NEPA and Cumulative Impacts on Environmental Justice Communities

1. NEPA and Cumulative Impacts on Environmental Justice Communities A Presentation by W. Schulte, Esq. Eastern Environmental Law Center April 13, 2011

2. NEPA, 42 U.S.C. 4321 • National Environmental Policy Act – adopted by Congress in 1970 • NEPA requires all federal agencies to “include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement on” the environmental impacts of a proposed action • The detailed statement that results is commonly referred to as the “Environmental Impact Statement” • NEPA is a procedural statute, meaning it does not contain any substantive requirements • Its aim is to make better and more informed decisions towards preventing or eliminating damage to the environment

3. Impacts to be Considered Under NEPA • NEPA requires Federal agencies to consider direct, indirect, and cumulative impacts. 40 C.F.R. 1508.25(c) • Direct impacts – caused by the action and occur at the same time and place. 40 C.F.R. 1508.8(a) • Indirect impacts – caused by the action later in time or farther removed in distance, but are still foreseeable. 40 C.F.R. 1508.8(b) • Cumulative Impacts – impacts on the environment which result from the incremental impact of the action when added to other past, present, and reasonable future actions regardless of what agency 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

4. Environmental Justice and NEPA • Impacts under NEPA are defined to include ecological, aesthetic, historical, cultural, economic, social, or health, whether direct, indirect or cumulative. 40 C.F.R. 1508.8 • Executive Order 12898 (1994) – directs all federal agencies to make achieving environmental justice part of its mission • CEQ EJ Guidance Under NEPA (1997) – interprets NEPA as implemented through CEQ regulations in light of EO 12898 • EPA Guidance for Incorporating EJ Concerns in EPA’s NEPA Compliance Analyses (1998)

5. Key Themes for Addressing Cumulative Impacts on EJ Communities • Identify the affected population • Minority population - present if the minority population of affected area is meaningfully greater than minority population of general population (EPA Guidance) • Low Income population – poverty data from the Census Bureau may be used (EPA Guidance) • Use of non-traditional methods are encouraged – such as reaching out to community based organizations or municipal health or environmental boards • Identify disproportionately high and adverse effects • Past, present, and reasonably foreseeable future effects – permitted facilities, proximity to high traffic areas, diesel hot spots, etc. • Utilize relevant public health data – abnormal asthma rates, infant and childhood mortality, low birth weight, lead blood levels, etc. • Public Participation • Agencies should aggressively seek to overcome linguistic, cultural, institutional, geographic, and other barriers to meaningful participation, and should incorporate active outreach to affected groups

6. The Pro-active “Hot Spots” Approach • NEPA and similar statutes require agencies to conduct a cumulative impacts analysis when they are undertaking major actions such as permitting a new source of pollution • Another approach that has been suggested is to identify “hot spots” to use in future decision-making • Hot spots are areas where vulnerable and overburdened communities exist together • Vulnerable populations are those that are more susceptible to the adverse effects of exposure because of their circumstances • Overburdened populations are those that are disproportionately subjected to multiple stressors • Once these areas are identified, new and modified sources (as well as permit renewals) should be subject to additional analysis and scrutiny • If the cumulative impacts exceed a certain threshold, additional actions may be taken to mitigate them

8. Asthma Rates Are High Where Particulate Levels Are High

9. Models for the Hot Spots Approach • Several viable models for identifying hot spots that could be utilized by the NJ Department of Environmental Protection have been developed. • Faber and Krieg Model • Combines census data with available environmental data, then tests for income-based and racially-based biases to the geographic distribution of environmentally hazardous sites and facilities • Uses point system to rank cumulative exposures

10. Faber & Krieg Model (Continued) • lThe Faber model also controls for the intensity of hazards in each community by accounting for the area across which hazards are distributed. • Utilizing this model in Massachusetts, Faber and Krieg found that environmentally hazardous sites and facilities are disproportionately located and concentrated in low-income and minority communities • The model can be found at: http://ehp.niehs.nih.gov/members/2002/suppl-2/277-288faber/EHP110s2p277PDF.PDF

11. The California Air Resources Board (CARB) – Wilmington, CA model • A CARB pilot project whose goal is to assess the cumulative impacts of air pollution in the Wilmington area (known as an EJ community) taking into consideration several factors including: • Combined impacts to a community of receptors - from all types of sources (and ideally all media) • Stationary and mobile (roadways, off-road) AND regional background • Can be 1 media (e.g., cumulative air impact assessment) • Ideally multi-media (combined air, water, waste, etc. sources) • This assessment, while limited to air, was quite extensive in including multiple sources of air pollution at multiple scales using advanced modeling techniques to determine impacts at a fine scale.

12. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • Environmental Impacts Assessment : Why Wilmington? • Wilmington community members raised concerns about the multitude of pollution sources in their communities. • Because of its location, adjacent to a concentration of industrial facilities, goods movement-related facilities, and other sources of pollution, the Wilmington area may be subject to a greater concentration of air pollution sources, hazardous waste, soil contamination, and water contamination sites. • Similar to some NJ communities

13. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • Environmental Impacts Assessment : Method • a) The first component of the assessment involved both the identification of all the pollution sources in the Wilmington area and the development of a tool to make that information available to community members. • b) The second component involved the development of a modeling tool (Community Evaluation Tool, or COMET) that enables ARB to evaluate the air pollution cumulative risk within the community. Combined, these tasks help ARB assess the cumulative impacts from pollution in Wilmington.

14. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • Identification of Air Pollution Sources • ARB began by developing a comprehensive inventory of air pollution sources. • ARB staff compiled this information and mapped the results using a Geographic Information System. • The resulting map shows that there are several hundred air pollution sources in the Wilmington area. • Most of these are small air pollution sources. In addition, the map shows intermodal facilities and distribution centers in Wilmington that attract diesel trucks and represent a significant source of pollution within the community, similar to the Port of Newark/Elizabeth.

15. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • 2. Assessment of Cumulative Impacts from Air Pollution Sources : COMET • COMET combines micro-scale modeling for facilities and roadway links, is source-centered by looking at mini-grids within census tracts, overlays micro-scale and regional air emissions, and estimates air concentrations and cancer/chronic risks • When completed, COMET will be able to evaluate the combined air pollution impacts of facilities, major roadway links and regional air pollution. • COMET will be capable of reporting cumulative air pollution emissions, exposure, and cancer risk. By the end of the year, ARB will demonstrate the functionality of the COMET in the Wilmington and adjacent areas.

16. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • Environmental Impacts Assessment : Project Outcomes • Improved understanding of air quality impacts at the community level. • Improved understanding of methods to estimate cumulative impacts. • Development of community-level cumulative air pollution impact model. • Infrastructure for working with the affected community and local agencies and municipalities

17. The California Air Resources Board (CARB) – Wilmington, CA model (Continued) • Environmental Impacts Assessment : Next Steps • CARB will update the Wilmington air emission inventory and motor vehicle traffic information and test the COMET model on the Wilmington area to map cumulative exposure, cancer risk and chronic health risk. • Awaiting update on COMET from Cal/EPA EJ Group.

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