December 08, 2021

Kiana Courtney

#DenyThePermit? A Call for Cumulative Impacts Legislation by Frontline Communities

With cumulative impacts analysis integrated in permitting processes, communities like Chicago's South­east Side could better advocate for needed resources and denial of the permits for harmful facilities.

Environmental justice (EJ) communities are known as sacrifice zones or frontline communities. They bear the weight of pollution and its toxic effects via spatial proximity to industrial or left-behind contamination. Zoning laws and policies corral pollution into neighborhoods historically denied political power, specifically in racially and ethnically marginalized and lower-income communities. EJ communities are a symptom of our current systems that value profit over people and diminish people for the color of their skin, heritage, and bank account. The aim of EJ is to rectify the historical and systemic environmental racism disproportionately burdening EJ communities. This article advocates for a tool to reach justice for communities that have long suffered from the disproportionate burden of environmental pollution: mandated cumulative impacts analyses.

Government and industry acknowledge that EJ communities exist and have disproportionately suffered – and continue to suffer – from pollution, but this acknowledgment should not merely be a box checked off in permitting or remediation programs.

While the phrase “environmental racism” came about in the 1980s with the fight against the Warren County PCB (polychlorinated biphenyl) Landfill in North Carolina, EJ communities began demanding equity and justice long before the enactment of most environmental legislation. The fight against pollution by communities of color has been ongoing since at least the 1960s with the People for Community Recovery in Chicago, Latino farmworkers fighting for workplace rights in California, and Black students in Houston opposing a city dump. But environmental racism itself actually dates back to the inception of colonial America with the taking of Turtle Island—some Indigenous peoples use this name for the lands known as North America. Perpetrators of environmental racism commit systemic violence against Black, Indigenous, and other communities of color by intentionally placing the least desirable land uses in these communities or developing systems such as redlining, which kept “undesirables” (referring to both the people and the pollution) out of wealthier, whiter communities.

We need systemic tools and solutions to eradicate environmental racism. Labeling communities solely by race, ethnicity, and socioeconomic status can identify where environmental racism persists but leaves us at an impasse for solutions. Residents of these communities are still fighting both new and existing sources of pollution. The government tends to focus on informing residents of facilities’ plans to pollute, rather than creating space for communities to decide whether the facility’s siting is even proper, or to appeal permits once granted. Analyzing the cumulative impacts of existing burdens determines the threshold for new sources, which can thereby decrease the overall burdens to health and the environment of these communities. EJ communities have been demanding this analysis for years—and with persistent organizing, this demand is coming to fruition to benefit both the communities and the natural environment. With federal, state, and local legislation on the horizon to protect EJ communities, it is important that these propositions adequately support these analyses.

An example of this fight is happening on the Southeast Side of Chicago: home to mostly Latinx, Black, immigrant, and working-class residents as well as over a dozen permitted pollution-emitting facilities and abandoned, contaminated industrial sites. The Southeast Side and its allies are fighting to stop a metal-shredding facility, known as General Iron, from exacerbating air pollution exposure. In 2018, Reserve Management Group (RMG), a facility on the Southeast Side, acquired the company to expand existing operations near a park and high school. General Iron once stood in North Branch, a predominantly white, wealthy neighborhood, where it operated without an adequate permit. The location is no longer zoned for the metal shredder, as the neighborhood will receive a $6 billion riverfront mixed-use development. Chicago allegedly facilitated the facility’s move to a “receiving corridor,” which are industrial-zoned corridors that receive industry that no longer fit in the North Branch—and not surprisingly, many are in EJ communities.

Despite General Iron’s history, Illinois Environmental Protection Agency (IEPA) granted RMG a Clean Air Act construction permit, finding that it could not deny the permit because RMG’s application did not indicate it would violate the law. Subsequently, residents and their allies ramped up organizing to demand denial of the last permit needed from the Chicago Department of Public Health. Organizers even resorted to a 30-day hunger strike in February 2021 (during the COVID-19 pandemic), with several shorter solidarity strikes designed to get the city’s attention to #DenyThePermit. The strike garnered national attention, but the mayor did not respond.

In late 2020, Southeast Side EJ groups also filed a U.S. Department of Housing and Urban Development complaint against Chicago for its practice of facilitating deals to move companies like General Iron to lower-income communities of color, allowing the land value to increase on Chicago’s north side and decrease on the south side. Southeast Environmental Task Force also filed a Title VI Complaint with the U.S. Environmental Protection Agency (EPA) against IEPA for its permitting decision. Both complaints are still active.

Permit commenters argued that General Iron adds to RMG’s current operations, so Chicago should consider the cumulative effects of at least the entire RMG site before granting any permit. Chicago eventually agreed, leaving the permit pending as it continued its evaluation past the deadline decision. In May 2021, given the potential impacts and pending complaints, EPA requested that Chicago halt the permit process to conduct a health impacts analysis of the neighborhood. In line with the Biden administration’s focus on EJ, see e.g., Exec. Order No. 14,008, 86 Fed. Reg. 7619 (Jan. 27, 2021), EPA offered to assist in the process. Given the novelty of this setting, it will take time and community collaboration to ensure a meaningful analysis. While this is a win for EJ communities, it illustrates the need for a more deliberate process – one that does not necessitate a 30-day hunger strike for a community to be heard.

While this is a win for EJ communities, it illustrates the need for a more deliberate process – one that does not necessitate a 30-day hunger strike for a community to be heard.

But Southeast Side is not the only EJ community fighting these battles. Other neighborhoods in Chicagoland are opposing warehouses, an asphalt plant, coal plant, increases in diesel truck traffic, and other sources or expanding operations in their communities – all while combatting existing pollution and coping with higher rates of COVID-19. Nationwide, communities are fighting to get permits denied and their neighborhoods remediated from decades of abuse and systemic environmental racism. Government and industry acknowledge that EJ communities exist and have disproportionately suffered – and continue to suffer – from pollution, but this acknowledgment should not merely be a box checked off in permitting or remediation programs.

Existing Cumulative Impacts Assessments Must be Strengthened to Protect Environmental Justice Communities

Cumulative impacts analyses are often associated with the National Environmental Policy Act (NEPA). However, these assessments have yet to be federally codified, and instead only appear in guidance and regulations. See, e.g., Exec. Order No. 12,898 § 3-301(b), 59 Fed. Reg. 7629 (Feb. 16, 1994) (stat­ing, “whenever practicable and appropriate, Federal agency human health analyses must identify multiple and cumulative exposures to substantial environmental hazards”). Prior to the Trump administration’s 2020 rollback of cumulative impacts analyses, the Council on Environmental Quality (CEQ) defined a cumulative impact as

“the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or per­son undertakes such other actions. Cumulative impacts can result from individually minor but collectively signifi­cant actions taking place over a period of time.”

40 C.F.R. § 1508.7 (emphasis added). According to the case law, NEPA cumulative impacts analyses should identify “(1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions—past, proposed, and reasonably foreseeable— that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.” Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985). Assertions that there are no cumulative effects or impacts must be shown with facts and evidence. Prior CEQ guidance, in short, required that the agency effectively identify and address EJ concerns by considering the composition of the affected area to determine

whether minority populations, low-income populations, or Indian tribes are affected by the proposed action, and if so whether there may be disproportionately high and adverse human health or environmental effects on them [and] should recognize the interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed agency action.

See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101, 136 (D.D.C. 2017) (Agency’s “bare-bones” con­sideration of the project’s EJ implications violated NEPA hard look requirement). The D.C. Circuit has permitted challenges to cumulative impacts analyses, but the court also stated that with NEPA, an agency is “not required to select the course of action that best serves environmental justice, only to take a ‘hard look’ at environmental justice issues.” Sierra Club v. Fed. Energy Regul. Comm’n, 867 F.3d 1357, 1368 (D.C. Cir. 2017). NEPA, as is, cannot alone protect EJ communities and the environment.

NEPA misses the gamut of issues EJ communities face because many facilities do not fall under NEPA or are not subject to its requirements. Furthermore, NEPA regulations are often subject to the threat of revision to eliminate important analy­ses and reduce the time provided for analyses and public input. See, e.g., Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020) (which limited cumulative impacts analyses); S. 717, 117th Cong. (2021) (UNSHACKLE Act). To be an effective tool in evaluating permitting decisions, cumu­lative impacts analyses need to be codified at various levels of government.

Robust environmental justice mapping could facilitate comprehensive cumulative impacts legislation by providing baseline information about symptoms of systemic environmental racism.

States have been moving toward recognizing, mapping, and analyzing environmental and health impacts in EJ communi­ties. In the early 2000s, California began focusing on cumulative impacts. The state uses a working definition of cumulative impacts and the CalEnviroScreen tool (updated periodically) to identify communities via various factors, not including race, to determine whether a community faces environmental injus­tice. In September 2020, New Jersey passed the nation’s first comprehensive law on EJ and cumulative impacts (N.J. Stat. Ann. § 13:1D-157), driven by community advocacy efforts. The law calls for an evaluation of environmental and public health impacts of specific facilities on overburdened communities and mandates permits denial if there is a determination that the new facility would disproportionately impact overburdened com­munities compared to other New Jersey communities. In March 2021, Massachusetts passed a law to better define EJ and require the development of cumulative impacts analyses before permit approvals. Mass. Acts 8 § 102 (2021).

Other states require cumulative impacts analyses but have topical limitations. For instance, New York permit applicants must conduct a cumulative impact analysis of air quality in accordance with an approved air modeling protocol. See N.Y. Comp. Codes R. & Regs. tit. 6, § 487.7. Washington’s Clean Energy Transformation Act requires a cumulative impact anal­ysis to designate communities highly impacted by fossil fuel pollution and climate change. Wash. Rev. Code § 19.405.140 et seq. Colorado, in 2019, amended its Air Pollution Prevention and Control Act to require agencies to identify dispropor­tionately impacted communities and promulgate rules and regulations for ongoing tracking of emission sources that adversely affect disproportionately impacted communities. Col. Rev. Stat. § 25-7-105. And in Minnesota, its Pollution Control Authority evaluates cumulative effects of past and current air pollution for air permits in South Minneapolis. Minn. Stat. § 116.07(4).

There is indeed traction for cumulative impacts analysis at the local level. For example, in Newark, New Jersey, organiz­ers fought for the 2016 Environmental Justice and Cumulative Impacts Ordinance that amended zoning and land use regula­tions. The ordinance, in part, seeks to protect residents from pollution linked to adverse health effects, including “cumulative impacts that may be worsened as an unintended byproduct” of new or redevelopment. Newark, N.J., Zoning & Land Use Reg. § 41:20-1 et seq. It creates a Natural Resources Index to iden­tify disproportionately burdened areas and an Environmental Review Checklist of environmental impact information.

Few of these existing options fully protect EJ communities from additional pollution burdens. Federal cumulative impacts analysis legislation is fraught with applicability and implemen­tation problems. State and municipal level requirements are promising but exist in a few states and communities. Existing federal legislation and permitting regimes do not provide for meaningful impact analyses, nor do they permit denials where facilities add to the pollution burden of EJ communities.

Mapping is the First Step, Not the Endgame

Robust EJ mapping could facilitate comprehensive cumulative impacts legislation by providing baseline information about symptoms of systemic environmental racism. As Charles Lee stated in his 2020 article “A Game Changer in the Making? Les­sons from States Advancing Environmental Justice Through Mapping and Cumulative Impact Strategies,” 50 Env’t L. Rep. 10203 (2020), identifying and prioritizing environmentally burdened and vulnerable communities is a fundamental first step to integrate EJ in government decision-making and the EJ mapping discourse holds the potential to more precisely characterize and operationalize the concept of disproportion­ate impacts. Lee notes that mapping is a “gateway” to get at the problems of structural environmental racism. As noted above, however, involving EJ communities often stalls at public partic­ipation. While this is critical to giving people a voice, it cannot be the sole focus. Regulators and the regulated industry must give often-marginalized residents a seat at the table and the power to prevent pollution burdens.

As Lee explains, EJ mapping tools combine the data sets on environmental burdens, demographics, and other vulnerabil­ity factors, enabling regulators to systematically take this reality into account during environmental decision-making. While EJ communities are traditionally defined by race and socio­economic status, CalEnviroScreen (from California EPA) and EJSCREEN (from EPA) both provide additional metrics to iden­tify EJ communities. CalEnviroScreen analyzes four categories that have sets of indicators: exposures, environmental effects, sensitive populations, and socioeconomic status. The average of exposures and environmental effects that represent the pollu­tion burden is multiplied by the population characteristics to get a score that quantifies the cumulative impact on a census tract. EJSCREEN provides, at the census tract level, demographic data and environmental exposure indicators (e.g., particulate mat­ter (PM), traffic, proximity to certain sites, and air toxics cancer risk). EJSCREEN data derive from national data sets, which can hamper flexibility likely needed in state analyses.

In other states, Illinois and Pennsylvania, for example, envi­ronmental agencies opted to map income and race for the primary purpose of enhancing public participation. North Car­olina includes demographics and site characteristics but does not include cumulative risks due to its lack of integrative tools. Some states follow the California model more closely. In Illinois, the Environmental Justice Commission developed guidelines that map aspects of CalEnviroScreen and EJSCREEN to create a threshold score and lets communities apply to self-identify as an EJ community. Maryland and Michigan prioritize additional factors relevant to their residents like blood lead levels, proxim­ity to treatment, and life expectancy. Michigan’s tool, however, does not derive from legislation, so there are fundamental resource constraints on the state’s implementation of the tool.

Given the need for this analysis, some communities inde­pendently map cumulative impacts. For example, the Natural Resources Defense Council with EJ community partners cre­ated a map of cumulative impacts in Chicago by visualizing EJSCREEN environmental and demographic indicators.

More Than Mapping: Adding Teeth to Cumulative Impacts Analyses

Mapping tools alone will not stop polluting facilities from com­ing into EJ communities. Zoning, land use, and environmental regulations all enable this, so legislation must have mechanisms to protect communities. Legislation must empower the com­munity in both the analysis and execution. It must mandate and promote meaningful public participation and robust map­ping. It must also encompass the array of metrics identified by communities, including, but not limited to the EJSCREEN and CalEnviroScreen factors, allocation of investments and tax dol­lars, climate vulnerability, life expectancy, other indicators of health, subsistence fishing, the state of educational facilities, exposure to heat island effect, presence of food deserts, toxicity risk analyses, existing sources of pollution, and other pend­ing permits. The analysis could also include community assets to assess gaps and find ways to offset burdens. Ultimately, the analysis should prioritize the community’s recommended met­rics because the community bears the burden and has expertise in its neighborhood. Consequently, if a community is not rec­ognized as EJ based on a mandated formula, legislation should create a process for EJ community self-identification, so a com­munity is not incidentally ignored.

Federal legislation for cumulative impacts analyses can be implemented programmatically in congruence with new permits for facilities.

Legislation should anticipate the need for time and resources. A moratorium on permitting for new or increasing sources of pollution while data are gathered could ensure that facilities do not bypass the review process. Alternatively, data gathering and mapping could be a component of the permit application. Legis­lation should also provide communities adequate resources and funding to engage in this labor. Finally, legislation should give permitting authorities at all governmental levels the author­ity—if not the duty—to deny any permits that will add to the disproportionate pollution burden suffered by EJ communi­ties. Legislation or ordinances that require this assessment must require denial of permits if the analysis supports such a deci­sion. While it is important to have cumulative impacts analysis legislation codified at the federal, state, and local levels, there are benefits and drawbacks at each governmental level.

Federal legislation for cumulative impacts analyses can be implemented programmatically in congruence with new permits for facilities. The federal government could set mandates as the floor for state programming, while states implement their own programs, with federal resources to support those programs. This type of cooperative federalism is key for cumulative impacts analysis because state and local governments are the entities that should have stronger relationships to affected communities.

State legislation could also be more flexible than federal. States can rely on data sets that are unique to their residents and have the space to better engage with communities. How­ever, there are hurdles to widespread implementation given the range of states’ staffing, financial resources, and political will. State authority could, however, be more swiftly implemented without the need for federal approval.

It is critical for local governments to measure cumula­tive impacts because environmental permits exist outside of the federal and state permitting programs. Local cumulative impacts analyses would facilitate gathering data at a more gran­ular level to better illustrate the pollution burdens. While this article is not calling for the eradication of places like bakeries, crematoriums, or laundromats, which would hold those per­mits, it is important to account for their siting, especially when near vulnerable subpopulations in EJ communities like the young, the elderly, and those with respiratory health conditions. Local governments also have (or at least should have) a more direct line of communication with residents. Residents and city officials can collaborate to record granular and consistent data about the assets and burdens in the community as these vari­ables can change. For instance, Southeast Side residents have been cataloging the environmental and health impacts affect­ing their community, so Chicago and EPA should lean on residents for these metrics. With cumulative impacts analysis integrated into permitting processes, communities like the South­east Side could better advocate for needed resources and denial of the permits for harmful facilities.

Given these varying benefits and drawbacks, there should be a cocktail of mandates to account for every impact. Different forums ensure that enforcement is not left to the political will of one entity. Each mandate must be enforceable and mean­ingfully engage and empower community so that regulators and the regulated industries must engage residents as decision-makers, and public participation is not simply performative. Ultimately, this process requires relationship building, time, funding, and political will. This, of course, is also dependent on the governments’ regulatory authority. But given the pervasive nature of environmental racism and its confounding effects, governments and communities should collaborate to find alter­native processes.

In sum, legislation mandating cumulative impacts analyses should include a robust assessment of metrics, with a particular focus on metrics proposed by EJ communities, and should incorporate mapping to illustrate pollution burdens. It should consider past, present, and reasonably foreseeable future actions, and beneficial alternatives. These analyses would be a data source and factor in permitting programs. Legislation should also include methods to track progress and growth, allow transparency of information, and set channels for mean­ingful public participation, communication, and relationships between the government, residents, and regulated commu­nity. Legislation must require denial of permit applications that contribute to EJ communities’ pollution burden and cre­ate a residents’ right of appeal for approved permits. Of critical importance, legislation should also provide adequate funding— this is key because local and state governments may lack the financial or technical resources.

Cumulative impacts analyses are not going to solve environmental racism or other forms of racial and social injustice. We need a variety of systemic changes to retool how we allocate resources to communities. But cumulative impacts analyses as described herein are critical in bringing marginalized communities equity and justice. As on Chicago’s Southeast Side, this analysis can be an accounting of the harms communities face and provide guidance on how to alleviate them. Communities need pollution remediation and investments that are not disruptive. Nevertheless, with meaningful cumulative impacts analyses legislation, we can establish a system that funds and mandates steps toward rectifying environmental racism.

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©2021. Published in Natural Resources & Environment, Vol. 36, No. 2, Fall 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.