proposed New Jersey EJ Rule defines “adverse cumulative stressors” as “the combined stressor total of an overburdened community is higher than or would be made higher than the overburdened community’s geographic point of comparison.” Environmental Justice Rules, 54 N.J. Reg. 971 (proposed June 6, 2022) (to be codified at N.J. Admin. Code § 7:1C), https://www.nj.gov/dep/rules/proposals/proposal-20220606a.pdf.

6 See EPA and CEQ’s New Environmental Justice Screening Tools: Five Things You Should Know, V&E (Mar. 9, 2022), https://vinsonelkins-preview.onenorth.com/insights/epa-and-ceqs-new-environmental-justice-screening-tools-five-things-you-should-know/.

7 Ctr. for Disease Control and Prevention, Technical Documentation for the Environmental Justice Index 2022 at 8 (2022), https://www.atsdr.cdc.gov/placeandhealth/eji/docs/EJI-2022-Documentation.pdf.

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