Environmental Justice and the Cumulative Impacts of Pollution

Margaret Walls: Can you tell us how you came to work on environmental justice issues and pursue this combination of scholarship and community engagement that seems central to your work?

Ana Baptista: I grew up in a community called the Ironbound in the East Ward of the great city of Newark, New Jersey. Growing up in a place like Ironbound, you get a true sense of environmental injustice. I grew up close to industrial sites, the seaports, and what became the state’s largest garbage incinerator.

Some of my earliest exposure was to issues that, at the time, I didn’t know were called environmental justice or environmental racism. I understood it as people dumping in our communities. Residents there were organized and proud of their community. As a kid, I participated with my family in many of the protests, community meetings, and efforts to try to protect our community and improve our quality of life.

Growing up in that environment made me acutely aware of the differences between communities and neighborhoods and the lack of protections for communities like mine. I ended up going off to study environmental science and, eventually, urban planning. My studies brought me full circle—I came back home to do a doctorate at Rutgers University on environmental justice, and I got sucked right back into local organizing work with the Ironbound Community Corporation. I was privileged to be able to take all the things I learned in school and apply them in my own community.

In your study, you say that cumulative impacts have been a focus in the environmental justice community for decades, even though they’ve risen to the forefront in the policy world only recently. What do we mean by “cumulative impacts,” and why are we concerned about them, especially as related to environmental justice and disadvantaged communities?

Cumulative impacts represent the idea that, when a community has many sources of pollution, that community is exposed to a variety of chemicals from a variety of sources. Often, underlying socioeconomic and health conditions will shape a community’s experience and increase its exposure, contributing to the combined effect of stressors.

Simply put, cumulative impacts cover multiple pollutants that are emitted by multiple sources in a community, along with the interactions of these pollutants with each other and the preexisting social vulnerabilities. The US Environmental Protection Agency (EPA) has a more scientific, precise definition that talks about the combined exposure to a broad range of stressors, including pollutants, chemicals, what you inhale, what you drink, and what you eat. All of those things increase your vulnerability to environmental hazards and can result in significant harms to the environment and public health and risks to people.

Do you also consider things such as exposure to flood risks, urban heat island effects, and climate impacts as part of that mix?

Definitely. Climate risks are part of the combination of factors that could impact an individual and a community’s well-being. Cumulative impacts include anything that increases the vulnerability and exposure to hazards by residents.

Do cumulative impacts typically fall through the regulatory cracks? If they do, can you explain how and why that happens?

This is one of the biggest challenges in the environmental justice movement. People in communities that are facing multiple sources of pollution often go to their federal, state, or local agencies and say, “We have too many exposures. We have too many pollutants.” Oftentimes, environmental regulations are not set up to define cumulative impacts—the interaction of pollutants from multiple sources. The laws regulate pollutants by media and by pollutant type according to federal and state statutes. It’s very frustrating for residents when they are experiencing a complex combination of factors that puts them at risk.

Our current environmental laws don’t have a way to characterize those risks nor to include them in the decisionmaking processes for things like permitting new pollution sources or regulating those sources. It’s definitely been an issue that has fallen through the regulatory cracks. It’s an issue that agencies increasingly are aware of and have studied, but they’ve not yet created the legal and regulatory tools to address these cumulative impacts affirmatively.

In May 2022, EPA put out a report and an addendum that looks at the agency’s legal authority to address cumulative impacts under current laws and statutes. In this report, EPA tried to distinguish where they have discretion and where they have an opportunity to consider cumulative impacts in the context of various types of decisionmaking settings. The document makes clear that these legal reviews are not meant to provide specific action on specific decisions. Those decisions are left to EPA offices, EPA programs, and the states.

I feel like permitting doesn’t get enough attention, especially in environmental justice policy conversations. Can you talk about how permitting works and the important role of state agencies in this process?

I have to emphasize how important permitting is. For many environmental justice communities and organizations, permitting is the bread and butter of many of the conflicts and fights that they engage in to protect their communities. Environmental justice communities have been grappling with permitting decisions for decades and oftentimes hit a brick wall, because no path forward exists to ensure that permitting considers cumulative impacts.

Permitting in the environmental context has continued to maintain and entrench patterns of environmental racism. We see a clear co-location of polluting industries in communities of color, Indigenous communities, and low-wealth communities. Permitting is one of the ways that those patterns continue to be entrenched, because permitting doesn’t take into consideration historical patterns of land use that originally segregated these communities and created concentrated pockets of industries.

Environmental laws generally are the purview of the federal government and state governments. Most environmental laws, like the Clean Air Act, are passed at the federal level, while others are delegated to the states to carry out. States most often are the legal entities that issue permits under their own legislation. States can adapt and create their own version of the Clean Air Act that originally was delegated to them under federal laws.

Even though EPA sets the floor—in other words, the federal Clean Air Act is the minimum that states must implement—many states have the discretion to go beyond EPA’s laws and federal laws. States have a lot of discretion in the level of enforcement and scrutiny that they can apply to their authority to permit industries. Some states go far beyond the stipulations of the federal laws, but many states barely implement the minimum federal requirements. We see quite a difference among states in terms of how they apply permitting.

Your report provides an overview of what’s happening among the states, including a detailed online tool that accompanies the report, with links to peer-reviewed studies and pieces of legislation. It’s a good resource. Can you say more about what you found on the differences across the states and if states are trying to address cumulative impacts?

The effort to pull together this tool and resource that the report highlights came out of requests from environmental justice advocates in different states who are pushing cumulative-impacts approaches in their own states. They are having a hard time coming up with a methodology or model legislation, because no clear, standard set of guidance exists for across the United States.

So, we looked at where states are implementing or trying to implement cumulative-impacts approaches either through legislation, agency policy, or guidance documents. We took a broad look at how states are defining cumulative impacts, what kinds of methodologies or mapping tools they’re creating, and how they’re fleshing out the particular issues in their own states and communities.

We found that, in the last five years alone, there’s been a huge uptick in legislative activity at the state level with respect to cumulative impacts. Several laws have been proposed—and some actually passed—in places like New York, New Jersey, and California. Many states are passing cumulative-impacts laws, and many states are proposing them, even though they’re not getting passed or enacted. There’s a big push from the environmental justice movement to advance cumulative impacts more forcefully.

The report also shows that, prior to the last few years, much of the cumulative-impacts work was happening in the form of studies, mapping, or guidance documents. The problem was being studied a lot. Jump to today, where we see states taking a much more proactive approach to enact actual cumulative-impacts mechanisms, which includes decisionmaking mechanisms. Communities don’t want to wait for the perfect modeling and all the years and decades that science takes to study the problem. They want to have a bias toward action and push more definitive regulatory and protective approaches for communities.

Your home state of New Jersey seems to be at the forefront. In the latter part of 2020, the state passed a cumulative-impacts law. Long years of work elapsed to get this piece into legislation, in which you played a role. Can you describe what the law does and where things currently stand in implementing the law?

The law that passed in 2020 was almost a decade in the making. Environmental justice advocates in the state—groups such as Ironbound Community Corporation and the New Jersey Environmental Justice Alliance (of which I am a very active member)—had been pushing for an approach to cumulative impacts within our state regulatory agencies for a long time. Sometimes the political opportunity, interest, or will just was not there to pass a more aggressive law, but we continued in our efforts to develop strategies for approaching cumulative impacts.

Along the way, many people told us that this was impossible, that we don’t know how to do cumulative-impacts policy, and that it’s never been done. Not to be discouraged, we pushed on, and we found a wonderful champion in Senator Troy Singleton (D-NJ), who is a New Jersey legislator. Senator Singleton championed this bill and entrusted environmental justice advocates to become thought partners and thought leaders alongside him and the New Jersey Department of Environmental Protection, with whom we worked closely to develop a specific law.

The law sets out which communities are environmental justice communities or, as the law defines them, “overburdened communities.” The law makes this classification by looking at the percentage of people of color, low-income people, and linguistically isolated people across every census block of the state and sets a threshold that is around the state average. Community census blocks above that state average are considered overburdened, or environmental justice communities.

The law has a set of facilities and a set of permits—mostly major permits, such as air-quality permits and anything related to waste or hazardous waste. Eight different types of facilities and several different types of major permits trigger this law. For example, if you’re an applicant seeking a permit (like an air permit that falls under Title V of the Clean Air Act) in an overburdened community census-block group, you will be subject to the law and have to prepare an environmental justice impact statement.

How they prepare the cumulative-impacts assessment is a bit complicated and technical. The state developed a set of 23 stressors, looked at the levels of those stressors in overburdened communities versus non-overburdened communities, and set a 50 percent threshold. If an industry will be located in a community where those stressors are above the state average for non-overburdened communities, then the industry would be considered as causing or contributing to adverse environmental health and public health stressors. The state then must deny the permit. The legislation requires the state to say no to industries that will contribute any absolute amount of pollution in a community that’s already experiencing above-average stressors.

The law also applies to renewals of permits. It allows the state to specify mitigating factors as conditions for existing permits at the time of renewal. This was the first and only law, until New York recently passed their law, which requires the state to say no on the basis of cumulative-impacts considerations.

Recently, the public comment period was introduced. We submitted comments on the rules. Often people think, “Oh, the law is passed; we’re done.” But it took us two years to go through the rulemaking process, which is the technical process for how the state will implement the law. Those rules are important, because they detail exactly how cumulative impacts will be determined, and they define all the parameters that the state will use to do those reviews. [The rule has since been finalized and enacted, as of April 2023.]

How much pushback did you get from industry through all of this?

If you’re not getting pushback or opposition to your rule, it’s probably a bad sign that your rule is not strong. I took it as a good sign that we had significant industry opposition to the rule. They made many claims about how this rule is going to kill business in distressed communities, that it’s going to push industries completely out of the state, and that it’s too restrictive. Industry voiced a lot of concerns and opposition, many of which I think are largely exaggerated.

Many of the complaints reflect the attitude that we need these environmental justice communities as dumping sites. Without the ability to continue to place and concentrate pollution in these communities, the industries feel threatened—instead of thinking about how we can mitigate what we’re doing or how we can distribute pollutants from these industries to other places. The response was telling, but very expected.

We also had opposition from labor unions that were being pushed by industries to make claims that this rule would kill union construction jobs. For the most part, many of the facilities that are covered by the law have little job potential, especially for local economies and local communities, other than construction permits. The law doesn’t apply universally to every kind of facility type. It’s narrowly focused on industries that are most impactful and polluting.

We anticipated the pushback, we got it, and we think we will continue to get industry opposition as the state denies permits.

I’ve heard people say that health-risk assessments, which underpin EPA regulatory impact analysis and guide policy, often are focused on a single pollutant. Your comment earlier suggests that we need to move on from that method of regulation. What research needs to be done around this topic? What gaps need to be filled?

We still have a lot of work to do; for example, evaluating the benefits of cumulative-impacts interventions. What is the value of different types of approaches? When we say no to permits, do the facilities move to other places and have similar impacts? Do we see conditions for mitigating impacts in communities?

We have good data on things like air quality, density of permits, and facilities. But we still don’t know how to integrate qualitative local forms of information about stressors into quantitative cumulative impacts, assessments, and tools. We have gaps in knowledge about local conditions, which could make a big difference to community stressors and which are important to the health and well-being of local areas. We also don’t have a lot of experience with integrating different types of data into cumulative-impacts analyses—things like participatory science and traditional ecological knowledge.

There’s great science being done to get a better sense of community-level and personal exposure to nonchemical and chemical stressors. We know that communities that are most vulnerable to pollution also are facing circumstances of chronic stress; uncertain housing conditions; lack of access to public health care; and, increasingly, climate change–related risks. How do these things combine to heighten the impacts or risks from things like air pollution?

There’s a lot that we can explore and better refine, because the reality is that our cumulative-impacts tools probably just are scratching the surface of what the real impact is on communities. Our tool likely is wildly underestimating how burdened communities are, but we also can’t wait for the perfect methods of measurement. Improvements to the tool are important in parallel with taking action.