Precaution, Cumulative Impacts, and Environmental Justice in Environmental Permit Review

In recent years, in response to environmental justice (EJ) advocacy, some states have passed laws directing agencies to assess cumulative impacts (CIs) during environmental permit review and, in some cases, to deny permits that would increase CIs in disproportionately impacted areas. This type of regulatory reform is often characterized as the “gold standard” or “holy grail” of EJ policy implementation. Addressing CIs within regulatory decision making entails significant challenges, including technical uncertainties (data gaps, incommensurable data, and conflicting interpretations of existing data) and subjective points of decision making about how to proceed in the context of such technical uncertainties. How agencies address these challenges shapes how well these laws’ implementation supports EJ. However, government materials and media coverage about these CI laws and regulations have said little about these challenges and how agencies will address them, thereby shielding these issues from public debate. EJ advocates, in contrast, argue that agencies should use the precautionary principle to help navigate these technical uncertainties and subjective points of decision making. In this article, we build upon that work by identifying what it could mean to operationalize precaution within CI policy implementation. To do so, we draw on examples of the integration of CI assessment into environmental permit review—specifically, the new CI laws and regulations of New Jersey, New York, Massachusetts, and Minnesota. We identify how precaution is operationalized within these CI laws and regulations, and how this can be done more fully to better support EJ.