How can states design permitting programs that identify and address disproportionate environmental and public health harms in overburdened communities?
Advancing Cumulative Impacts Analysis in State Permitting: Legal Considerations for Program Design — by Sean Moriarty, Hannah Perls, and Sarah Hart-Curran, with support from the Salata Institute at Harvard University and the Environmental and Energy Law Program at Harvard Law School — is a guide that provides a legal overview of state programs that authorize or require permitting agencies to integrate cumulative impacts analyses (CIAs) into permitting decisions. It is designed to give community members, advocates, elected officials, regulators, and other stakeholders a shared language and framework for understanding CIA programs.
The guide is organized around key decision points that shape program design. Because there is no one-size-fits-all approach, it offers a menu of options for developing a practical, sustainable, and legally defensible program — one that reflects each state’s industry mix, community concerns, and legal landscape. (Learn more about the decision points.)
What the guide covers
The guide analyzes and compares approaches in five states that had enacted environmental justice legislation at the time of publication:
- Connecticut
- Massachusetts
- Minnesota
- New Jersey
- New York
Where possible, it highlights how states have combined different design choices to create cohesive and workable CIA programs. It gives particular attention to New Jersey and Massachusetts, which have promulgated regulations, to show how agencies have interpreted statutory requirements and translated them into regulatory standards.
For each decision point, the guide explores:
Who Decides: Statutory Specificity vs. Agency Discretion
Whether key program-design questions should be addressed in statute or left to agencies to resolve through regulation.
Implementation Notes
Practical lessons and considerations drawn from early implementation.
Legal Flags
Legal issues relevant to program design, including lessons from early litigation challenging state CIA programs.
A resource for informed decision-making
This guide does not identify a single “best” program or a universally correct set of policy choices. Communities should make those choices through accountable partnerships with members of impacted communities and their representative organizations.
It also does not address the selection, evaluation, or use of specific indicators or stressors for assessing cumulative impacts in a particular community. Those determinations must reflect community-specific concerns and be supported by scientific analysis beyond the scope of this publication. Similarly, the guide does not address the scientific, mathematical, and policy considerations involved in developing an environmental justice mapping tool.
Instead, this guide focuses on the legal and practical choices that states must consider when designing CIA programs and on the lessons that can be drawn from states’ early experience.