Environmental Justice in the Clean Power Plan

Power plants are the largest source of carbon dioxide in the United States, the pollution that is throwing our climate into chaos.  Power plants also emit conventional and toxic air pollutants that contribute to respiratory and heart diseases, as well as premature death.  The Clean Power Plan will lead to significant climate and public health benefits for all, including minority, low-income, and indigenous communities.

In accordance with Executive Order 12898, which requires EPA to make environmental justice part of its mission, the final rule includes a host of provisions to ensure that the rule benefits communities that have long borne the brunt of fossil fuel pollution--minority,  low-income, and indigenous communities.  It provides tools to help ensure that these communities do not experience disproportionate pollution and health impacts from fossil fuel-fired power plants, and it creates avenues to ensure our most vulnerable communities share in the public health and economic benefits expected from the Clean Power Plan.

EPA conducted unprecedented outreach before and after issuing the proposed rule in June of 2014, engaging environmental justice, faith-based, public health, and community organizations.  Sierra Club worked with environmental justice partner organizations and submitted comprehensivecomments that echoed communities’ asks and concerns.  It’s clear from the final rule that EPA listened, considered, and integrated environmental justice considerations in the Clean Power Plan in accordance with its recently finalized “Guidance on Considering Environmental Justice During the Development of Regulatory Actions.”

A. Environmental Justice Considerations in the Final Rule

In the final rule, EPA did three things:

1. Proximity Analysis: EPA conducted a proximity analysis using its newest screening tool EJSCREEN, which found that a higher percentage of minority and low-income communities live near power plants when compared to the national averages.  The rule also encourages states to conduct environmental justice analyses of their own as they develop their state implementation plans (SIPs), and to evaluate the SIPs’ actual impacts on low-income and minority communities during implementation.  Finally, after states have written their plans and begin implementing them, EPA will assess any localized emission increases that result and will work with states to mitigate any adverse impacts on communities.

2. Meaningful Participation Requirement: The final rule requires states to ensure meaningful participation from communities in the SIP development process.  The initial deadline for states to submit their plans is September 6, 2016, and any states seeking an extension beyond that deadline must still submit initial plans by September of next year that demonstrate how they have engaged low-income and minority communities, and they must also explain how they intend to ensure their continued involvement as they develop their final plans.

3. Distribution of Benefits: Under the final rule, energy efficiency continues to be a major option for meeting the carbon reduction targets, and EPA has offered specific incentives for the benefit of low-income communities.  Under the Clean Energy Incentive Program (CEIP), EPA proposed to give sources double credit for energy efficiency projects in low-income communities.  EPA has also committed to work with other federal agencies to provide information on programs to help low-income communities gain access to renewable energy and energy efficiency (for example, the newly-created National Community Solar Partnership, a multi-agency initiative to increase access to solar for low- and medium-income consumers), and has offered examples of state programs that other states can use as models.

B. State Plans Must Address Communities’ Concerns

EPA has taken a big step forward in integrating environmental justice in rulemaking by opening the door to community participation in the Clean Power Plan SIP development process.  But this is just the beginning of a long road.  As Kim Wasserman of Little Village Environmental Justice Organization in Chicago recently pointed out, communities will need to fully express their concerns and, in partnership with the environmental community, must work vigorously with state agencies developing the SIPs to ensure the plans avoid any disproportionate impacts and actually benefit vulnerable communities.

State plans will have to address the following issues, among others:

1. Increased Use of Fossil Fuel-Fired Plants: Communities are concerned about the potential for air pollution hotspots associated with the increased use of coal plants and natural gas plants that could take place during the implementation of the rule.  EPA’s proximity analysis is the first step to identify power plants that may raise pollution concerns in the communities located in close proximity to those plants.  States should model emissions of conventional air pollutants (e.g. sulfur dioxide, nitrogen oxides) from those plants as part of their planning process, and those results should be combined with geographic information systems (GIS) software to identify the populations affected by the pollution from those plants beyond the studied radius.

Sierra Club will work hard to ensure that states replace retiring coal plants with clean, renewable energy and energy efficiency.  The final Clean Power Plan actually provides an opportunity for significantly greater development of renewable energy than the proposal anticipated, both during the compliance period and potentially before compliance begins, through the proposed CEIP.

2. Cumulative Impacts: Community and environmental justice groups have long advocated for EPA to consider cumulative impacts of other pollution sources, which the Clean Power Plan does not address.  Many fossil fuel-fired plants in the United States are located in the same areas where other large industrial facilities are sited.  Basic environmental justice screening and mapping tools, such as EPA’s EJView, allow users to identify these environmental hazards for further study.  Many of those facilities contribute to nonattainment of other Clean Air Act standards.  States should model these facilities together with the coal plants and natural gas plants of concern to communities, so that appropriate emission standards are set under those Clean Air Act rules and the Clean Power Plan.  Communities should push states to take a multi-pollutant approach to plan development, as EPA has suggested in the final rule.

3. Cap-and-Trade: Of great concern to environmental justice communities is that EPA has allowed cap-and-trade programs (including “trading-ready” programs) for compliance.  Community participation and the environmental justice analyses will also be critical to ensure that dirty power plants that cause disproportionate impacts on communities are not allowed to trade without restriction.  There are several ways to integrate environmental justice considerations in the design of trading programs.

First, states (or regions) must enact stringent caps, which will remove incentives to increase the use of fossil fuel-fired plants.

Second, as EPA has noted in its “Tools of the Trade” guidance, states could delineate those zones with unacceptable pollution concentrations (hotspots) and forbid or severely restrict the flow of allowances into those zones; in other words, power plants with the potential to cause hotspots should not be allowed to purchase allowances that permit them to continue polluting.

Third, if allowances are auctioned, states should use a portion of those revenues to finance investments in renewable energy and demand-side energy efficiency for those communities most affected by fossil fuel pollution.

4. Waste-burning: Waste-burning for electricity production is another big worry for communities because, in several states in the country, it qualifies as a renewable source.  In recent weeks, the Partnership for Policy Integrity released an analysis that showed that the proposed rule treated all waste burning--including fossil-fuel derived materials such as plastic and tires--as carbon neutral.

The Global Alliance for Incinerator Alternatives warned that burning waste-derived fuel is not only worse for climate than coal, but it also creates disproportionate impacts by exposing communities to mercury and other toxic pollution.  The final rule still allows the use of waste, but only the biogenic portion of municipal solid waste will be eligible for compliance.

The rule also acknowledges that these sources are not carbon-neutral, and therefore, state plans seeking to include biogenic waste must consider their characteristics and climate benefits.  EPA will review the appropriateness and basis for states’ determination to include these measures, and not all of them will be approvable.  EPA is currently taking comment on these issues in its proposed Federal Implementation Plan (FIP).  Sierra Club will comment on this issue and will advocate for EPA to take communities’ concerns into account.

5. Environmental Racism: Many environmental justice groups asked EPA to ensure compliance with Title VI of the Civil Rights Act by states that receive funding from the agency to develop their SIPs.  In the final rule, EPA has encouraged anyone who believes that any of the federal non-discrimination laws has been violated by any recipient of EPA funds to file an administrative complaint with EPA’s Office of Civil Rights (OCR).

There is, however, much work to do to improve EPA’s administrative complaint process.  In August, the Center for Public Integrity released an analysis that found that, in processing nearly 300 environmental discrimination complaints filed in the last twenty years, EPA’s OCR has never made a formal finding of civil rights violations.  The federal government, however, is taking steps in the right direction.  In July, the U.S. Commission on Civil Rights announced that its 2016 enforcement report will focus on civil rights violations relating to environmental justice.  Sierra Club will continue to work with its partners to advocate for modifications to the administrative complaint investigation and resolution process in a manner that ensures effective enforcement of Title VI complaints.

In conclusion, the environmental justice provisions of the Clean Power Plan are a tremendous step forward for EPA, local communities, and the nation, but they are only as strong as the state plans that will now be developed.  Sierra Club and our many allies will be working hard in the coming years to ensure the implementation of the rule benefits communities most affected by fossil fuel pollution. Our success will depend on the involvement and dedication of community leaders and advocates from coast to coast.  Join us!