CleanLaw — Cumulative Impacts and the ‘Holy Grail’ of EJ Policy

Hannah Perls:

Welcome to CleanLaw from the Environmental and Energy Law Program at Harvard Law School. I’m Hannah Perls, and in this episode I speak with environmental justice pioneer Charles Lee, former director of EPA’s Environmental Justice Office and principal author of the landmark 1987 report, Toxic Wastes and Race in the United States, and now a visiting scholar at Howard University School of Law. We’re also joined by Sean Moriarty, former deputy commissioner with the New Jersey Department of Environmental Protection.

We discuss the growing field of cumulative impacts analysis and how states are increasingly using this tool in permitting and other programs to advance meaningful protections for overburdened communities across the country. And we should note both Sean and Charles are speaking in their personal capacity and their opinions and views in no way represent the views of their respective institutions. Well, Charles, Sean, thank you both so much for being on CleanLaw.

So a lot of our recent episodes have focused on these big changes to federal environmental law and policy, but today we’re going to shift gears and talk about what I think are some really exciting developments happening at the state level to protect public health and the environment by incorporating cumulative impacts’ analysis into government decision-making and in particular permitting. Now, before we dive in just two to three sentences, what is cumulative impacts analysis and why does it matter? Maybe Charles, we can start with you.

Charles Lee:

First of all, thank you for having me on the podcast. Cumulative impacts speak to the interaction between multiple environmental health and social stressors and their effects on human health, welfare, and quality of life. Cumulative impacts is really about the concentration of environmental and social burdens in certain areas. So places like the Ironbound community in Newark, New Jersey or the South Side of Chicago or Cancer Alley in Louisiana. And it is something that while many communities that are overburdened aren’t familiar with the term, they really know all the issues involved because this really reflects their lived reality.

Hannah Perls:

Sean, is there anything you would add?

Sean Moriarty:

Sure, I would love to add to that, just love adding anything to what Charles says. It’s an extreme pleasure in my life to work with this man. I think the only thing I would add, is that when you’re looking at cumulative impacts from the regulatory perspective, and certainly the way that I come to this, having spent time at New Jersey Department of Environmental Protection. I think what cumulative impacts attempts to do is really to account for impacts that are missed when you look at things through traditional media-based permitting approaches. So those media-based approaches, which is, for example, air or water, they’re more narrowly crafted and they look at specific impacts that any given facility has, but they don’t really consider the context in which those facilities exist.

So when Charles mentions the Ironbound community in Newark or the South Side of Chicago or these places, our traditional approach to permitting doesn’t consider the proximity of these facilities necessarily to vulnerable populations and particularly kind of their abundance or concentration in certain areas during permitting. And what cumulative impacts attempts to do is to take a broader view of these things and I think a more complete view of the impacts that facilities have and try to, through some of the various statutory and regulatory approaches that we’re seeing across the country, to try to remedy or remediate some of those disproportionate impacts.

Charles Lee:

So there’s a term that’s always used when people talk about cumulative impacts, which is talking about total burden. And so I think this is what Sean is speaking to. The idea here is to the extent that we can, we want to take into account all those burdens, particularly those that we normally don’t capture, either because of the regulations or because of the way that we currently do the analysis.

Hannah Perls:

I really appreciate that, and I think for a lot of our listeners, they’ll be familiar with the federal frameworks, which often think about pollutants either on a source by source basis or even a pollutant by pollutant basis. And what I hear you both talking about, and I think the way that we all experience pollution in our daily lives where this is sort of intuitive and common sense. We don’t experience just particulate matter and just lead in the water or in lead paint. We experience all of those things collectively. And then the impact will depend on who we are. It might depend on how much money we have. It might depend on our pre-existing vulnerabilities. So this is about taking that holistic view that better represents people’s reality.

And I wanted to pull out something you both said, which is you have the analysis itself that gives you that sense of what people are living in, in terms of the pollution or the background stressors, which we will get into. But then there’s also how you operationalize it. And I think, Charles, this is something that you’ve said that this research must go beyond merely proving existence of disproportionality. So I think a real focus of this conversation is once you have that assessment, how do you operationalize it? And in particular, how do you do that through legal frameworks? And in particular, permitting, which is the real example we have out of New Jersey.

And I do want to just tell our listeners a bit more about who you both are because I am extremely excited to have you both on the podcast given your expertise and experience. Charles, I want to start with you. So you of course are recognized as one of the foremost national experts on this cumulative impacts issue and a longtime participant and leader in the environmental justice movement in the United States. And just for listeners who might not be familiar with your work, you left EPA this year after 26 years with the agency to join the Environmental and Climate Justice Center at Howard University School of Law as a visiting scholar.

And of course, before joining EPA, you worked as an advocate and a researcher, notably as the principal author of Toxic Wastes and Race in the United States, this landmark 1987 report. And you helped organize the First National People of Color Environmental Leadership Summit in 1991. And this is an abbreviated biography. Charles, I’m just very, very grateful to you for being on this podcast and sharing your expertise with us. I wanted to ask you, as your decades of work show, this is not a new idea. The concept and assessment of cumulative impacts is ingrained in many of our federal environmental statutes. But I want to know how you started working on this issue and then if there’s anything that you’re seeing now in this moment that feels new.

Charles Lee:

Thanks for the question. I think this issue of cumulative impacts has always been part of the environmental justice conversation. It’s very natural because when we talk about environmental justice, we’re really talking about the lived reality or the lived experience of communities. And so as we said before, we don’t experience pollution one at a time. We experience it holistically. We live with all these pollution and other factors all at the same time. So this is really part of that conversation. So I think at the very beginning of when environmental justice emerged as an issue of national concern, this issue of cumulative impacts just kind of naturally grew up along with it.

For example, the National Environmental Justice Advisory Council, which is EPA’s formal advisory council on environmental justice, had its very first meeting in 1993, the issue got raised. And now virtually in every meeting since then, the issue gets raised over and over again. And just the way that people understand this issue and the ways to deal with the issue has evolved over the several decades that environmental justice has been on the national stage. It is not true that cumulative impacts that we’re just beginning to address this in government decision making. It’s been part of the conversation on that level for many years.

And in fact, going back to around 2010, 2012, California developed a cumulative impact mapping tool that now is used for allocating resources to the areas which are most overburdened. And that’s something that has been done in other states like New York and Illinois and during the Biden administration, that is what the Justice40 Initiative is all about, which calls for 40% of the benefits of a class of environmental and health programs that must go to benefit overburdened communities.

Hannah Perls:

Charles, one thing that you mentioned, I just want to pull out a little bit, is you talked about a lot of different ways that cumulative impacts analysis has been operationalized in state and federal programs. And I think there’s a helpful three-part framework that the Tishman Center at the New School offers, which is they group them into sort of three buckets and you touched on all three buckets, but just to sort of make that clear for listeners. One is this analytical function, just understanding how these disproportionate burdens map out. And so that is sort of what you were talking about with CalEnviroScreen, that mapping tool. Another is this redistributive mechanism, right?

We’re going to use this information to better understand how we can equitably allocate public resources to make sure people who are most impacted get the resources and investments they need. And that would be Justice40. And then I think, Sean, this is a great segue to your expertise. That third bucket is this regulatory operationalizing function where you actually integrate this analysis into how agencies make decisions. And of course, Sean, this is your expertise with the New Jersey Department of Environmental Protection. So I’m going to provide you a brief introduction so our listeners have a sense of who you are and the expertise that you bring.

You, of course, come to this as a former state regulatory lawyer, which is a very specific type of lawyering.

Sean Moriarty:

Yes, it is.

Hannah Perls:

And I think our listeners would also love to hear a bit more about what does that mean to be a regulatory lawyer? But in particular, I think what’s really exciting about your expertise is you were one of the lead attorneys at the New Jersey Department of Environmental Protection when the agency was tasked with implementing New Jersey’s landmark 2020 environmental justice law, which included a very explicit and complex cumulative impacts mandate that needed to be integrated into the state’s permitting program. So can you share just a little bit as we flagged, what does it mean to be a regulatory lawyer and then a little bit about that work in particular implementing the EJ law?

Sean Moriarty:

Sure. So first of all, putting my bio up next to Charles’ is kind of insane, right? Charles is going to do a whole book talking about where he comes from, and I can do my entire origin story in about two minutes. So I’m going to do that. So I worked for the state and I would say truly the best thing that ever happened to me in terms of changing kind of a professional trajectory to something that I think is really much more meaningful than what I might’ve otherwise been able to do. So I’d worked for the state for a good decade or so, and I was very fortunate to work my way up through the DEP to become the deputy commissioner and general counsel. And that’s like dream job scenario for me for any kind of regulatory lawyer.

You think that that’s unattainable in your little space and then you get a couple of lucky breaks and you find yourself in a position of great privilege honestly. So early in my tenure in that job as deputy commissioner, I was asked to take part in this meeting with community members from the Ironbound Community Corp on an issue. It was related to environmental compliance reviews for facilities eligible for renewable energy credits. At the time, did not think it was that big of a deal, to be honest with you. So met with staff, we prepared our fairly standard response, which if you’ve ever dealt with government, it’s probably not going to be all that fulfilling when you hear it.

And went to the meeting thinking that this would be kind of my typical interaction with advocates who’ve dealt with people repeatedly over the years and felt like I had a sense of what to expect. Very quickly realized that was not the case. So after giving kind of the department’s response, one of the community members, I’m not going to name her, but she’s very well known and a very powerful voice in this space, immediately and forcefully told me that I should be fired. And if you’ve never thought you were doing your job and thought you were doing it well, and then were told very directly that you did not deserve to sit in that position, I would recommend it because it really pushes you back and it makes you have to reconsider why you’re there.

So while that wasn’t the first time, and definitely not the last time I’d been yelled at as a state worker, this was different, right? There was an urgency and kind of, I don’t even know what the right word is, a power behind those words.

Hannah Perls:

That sort of moral imperative.

Sean Moriarty:

I wasn’t prepared for that, and I hadn’t felt that in these meetings before. So perhaps initially just out of self-preservation, we regrouped, we changed our tune, and went back to the drawing board on this. And over the next several months we worked to find what I felt was a better solution. But ultimately we were much more transparent, much more open about what our constraints were, what we could do, what we couldn’t do. And I think we found better common ground on the issue. And luckily for me, I kept my job. So what I took from that were really two lessons. First, that the department can and should do better in these spaces.

And secondly, that in my position, instead of just getting the information and delivering it, I had the ability to influence better outcomes. So while I’ve never confirmed that this is the case, I’m pretty certain that my handling of that issue was at least part of why our then commissioner, Catherine McCabe, came to me and said, “I think you need to be the person to handle this rule making process.” When the state environmental justice law was passed. So with those lessons, we began this process of engagement, and a big part of that process was a continuous and direct conversation with the community members and advocates who had championed the bill. This was their law.

They had worked they decades to get it passed. And I think that’s part of thinking about how we can do things better and how we can do things differently, was to talk to them directly every two weeks for the entirety of our rulemaking process. And in our first meeting, which was fun times during the height of COVID, so all this is happening on the computer. I just went in and just openly admitted that I am probably somebody who looks a lot like the people you interacted before that you felt let you down. And what I would never do in that situation is I would never ask them to trust me because that would not work. So what we committed to, I specifically and the rest of our team, is that we would work to earn their trust through this process.

And to make this slightly long story, slightly shorter, we got the rules done and the person who wanted me fired some five years later, we now count each other as friends, and we’re still trying to find ways to collaborate together. And to me, if you’re a regulatory lawyer in this space or any other space, I think the lessons there are at least pretty clear to me that you’re going to get a lot farther by being transparent, by being genuine, by being real with folks, letting them know what you can and can’t do, and ultimately working to earn that trust as opposed to just sitting there and being a bureaucrat. And I think that type of approach that we adopted as a department is really what helped us to be able to be successful in putting this rule together, in getting it adopted, and ultimately working on the implementation.

And I think that was a big deal for me. It really kind of changed the way that I approached all of this, and then I quit DEP and then Charles came calling and said, “Hey, let’s do some more of this work together.” And I said, “Yeah.” And I made a bunch of changes and now we’re here doing this podcast. So it’s all pretty cool.

Hannah Perls:

I think that’s another good universal rule. If Charles Lee asks you to do something, you do it.

Sean Moriarty:

Yes. The answer is always yes.

Hannah Perls:

The answer is always yes.

Charles Lee:

Can I add something to that?

Hannah Perls:

Absolutely.

Charles Lee:

So as part of the process that Sean led was a stakeholder engagement process that was, I think, in my mind, not just excellent, but really educational. And so they did a number of stakeholder meetings, which are recorded, and on the New Jersey DEP website, there’s a whole encyclopedia of all the recordings and you hear the advocates. And these were not just advocates, but the communities and other stakeholders all engaging with Sean and other members of New Jersey DEP over really substantive issues. And what you listen to if you listen carefully, is how these issues are worked through, not just in terms of what’s important to the communities involved, but what is practicable under the kind of laws and regulations that DEP has to work with.

So it is really an educational thing. And what I think I would draw from that is this has been this conversation in the environmental justice space about how environmental justice is not just a procedural matter, it has been to a large extent, still happening in many cases, is that government agencies would just hold a meeting and then they would check the box. There’s this is Fourth Circuit opinion about the Atlantic Coast Pipeline, where it basically says environmental justice is not a check-the-box exercise. And so moving beyond that to addressing these issues substantively is I think the heart of what the New Jersey DEP process is all about.

And I think that stands as a real hallmark as far as something that’s truly valuable that this whole process brings to good governance and to transparency and meaningful involvement.

Sean Moriarty:

Thank you for highlighting that, Charles. So I would always tell people, if you’re a glutton for punishment, you can watch all those videos because it’s a full day’s worth. I’m not joking, 24 hours of just my bald floating head talking about environmental justice stuff. But in all seriousness, I think that comes back to this idea that in doing this work, it’s okay to approach things differently, that it deserves a better approach. It deserves more because we’re trying to correct longstanding historical inequities. And that you can’t do that by just using the same approach and the same modus operandi that you always use. It has to be different. It has to be focused. If we’re going to talk that talk, we had to walk the walk.

So we did eight months of stakeholdering with everybody. We broke it down piece by piece, every single decision that we made there. And it didn’t mean that we were going to just do what everybody told us to do, but what we were going to do is sit there and take the time to explain exactly why we felt we wanted to move in a different direction, get feedback on that, present proposals. So before the rule was ever proposed, before things were finalized, everyone involved in that process had a really, really clear and strong understanding of what the rule was going to say. There were no surprises when the thing came out.

Charles Lee:

One thing maybe to add to that is that what I found really helpful for me was the idea that those conversations were really problem-solving conversations. That the whole way that the development of those regulations was approached was that it was a trying to solve problems and not just solve problems alone, but collectively.

Hannah Perls:

We’ve just been saying and using the words disproportionality, burden, stressors. And one thing this law is really trying to get at is the historical legacy of often governmental choices that decided where polluting facilities would be sited or decided where we would invest public dollars to build out sewer or wastewater infrastructure. And each state has its unique context, not just in terms of its current industrial mix, but also the particular communities that were excluded from democratic processes or excluded from the benefits of environmental decision making.

And so Charles, obviously, as one of the people who first documented this in that 1987 report, I was wondering if you could just talk a bit about how you understand disproportionality and why it’s so important that we not just understand it, but operationalize it in the way we make decisions now.

Charles Lee:

Thanks for that. I mean, I think one of the things that 1987 Toxic Wastes and Race report did was to really bring evidence to bear about this idea that environmental burdens and benefits, that there’s a distributional aspect to that. And this has been built upon in the 40, 50 years since then with a whole explosion of research. I mean, there’s probably thousands of peer reviewed journal articles in all aspects related to environment, health, sustainability, climate and transportation, healthcare, green space. And as you pointed out, it also offers us a way to understand not just what is, but how it got there.

So a great example of this would be the issue of redlining in the 1930s and all the research that’s being done ever since the University of Richmond digitized the redlining maps in the 1930s and the research that began to correlate our current environmental and health conditions with what grade you were in terms of the 1930s HOLC Maps, H-O-L-C, redlining maps.

Hannah Perls:

That was the Home Owners Loan Corporation, H-O-L-C?

Charles Lee:

That’s right. Home Owners Loan Corporation. And so it’s really remarkable to see that areas which were deemed the worst or the least desirable areas that ended up being areas where we disinvested in are the places that have the highest asthma rates or the greatest temperature rise. There’s heat islands and lack of tree cover, and these relationships really help to explain why current environmental conditions are the way they are today. And I think that the larger question behind all this is that in our environmental analysis and decision making process, we really need to think more about the distribution of environmental benefits and burdens.

Hannah Perls:

So I want to get to what that final product is because now we sort of built up and built up and built up all the anticipation.

Sean Moriarty:

Excitement is off the charts.

Hannah Perls:

This is a very extended movie trailer for the New Jersey DEP rules. And I want to start to dig into the complexity of the really concrete decision points that the regulators made as part of this engagement process. And I should say that, Sean, you and I and another one of our colleagues, Sarah Hart-Curren, we are working on a forthcoming legal guide that will just lay out the legal considerations for integrating cumulative impacts analysis into state permitting. So we’re not going to get into sort of the science and methodology of cumulative impacts analysis. There are a ton of really amazing resources. A lot of this is Charles’s work and his colleagues like Paul Mohai and others.

I want to talk about the legal framework. So if you’re a regulator and you’re starting from the authorizing statutory language, right? The New Jersey legislature says to New Jersey DEP, “Do this thing.” Sean, can you talk a little bit about what you saw as sort of the crucial decision points in designing this program and how you as a regulator look at statutory language and come out with a rulemaking process that as you said isn’t just process for process’s sake? It’s going to deliver concrete protections consistent with what the legislature demanded.

Sean Moriarty:

Sure. That sounds great. What the law kind of requires is it requires the department to consider how certain specific facilities operating in what we call overburdened communities, and those are set by specific demographic criteria, are going to contribute to environmental public health stressors in a way that is, as we term it, disproportionate when compared to what I would say is its neighbors, right? So what you’re doing is you’re looking at environmental conditions in specifically identified communities and trying to figure out if they are worse essentially than other communities. And what it allows you to do is consider those impacts on a facility-wide basis as opposed to the kind of more narrow way you would look at it.

If you’re looking at it from an air pollution perspective, you’re looking at stack emissions, or if you’re looking at it from water pollution perspective, you’re looking at a point source emission. This allows the department to consider things much more broadly on a facility-wide basis. And that lets you get at things that you can’t otherwise get at through traditional environmental permitting structures, particularly trying to address mobile sources and their impacts on PM2.5, diesel particulate matter. Some of these things that really affect quality of life in overburdened communities that we didn’t have the tools to really address previously. So when you ask what the big decision points are, the statute gives us some guidance.

It tells us what facilities to look at, largely solid waste facilities, major air sources. It tells us what communities to consider. We need to figure out, “Well, first and foremost, how do you do that in comparison?” And we do so by defining specific environmental and public health stressors. So we had a list from the statute that includes concentrated areas of pollution, mobile sources, sites, and then other things that may cause, being a critical term “may cause,” public health impacts, including asthma, cancer, elevated above levels, a bunch of things, right? We needed to be able to plot those out with data for the entirety of the state. So we had to look at a bunch of different data sources.

We started with 60, we ended with about 26. 26 pieces of data that would inform those statutory categories, those statutory stressor categories. Our goal in doing so was to use as much publicly available and kind of reliable data as possible, feeling that that would give us a more objective baseline upon which to begin to evaluate facility contributions. And setting that baseline is really, really important to ultimately determining whether just proportionality exists. So we created through that process the Environmental Justice, Mapping, Assessment, and Protection Tool or EJMAP.

And what that does is ultimately plots out the relative stressor levels for all of the communities in the state of New Jersey, the overburdened communities and non-overburdened communities, and then allows us to do a comparative analysis of those stressors between communities. And then for any of those individual stressors where the presence in an overburdened community is higher than it would otherwise be in a non-overburdened community, those are considered “adverse.” We’re able to sum those up through what we call the matrix method. So you could take each of the individual stressors, you can make a determination about whether they are higher than what you would see in non-overburdened communities.

And then you add those up and that gives us kind of an overall assessment of disproportionality across all of those communities. That’s the biggest and most crucial decision point. From there, what we really ask of facilities is to simply address their contributions to those stressors, particularly where they’re disproportionate. So through that process, you have a baseline assessment, you have an assessment of disproportionality, the department does all that work, makes that available, and then a facility comes in, and they have to make decisions about what they are or not going to be able to do to address their contributions.

In that way, I think it takes a fairly complex concept and makes it pretty simple and something that based on a chart that you can pull down from EJMAP, you can really understand exactly what the environmental conditions are in a particular community. And as a facility or as a community member, then you can start to make decisions on how you can work to lessen those areas of disproportionality or adversity. I think it’s a really, really powerful way to look at it and data being really the backbone and the critical component to that. That really unlocks a lot of the other aspects of the law that ultimately can work to lessen those impacts.

Hannah Perls:

Sean, I just want to emphasize one more part of the New Jersey program, there’s really crucial clear statutory language in the New Jersey law that requires New Jersey DEP to deny a permit if certain thresholds are met. So if you could imagine a community where you have an elementary school and there’s a facility that’s already there and it wants to expand and expanding that facility would mean that that community bears a much higher disproportionate pollution load cumulatively. New Jersey under the law, the DEP now has very concrete mandates about what to do in that situation. So I was wondering if you could briefly explain how that works.

And then Charles, I’m going to ask you why we don’t just copy and paste the New Jersey law for all the other 49 states.

Sean Moriarty:

So I think one of the aspects of the law that is important to understand is the difference in authorities with regard to denials. So the original version of the bill, and this is probably one of the reasons why you don’t just cut and paste it because you maybe could do a little bit better. But the original version of the bill would’ve had mandatory denials when you are causing a disproportionate impact. So impacting a community in a way that is going to make it have disproportionate burdens or is going to further exacerbate existing and disproportionate burdens. That was changed.

And the way that the law works now is that the department only has the authority and in fact has the mandate to deny permits for new facilities that are going to cause disproportionate impact unless they will meet the compelling public interest standard. So for those facilities, if you are seeking to site a new facility in the community you described, that’s already subject to significant adverse burdens, unless the facility can completely avoid contributions to those adverse burdens, it is denied unless it meets compelling public interest standard and that’s drawn narrowly. It focuses on really kind of critical public health or environmental needs of the community.

And I think when you’re thinking about critical statutory terminology when, in the definition of compelling public interest, it specifically uses the words “in the overburdened community.” I think that we highlighted that, we underlined it, we put it in different color every time we did a presentation because when you’re scoping out what that looks like, centering the needs of the community is absolutely critical to avoid continued kind of exacerbation of historic inequities.

Hannah Perls:

I think we’ve been using a lot of big terms, but I think this is fundamentally a public health bill. And when we talk about denying new facilities, it is a recognition that that contribution would dramatically impede people’s public health. Is that accurate?

Sean Moriarty:

Without question. We talk about reality, we talk about lived experience, all that stuff. It’s like what is it like to go outside your house? If you live in some of these communities that are considered overburdened that we’ve kind of mapped out and have not only meet specific demographic criteria but also have increased environmental and public health burdens. You might be walking outside of your house and you might see diesel trucks going to the nearby solid waste facility the entire day and how that impacts your quality of life.

They might technically raise particular levels of a particular pollutant, but at the end of the day, it’s like what does that feel like to live there and can we do better to make it so when people walk outside the air that they breathe is cleaner and that the water that they find around the corner in the stream is not incredibly dirty and all of the things that some of us are fortunate enough to take it for advantage. So you deny those facilities when it’s going to further impact the quality of life. For existing facilities, and one of the changes to the bill is that the department can only condition those permits.

So if an existing facility or that facility that is next to the elementary school that’s expanding, they effectively under the law have a right to expand. The department in turn has a right to impose additional conditions on that expansion that are intended to, and we set this out in the regulations. We set a hierarchy of avoidance, minimization, and in certain situations, net environmental benefit that requires a facility to go through and assess its impacts to those stressors and look at all feasible ways that they can avoid those impacts. And if they can’t avoid them, then they need to minimize them.

And if you’re expanding, then you need to do something else for the community to try to address the fact that an expansion that increases contributions to public health stressors, we are accepting that that is going to increase a level of disproportionality. So in that situation, what the rules ask is that if we’re going to accept that and we are going to agree that you can do that, then we’re going to ask you to do something else to try to reduce elsewhere because we can’t get around the fact that you’re adding. And to us, and to me, that was critical because you got to think about what the goals of the law ultimately are.

Preventing new facilities is a good and laudable goal, but how you deal with those existing facilities to me is just as critical because if you’re going to improve conditions over the long term, you’re ultimately going to need to reduce the contributions from those facilities. And that’s what we really sought to do through the regulatory process, is to drive those down at each renewal iteration or each expansion to try to minimize as best we could what those impacts would be. And hopefully over the long term see significant lessening of that documented disproportionality.

Hannah Perls:

I should say, it’s not prevent all new facilities, it’s preventing facilities that have negative public health consequences in areas that already are experiencing significant public health burdens and making sure that we don’t make it even worse, if that is fair.

Sean Moriarty:

That is very fair.

Charles Lee:

When I was at EPA and we would bring Sean over to present under New Jersey DEP’s regulations and methodology, and all the attorneys at EPA would say, one thing about this that really stands out in my mind. They called it, it was an approach that was elegantly simple, that it was really easy to see and to implement. To me one of the things that… It doesn’t have to be that complex. That you could do it in a way that’s legally and scientifically defensible and be very straightforward. So I think that’s one thing that we take away, lessons from what happened in New Jersey, that would be one of them in terms of what kind of tool or what kind of analysis method that we’re striving for that it’d be elegantly simple.

Sean Moriarty:

And I think on that point, so this is a cumulative impacts titled podcast. When Charles describes what that means, he talks about interactions of chemicals and how that affects inherent or population-based vulnerabilities. I think it’s important to distinguish what we did in New Jersey in our now called matrix approach from a true cumulative impacts analysis. It is not that. It does not attempt to account for the interactions of those chemicals in the air or in the water. It does not attempt to necessarily account for how those specific mixtures of chemicals will affect folks based on their vulnerabilities.

All it does is attempt to look at, we talked about this earlier, what is the reality of environmental and public health conditions in a particular community? And then it works to try to address those. So one of the big points of pushback in earlier department efforts to try to address cumulative impacts and ultimately was hanging over the idea of actually passing a bill in 2020, was whether you could actually do this. Because at that time, and things have advanced, and there’s reports coming out even yesterday showing how it kind of a true cumulative impacts analysis that work is advancing. At the time, now five years ago, there were people who could credibly say, “You actually can’t do this.”

And if you can’t do it, then what’s the point of passing a law that says you should? And what we were able to do, and I’ll give a lot of credit to folks like Steve Anderson, Sherry Driver who worked at the department for years and years and years on this work, quietly behind the scenes in their extra time. When we were negotiating the bill, they were able to show proof of concept on these things. They were able to say, “We know where all these facilities are and can plot them out based on this demographic criteria. We can show you that most of your major air facilities are concentrated in very specific places.”

And I think that the work that you do to carefully consider the data, carefully consider how you want to quantify these things, is really important in how it will ultimately be translated into regulation, into operation.

Hannah Perls:

You mentioned a report that came out yesterday. So we’re going to link to the report that just came out from the National Academies on cumulative impacts analysis, which we should say Charles played a part in. Charles, we’ve been talking about a lot of concepts that you’ve pioneered and I want to lift those up. So one piece I think as we look at other states that have adopted cumulative impacts programs or have bills moving through their legislature, and there’s a significant number. We have I think eight states that have cumulative impact requirements in their permitting program specifically, and then an additional 10 states that have bills moving that would adopt a similar framework.

And I think a common question is, well, why don’t we just copy and paste the New Jersey bill? And the response is this “fit for purpose” framework that you’ve pioneered. And so I just want to have you explain that a little bit. What does that mean and what are the different decision contexts that people should think about when they’re trying to apply this framework to their particular situation?

Charles Lee:

Thanks for that. I’ll try to do a good job on this.

Hannah Perls:

And I will say, to your research, I’m asking you to explain a lifetime of work in five minutes.

Charles Lee:

Well, first of all, I mean this idea of fit for purpose, I think it has been in the public health environmental analysis literature, it’s been in the risk assessment literature. And I came across it when I was thinking about how the environmental justice analysis has come about and evolved. And so I guess you can define this as that different types of decisions may require, probably will require different types of analysis, different types of data, different combinations of quantitative and qualitative analysis, different degrees of quantification to inform them. And what we want to do is not just to do an analysis for its own sake, but to inform decisions. So the analysis should be tailored to the decisions that we’re trying to make.

And so in the environmental justice space, when we first started to develop EJ mapping tools like CalEnviroScreen and US EPA’s EJSCREEN, we did this with the idea of just trying to identify places where you can go to do more outreach or analysis, and we never thought of it as something that can be used for any purpose other than that. And then what happened in California was that a law was passed as Senate Bill 535, that called for 25% of the proceeds of the greenhouse gas reduction fund in the state to benefit what they call disadvantaged communities. And CalEPA decided to use CalEnviroScreen to make those determinations.

And for me what that meant was that some of these tools that we originally developed that we didn’t know could be used for these type of purposes, it turned out that these tools can in fact be used for making very impactful decisions like where you allocate resources. And in California that has amounted to billions of dollars that goes into the communities where they are most in need, the most overburdened, and underserved communities. And that of course has been replicated in other states and became the approach behind the Justice40 Initiative during the Biden administration. But the kind of tools that are going to be necessary for a more regulatory context like permits or rules are probably going to be different.

And we’re seeing these emerge now with New Jersey DEP’s approach in terms of its cumulative impacts and methodology. Again, in the context of your question, different states are going to have different kind of statutory language, and out of that, you’re going to have to develop methods and regulations to suit those statutory goals. I think it’s fair to say that in Massachusetts the approach is somewhat different. It’s much more of a threshold-based, risk-based approach that’s based on health endpoints. And so we don’t need to get into all of that, but that is just to say that there are different approaches emerging even in the permit space.

And I think when we get to national rules, the kind of analysis, the scaled analysis, and the kind of data that’s going to be necessary, and the kind of questions you’re going to have to answer are going to be different. So it’s important to note that cumulative impact analysis is not just one thing, and the key to understanding how to make it so that it is practicable is to understand the decision context and to understand that you can tailor your analysis to suit those decision contexts. So there is a conversation that took place when EPA went to the Science Advisory Board, and I think this is back in 2021, 2022.

When around the recommendations, the Office of Research and Development’s recommendations around cumulative impacts research, and the members of the SAB all said, “This is a really laudable exercise.” But that it was nearly impossible except for one person, Dr. Kristi Pullen Fedinick who said, “It may seem that way, but actually if you start to understand the idea that you have decision context and you can tailor analysis to various decision contexts, then it becomes something you can get your hands around.”

Sean Moriarty:

I’m in love with Charles’s fit for purpose approach. When you think through the different implications of practicality, defensibility, all those things, and how different approaches, single score method out of California, or matrix method out of New Jersey, or risk-based thresholds out of Massachusetts, all of those are valid ways to do this. They all come with different risks, different practicalities, and you can kind of see when you plot them out on that fit for purpose continuum, you can see how they fit together and how they can be used to advance different but at times maybe concurrent priorities.

The other thing about… joke, of course, everybody’s should copy New Jersey because I’m from New Jersey, but I think it’s just important to know every state has communities that have specific needs and specific concerns. So there may be some broad validity to the idea that the approach we took in New Jersey can be kind of operationalized and used other places. But at the end of the day, what this requires, if we’re going to really address cumulative impacts, and we’re going to address these quality of life issues that we’re talking about, is you need to understand the specific types of stressors that are of concern in the communities within your given state, municipality, wherever.

And you need to understand what the types of facilities that are most of concern. So I wouldn’t cut and paste our list of facilities to everywhere else because I don’t think that would be valid, but I do think there are parts to this. There are principles at play that can be useful, but ultimately those things got to be crafted, I think, to meet the needs of the communities. And I think that will have better outcomes, but we can offer perspective and understanding of the tools that are available to folks to try to get at those outcomes.

Hannah Perls:

There’s a menu and you can sort of lay out what’s on the menu and then folks can sort of pick a la carte, what makes the most sense for them in their state.

Charles Lee:

Because the whole point of all this is not just to do the analysis, but it is to utilize them in terms of better decisions.

Sean Moriarty:

And on that menu, how those things interplay is important too. You might not want to select pineapple on pizza because that’s disgusting.

Hannah Perls:

Wow, hard take.

Sean Moriarty:

But those things might be great in other contexts, just maybe not combined all the time.

Hannah Perls:

It’s a very specific take. We might get our first hate mail from people who love Hawaiian pizza. So thanks for that, Sean. As we flagged this is a really exciting and sort of quickly moving tool in terms of seeing states in particular operationalize cumulative impacts analysis in their permitting programs. And so the last question I want to ask you both is if someone is coming to you saying, “We’re really excited about this idea. I’m living in X State, where do I start?” Or they’re coming to you to say, “I’ve looked at New Jersey’s program, I understand it, but I’m trying to figure out what am I not seeing? What am I missing?”

Are there any resources or people or ideas that you would want to make sure you point them towards as they go about this process?

Sean Moriarty:

I think some of the work that Charles has been doing, and I’ve been fortunate to work in collaboration with him on, it’s like trying to build a community of practice around this work and bringing together people with the experience and the perspectives and the understanding and how you define these issues, how you advocate for these issues, and ultimately how you operationalize permitting solutions in the long term. I think that approach is really, really critical to anybody who’s interested in this. If somebody came to me the first thing, I would want to make sure that either they were from the impacted communities or we’re speaking with them. I think that’s the first part.

This has to be driven by folks in those communities. You got to first start there, identify the concerns, and talk to folks and have them drive the bus on this. But I think the work that we’re doing now is to try to create a support system for folks who are on that bus and who want to see these things in their state. And I think you look at the work we did in New Jersey, you look at the work they did in Massachusetts, or look at the ongoing work in New York, Minnesota, Connecticut, you can see how these things are playing out. Everybody’s in different stages. Everybody has slightly different statute, slightly different approach, but all kind of aimed at the same goal of reducing these disproportionalities.

I think by engaging with those folks, by talking to them, by understanding what’s happening in other states and taking advantage of the resources, I think that can help to provide folks with the tools that they need to engage in this conversation, to answer the pushback that they’re going to get, to understand where folks are going to be uncomfortable, and try to figure out ways in which you can craft something that for your communities and in your particular political environment will be workable and move forward. I’ve started to believe that at least personally, having data is really, really critical to being able to identify and demonstrate this issue.

Folks have said, “Well, how do you get the agency to understand?” I would say, “Go for a walk, go out and walk around communities and understand what you’re actually regulating.” That’s one piece. But beyond that, I think having data available, having mapping in some case might be really useful as a first step to be able to demonstrate to folks that there actually is a problem. And then you have the tools available through these other approaches to begin to really address that.

Hannah Perls:

The Tishman Center just released a new dashboard that has a map where you can actually scroll through all the different state laws, rules, and then the bills that are moving. So we’ll make sure to link to that dashboard as well because it’s a really fantastic and easy to use resource. But Charles, I want you to have the last word.

Charles Lee:

I just wanted to build off of what Sean said. It is really important to be in touch with communities around an issue like this. I mean, I found that the interest in this issue, as communities become more aware and more developed in terms of their thinking about how to address these environmental justice and environmental injustice concerns, that cumulative impacts is really rising to the fore. And so it’s important to keep in touch with that. In that context, Sean said it, you can say it in another way. Communities have to be in the lead of the conversation and that we have to really tailor what we do based upon what they think are important, what their aspirations are, and how they want to see these types of issues become addressed.

In that context, we’re seeing this is no longer an area where there’s just a lot of activities. We’re beginning to see scholarship begin to emerge. There’s enough practice now to say that we can begin to understand the contours of what the solutions may look like. And so examples of that are you mentioned the New School’s Tishman Center, has developed a database that catalogs all the new policy on the state level and is a database that’s being added to on a daily basis. So that’s a great resource. Professor Paul Mohai, Megan Cunningham, who was a former deputy commissioner for the Chicago Department of Public Health, and I are co-editing a special issue of the Environmental Justice Journal on cumulative impacts and government decision-making.

That is going to be published in December, and it has 17 articles in it. So we could see that there’s a wide amount of, not just interest, but emerging scholarship and of course yesterday’s release of the National Academies of Science, Engineering, and Medicine report on the state of the science and future of cumulative impact assessment.

Hannah Perls:

There’s a lot of resources, a lot of homework for folks. But I think, Sean, just to bring back that community of practice idea, and I think Charles, to your point about the emerging scholarship, it’s not just that people are publishing these things in a bubble. There is a real collaborative community of folks who want to get this right. And so I’m just very grateful to you both for including me in that community, frankly. But I think also just for being willing to have this conversation and share this work, and hopefully this can be a resource for folks as well. So most importantly, thank you for all your work, but also thank you for being on CleanLaw today.

Charles Lee:

Thank you.

Sean Moriarty:

Thank you, Hannah. And thank you to all the folks at DEP who helped me get to this position where I get to have these really fun conversations with folks like you.

Hannah Perls:

Bless them.