Alice Kaswan on CPRBlog {Bio}
[ Next ]

The Clean Power Plan and Environmental Justice: Part Three

On Thursday and Friday of last week, I blogged about environmental justice and the Clean Power Plan. My first post considered how stringent targets and the right incentives could lead to significant aggregate reductions that will indirectly lead to reductions in co-pollutants that have a disproportionate impact on of-color and low-income communities. Friday, I examined the plan’s distributional effects and its provisions requiring community engagement. Today, I’ll examine provisions intended to help overburdened communities benefit from a transition to genuinely clean energy, and then I’ll draw some conclusions based on the issues discussed in all three blog posts.

Co-pollutant impacts are not the only environmental justice issue. Rising energy costs are a serious concern for poor families who spend a disproportionate share of their income on energy necessary to stay warm in winter and, increasingly, to stay cool in summer. In addition, justice questions arise as we consider who will benefit from the lower costs and jobs created by clean energy and demand-side energy efficiency.

The Clean Power Plan addresses concerns about rising costs and about the distribution of energy-efficiency benefits. The Clean Energy Incentive Program, which will provide matching federal allowances for investments in renewable energy and energy efficiency, targets the energy efficiency incentives exclusively to investments in low-income communities. By helping households reduce energy use through energy efficiency programs, poor households’ energy bills can stay the same or be reduced, notwithstanding potentially higher energy rates.

Full text

The Clean Power Plan and Environmental Justice: Part Two

Yesterday in this space, I discussed how stringent Clean Power Plan targets are critical to achieving significant aggregate co-pollutant reductions that will indirectly benefit many overburdened communities. Today, I turn to classic environmental justice issues: the distributional effects of the plan and its community engagement provisions.

As I explained in my short essay in CPR’s policy paper, The Clean Power Plan: Issues to Watch, it is difficult for EPA to directly control the plan’s distributional effects given the realities of an interconnected grid and the states’ important implementation role. Environmental justice groups had suggested that EPA require states to do an environmental justice assessment of their state implementation plans. The Plan acknowledges the importance of localized co-pollutant impacts on communities of color and low-income communities and “encourages” states to evaluate the impact of their plans of vulnerable communities and ensure that they benefit from the rule’s implementation. It did not, however, require such an assessment.

Nonetheless, the preamble suggests EPA’s strong support for considering co-pollutant impacts in developing state implementation plans. EPA notes that states are required to engage in long-term planning to reduce criteria pollutants, and observes that: “Multi-pollutant strategies that incorporate criteria pollutant reductions … jointly with strategies for reducing carbon dioxide emissions from affected EGUs needed to meet Clean Power Plan requirements … may accomplish greater environmental results with lower long-term costs.” The agency states that the Clean Power Plan implementation process creates an opportunity “to consider the most effective means of meeting … obligations while limiting or eliminating localized emission increases that would otherwise affect overburdened communities.” 

Full text

The Clean Power Plan and Environmental Justice: Part One

Though directed at greenhouse gases, the Clean Power Plan, by controlling existing fossil-fuel power plants, will have important implications for associated co-pollutants, many of which continue to be emitted at unhealthy levels notwithstanding decades of control.  The degree to which the Clean Power Plan will lead to reductions in traditional pollutants – the extent  of its “co-pollutant benefits” – is an especially important issue for communities experiencing the highest pollution levels, communities that are disproportionately of-color and low-income.  Hence, the Clean Power Plan presents an opportunity for the federal government and the states to further environmental justice.  So, how does the Plan measure up? And how should the states maximize the opportunity to achieve environmental justice?

In The Clean Power Plan: Issues to Watch,  I wrote a short essay identifying and explaining a number of environmental justice issues raised by the proposal. The final Clean Power Plan’s preamble recognizes the importance of this issue, devoting a major section to “Community and Environmental Justice Considerations.”  EPA has also created a Clean Power Plan Community Page devoted to addressing the impacts of the rule on overburdened communities. 

A first key issue is the degree to which the plan achieves large aggregate reductions in co-pollutants, a function of the plan’s stringency.  A second key issue concerns classic environmental justice: the degree to which the plan distributes reductions where they are most needed and provides vulnerable communities with meaningful participatory opportunities.  A third key issue is the degree to which low-income and disadvantaged communities avoid the costs and reap the benefits from a clean energy transition. In this post, I’ll take a look at the first of these issues, and tackle the other two and draw some conclusions in subsequent posts tomorrow and Monday.

Full text

Utility Air Regulatory Group v. EPA: Little Impact on EPA Regulation of Greenhouse Gases

In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs).  As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources.  Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations. 

Full text

Controlling Power Plants through Clean Air Act § 111(d): Achieving Co-Pollutant Benefits

Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants.  Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs. 

The key to maximizing co-pollutant benefits will be shifting away from coal-fired power, the energy source that emits the highest levels of both GHGs and co-pollutants, and encouraging a more widespread shift from fossil fuels to no-carbon alternatives like consumer energy efficiency and renewable energy.  Ultimately, notwithstanding environmental justice concerns about cap-and-trade programs, the most critical issue will be setting stringent targets that prompt change, not their particular regulatory forms.  EPA’s Clean Power Plan has laid the groundwork for a transformative and stringent approach by establishing a system-wide approach to reducing power sector emissions, but it remains to be seen whether the agency has established stringent enough targets to achieve § 111(d)’s full potential to reduce both GHG and co-pollutant emissions.  (This blog is based upon a longer article entitled: “Controlling Power Plants, The Co-Pollutant Implications of EPA’s Clean Air Act § 111(d) Options for Greenhouse Gases,” 32 Virginia Envtl. L. J. 173 (2014).)

EPA’s Clean Power Plan

Pursuant to CAA § 111(d), EPA identified the “best system of emission reduction … adequately demonstrated” (BSER) for reducing power plant emissions.  Importantly, EPA determined that a system-wide approach, that takes advantage of both “inside the fence” options at power plants and “outside the fence” options, like renewable energy and consumer energy efficiency, constitutes BSER.  EPA assessed each state’s capacity to achieve reductions through available measures and set interim and final “carbon intensity” targets for each state to achieve.  States will then be required to develop state-specific plans that demonstrate how they will achieve the EPA targets.  Although EPA defined each state’s target by identifying a range of available measures, EPA did not directly require each state to take the measures used to define its target.  Instead, EPA gave each state the flexibility to achieve its target through whatever combination of mechanisms it chooses.

Full text

EPA’s New Source Proposal: The “Category” Question

On September 20, 2013 the EPA proposed new source performance standards for greenhouse gas emissions for new power plants.  Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire.  The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon.  The agency’s proposal provides clear parameters for future investments that set the nation on a more sustainable energy path.

This essay focuses on a critical difference between the September 2013 proposal and the earlier April 2012 proposal: how EPA has categorized electricity-generating units (EGUs).  In this essay, I first explain the standard setting process, and then explain EPA’s decision to combine coal and natural gas facilities in its April 2012 proposal and its retreat from that approach in the September 2013 proposal.  I then discuss the legal and policy implications of that shift.  Although the change in categories did not make much difference in the standards set, it did shift the likely areas of legal controversy, and marks a shift in the agency’s posture in shaping utilities’ energy choices.

Full text

GHG Trading and Co-Pollutants: Expanding the Focus

I agree with David Owen’s recent blog post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities. He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots. Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.

I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels.  Even if a GHG trading program would not cause an industrial hotspot – would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.

I start by acknowledging Adelman’s valuable insights about industry’s relative role in air toxics pollution.  Because Adelman’s concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry’s absolute and relative contribution to air toxics pollution. He defines a countywide industrial hotspot by industry’s absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million. He defines a census tract industrial hotspot where industry’s absolute contribution to cancer risk exceeds 20 per million and industry’s relative contribution is at least 30% of total air toxics emissions. Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics. Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions. But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.)

Full text

Environmental Justice and GHG Cap-and-Trade: It's More than a Complaint

California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution.

While the complaint reflects real concerns about the distributional impact of a GHG cap-and-trade program on associated co-pollutants, it’s important to keep the complaint in perspective.  Neither it, nor previous lawsuits, present the multi-faceted set of environmental justice arguments on GHG cap-and-trade. An earlier suit challenged the sufficiency of the state agency’s alternatives analysis under California’s environmental review law, and this claim raises potential disparate impacts under Title VI. The legal claims reflect available causes of action, and should not be taken as the full measure of the groups’ opposition to cap-and-trade.

For example, California environmental justice groups mistrust the basic effectiveness of cap-and-trade given a history of problems in RECLAIM, a southern California criteria pollutant trading program, weaknesses in the ETS, Europe’s GHG trading program, and the current “slack cap” in the northeastern states’ RGGI program. Another concern is that cap-and-trade programs lack the participatory features of traditional permitting processes.  The greater administrative efficiency and flexibility that industry celebrates cut off the slow, individualized, public-hearing process that allows local communities to participate (however weakly) in the emissions decisions of the facilities in their midst. Thus, it would be a mistake to attempt to discern the complete “environmental justice” position on cap-and-trade solely from the causes of action articulated in the lawsuits.

Full text

Applying the Clean Air Act to Greenhouse Gases: What Does It Mean for Traditional Pollutants?

EPA’s March 27 release of a proposed rule to control greenhouse gas (GHG) emissions from new fossil-fuel power plants has reignited the long-standing debate over whether the Clean Air Act is an appropriate mechanism for controlling industrial sources. Congressional bills to repeal EPA’s CAA authority have been repeatedly (though unsuccessfully) introduced. Many environmentalists, while welcoming EPA’s initiative in the absence of any alternative, have suggested that new federal climate legislation would be preferable to applying the CAA.

In a recently published article, Climate Change, the Clean Air Act, and Industrial Pollution, published in a UCLA Journal of Environmental Law and Policy symposium on the Clean Air Act and GHG regulation, I take up a slice of the complex debate about the value of the CAA.  I explore how using the Clean Air Act to reduce GHGs from stationary sources, including industrial and fossil-fuel electrical generating facilities, would affect many other pollutants, termed co-pollutants. Though co-pollutant impacts are only one of many relevant factors, the inquiry helps shed light on the benefits and drawbacks of the Clean Air Act as a climate policy mechanism, both on its own terms and in comparison with a frequently proposed alternative – a cap-and-trade program. The article reveals that there are no easy answers, and contributes to a more nuanced understanding of the CAA in particular and climate policy choices more generally.

An initial question demands an answer: if we’re talking about GHG controls, why should we care about their impacts on other pollutants? Ultimately, addressing climate change will require fundamental transformations in our energy and industrial infrastructure, changes with widespread environmental, economic, political, and social implications. Climate policies premised on a vision that integrates those implications, co-pollutant implications among them, will provide greater benefits and fewer drawbacks than a narrow focus on GHG reductions alone. Given the strong connection between GHGs and their co-pollutants, climate policies are likely to have significant co-pollutant consequences that could, in some instances, impact our assessment of alternative climate policies.  In the energy sector, for example, continued reliance on coal combined with carbon capture and sequestration would substantially increase co-pollutant emissions, while increased energy efficiency or renewable energy would reduce co-pollutant emissions.

Full text

Greenhouse Gas Standards for New Power Plants: Glass Half-Full and Half-Empty

With congressional action on climate change at a standstill, EPA’s new source performance standards (NSPSs) for greenhouse gases (GHGs) from new power plants should be applauded.  As required by the Clean Air Act, the agency is doggedly moving forward to establish emission standards for GHGs, air pollutants that unquestionably endanger human health and welfare. EPA deserves praise for setting a strong standard and proposing it notwithstanding political heat. The glass is half-full.

While attention is properly focused on what EPA has accomplished, it is important not to lose sight of what could be better. One concern is the standard’s flexibility: it lets new power plants (presumably coal-fired) violate the standard now and catch up in the future (presumably through the installation of carbon capture and storage (CCS)). In the somewhat unlikely event that utilities take advantage of that flexibility, it could give coal-fired power continued and environmentally damaging new life. A second, and more fundamental concern, is EPA’s silence on existing power plants. Notwithstanding Clean Air Act requirements, the agency has indicated that it has “no plans” to establish emission guidelines on existing power plants, the largest single source of GHG emissions in the United States. The glass is half-empty. I hope the glass will fill once the next election is over.

The Glass is Half-Full

EPA’s proposed standard for new power plants sends a strong message that future investments in fossil fuels must take carbon emissions into account.  The standard, which must reflect the “best system of emissions reduction” for the industrial category in question, is premised on the emissions achieved by a natural gas combined cycle power plant. It is noteworthy that EPA has created a general category for power plants that holds them all to the highest standard achievable. Had EPA set separate NSPSs for coal-, natural gas-, and oil-fired power plants, then each type of plant would have been required to reduce emissions only to the extent readily achievable in that category, rather than requiring all plants to achieve the highest standard possible for fossil-fuel power plants in general. In other words, coal-fired power plants, which generally emit about twice the level of GHGs per unit of energy produced, would have been allowed to emit at a higher level than more efficient natural gas plants.

Full text