Sanne H. Knudsen, The Flipside of Michigan v. EPA: Are Cumulative Impacts Centrally Relevant?, 2018 Utah L. Rev. 1 (2018), https://digitalcommons.law.uw.edu/faculty-articles/230
Utah Law Review
Michigan v. EPA
This Article explores the flipside of Michigan--where the Court's logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and--like cost--deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate.
In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget. In support of that thesis, this Article proceeds in three parts. Part I examines the Court's reasoning in Michigan with the goal of creating a blueprint for deciding when a factor is “centrally relevant” to regulatory decisionmaking.
Part II then shows why cumulative impacts so permeate the set of concerns embodied by environmental law that they qualify as centrally relevant factors that ought to drive regulatory choices. Finally, Part III provides some examples of how focusing on cumulative impacts through the judicial review framework could reinforce the public health missions of environmental laws. Indeed, in the struggle to understand the impacts of a climate changed world on the availability, vulnerability, and distribution of resources, this lens of cumulative impacts will be even more critical to the mission of sustaining healthful communities.