The 'Affordable Clean Energy' Rule and Environmental Justice

by Alice Kaswan

August 29, 2018

For disadvantaged communities, the so-called Affordable Clean Energy Rule (ACE) falls far short of the protections and opportunities included in the Clean Power Plan, the Obama administration rule that the Trump EPA is now attempting to repeal and replace.

One of the Clean Power Plan's (CPP) essential features was its recognition that the electricity sector operates as an interconnected system. Because of its system-wide approach, the CPP could achieve significant reductions of greenhouse gases and other pollutants by encouraging utilities to shift from pollution-intensive coal to less-polluting alternatives, including natural gas and renewables. In contrast, the ACE rule focuses narrowly on coal-fired power plants, considering only facility-specific "heat-rate improvements," thus sacrificing a host of other ways to both conserve energy and prevent pollution. The proposed rule also fails to prompt states to engage in the more comprehensive and longer-term planning that is necessary to achieve significant reductions and benefit communities that are disproportionately burdened by air pollution and the effects of climate change.

The ACE's unnecessarily modest climate ambitions are its first environmental justice casualty. According to EPA, the proposal is projected to result in 50 to 60 million more tons of annual carbon dioxide emissions than the CPP. (See Table 6, page 142 of the proposal) Climate change is likely to hit poor and disadvantaged communities the hardest: Communities in low-lying areas are at greater risk of flooding; the disadvantaged communities disproportionately located near hazardous waste sites are at greater risk of contamination from flooding or fire; low-income residents are less able to have and afford air conditioning; the laborers who work outside in the heat are often poor – and the list goes on.

The second environmental justice casualty – and one with a wide range of consequences – is the lack of comprehensive, integrated energy and environmental planning that the CPP had sparked. While states will still have to complete "state implementation plans" to comply with the ACE, the scope is drastically curtailed: states will simply have to show what controls they will require for their coal-fired power plants.

The CPP, in contrast, set in motion state and regional planning discussions that brought together state environmental and energy officials and encouraged a fundamental reckoning with each state's energy future and its associated environmental implications. The CPP thus overcame historic institutional silos and allowed states to work through the many consequences of their energy system choices.

Several features of the CPP's broader planning requirement were likely to create at least the opportunity for environmental justice benefits. From a process standpoint, the CPP required that states reach out to disadvantaged communities and provide opportunities for meaningful engagement in the state implementation planning process. (80 Fed. Reg. 64848) And, although the CPP did not dictate how states were to achieve the required carbon reductions, it encouraged them to take a multi-pollutant approach to planning. (80 Fed. Reg. 64918) Under the CPP, states could consider how their greenhouse-gas-reduction strategies, like reducing reliance on the most polluting facilities and increasing reliance on less polluting options, could simultaneously and efficiently achieve reductions in public-health threatening pollution. The ACE contains no such provisions.

Other features of the ACE could also lead to less pollution control than the CPP. Ironically, by requiring coal-fired power plants to invest in heat-rate improvements that increase the efficiency of these decades-old power plants, the ACE could encourage greater use of coal-fired power plants that utilities would otherwise have retired or curtailed. Coal-fired power not only has double the carbon intensity of natural gas, it emits far more conventional pollutants per unit of energy than other electricity sources.

In contrast, although the CPP allowed upgrades to coal-fired power plants, it also encouraged utilities to shift reliance to natural gas and renewables, much less-polluting alternatives. EPA anticipates that the ACE rule will lead to about a 7 to 9 percent increase in coal production compared with what would have occurred under the CPP. (Table 8, page 144 of the proposal).

In addition, the proposal will make it much easier for facilities to increase their emissions of conventional pollutants without having to install the normally applicable pollution controls. Under current regulations, if an existing facility upgrades in a way that will increase actual emissions, it must install the more rigorous pollution controls required for new sources of pollution – it must complete the "new source review" process. Thus, under current regulations, if the upgrades required by the ACE would lead to increased emissions of traditional pollutants, the facilities would have to install controls on those pollutants. However, the ACE proposes to change the way such increases are measured and, as a result, would permit increases in actual emissions without requiring pollution controls. In contrast to the CPP, the ACE proposal would let old, uncontrolled coal-fired power plants continue to forego modern pollution controls on the conventional pollutants that jeopardize public health.

The proposal's pollution projections bear out these expected consequences. EPA projects that sulfur dioxide emissions will be 45,000 to 53,000 short tons per year greater than they would have been under the CPP. (Table 6, page 142 of the proposal) Nitrogen oxide emissions are projected to be 32,000 to 39,000 short tons per year greater than they would have been under the CPP. Put another way, by 2030, the CPP would have reduced sulfur dioxide emissions by 60,000 short tons per year and nitrogen oxides by 47,000 tons per year. In contrast, the ACE is projected to reduce sulfur dioxide emissions by only 7,000 to 15,000 tons per year and nitrogen oxide emissions by only 8,000 to 15,000 tons per year.

Those pollutants – sulfur dioxide, nitrogen oxides, and particulate matter – cause a variety of health problems, including premature death. By EPA's calculations, by 2030, the relatively higher levels of particulate matter and ozone from the ACE will lead to hundreds of additional premature deaths in comparison with the CPP. Relative to the CPP, EPA also predicts hundreds of additional non-fatal heart attacks and hospital admissions, and many thousands of additional health impacts, including asthma attacks and a range of other respiratory symptoms. Communities will face hundreds of thousands of additional restricted activity days, and tens of thousands of lost work and school days. (Regulatory Impact Analysis, Table 4-6, page 4-33)

Of course, the Clean Air Act and state air programs are supposed to be addressing these conventional pollutants. To date, however, despite substantial improvement, many areas do not meet public health standards. Government programs that successfully address the key roots of the problem – like reliance on heavily polluting coal-fired power – are more likely to resolve these persistent greenhouse gas and pollution challenges than single-pollutant tinkering.

Lastly, unlike the CPP, the ACE does not direct resources and benefits to disadvantaged communities. The CPP's Clean Energy Incentive Program not only included specific incentives to encourage renewables and energy efficiency, it specifically targeted energy efficiency funds to low-income communities. (80 Fed. Reg. 64829-32) The program thus recognized that low-income Americans may not have the funds to invest in energy efficiency, and that energy efficiency investments, by reducing energy usage, can buffer potential increases in electricity costs.

EPA claims that the ACE is better for low-income consumers than the CPP because it keeps electricity costs more affordable. To be sure, the cost of electricity is an important social justice issue. But the CPP allowed considerable flexibility for low-cost measures that kept projected costs low while accomplishing greater reductions than the ACE. EPA projects that, by 2030, retail electricity prices would not be substantially different from what they would have been under the CPP: it predicts rates would be the same or up to 0.2 percent less than under the CPP. And if costs were to increase, they could be addressed without compromising climate progress. Programs to invest in energy efficiency and renewables in low-income neighborhoods, as proposed by the CPP and in effect in many states, as well as direct state assistance, could lessen the impact of potentially higher prices on vulnerable populations. 

Ultimately, EPA's proposal fails to grapple with what matters to disadvantaged communities. Energy justice implicates not only the monthly bill, but access to new technologies, relief from pollution and its health consequences, and participation in a cleaner energy economy. The narrowly focused ACE fails to facilitate a clean energy transition that could benefit all Americans.

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Also from Alice Kaswan

Alice Kaswan is a Professor at the University of San Francisco School of Law, and a member of the board of directors of the Center for Progressive Reform.

Recommended Resources:
Climate Change
Time for Real Action on Global Warming

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