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Aug. 13, 2015 by Alice Kaswan

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 …

June 25, 2014 by Alice Kaswan
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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.

The …

June 19, 2014 by Alice Kaswan
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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 …

Sept. 23, 2013 by Alice Kaswan
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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 …

Sept. 9, 2013 by Alice Kaswan
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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 …

June 13, 2012 by Alice Kaswan
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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 …

April 24, 2012 by Alice Kaswan
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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 …

March 28, 2012 by Alice Kaswan
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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 …

Jan. 19, 2012 by Alice Kaswan
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The Clean Air Act’s potential to address the nation’s greenhouse gas emissions is slowly being unveiled.  EPA’s expected announcement of highly-anticipated new source performance standards for power plants by the end of January will reveal whether the agency has the political will to use its existing authority to re-shape the United States’ dependence upon high-carbon power.  Section 111 of the Clean Air Act is a potentially potent tool. It arguably allows EPA to re-direct new investment away from heavily-polluting coal-fired power and toward less polluting alternatives. It also gives the agency the authority to address on-going emissions from existing power plants.  Weaning the nation from its dependence on coal-fired power is essential to a new energy future.  While EPA may fear the political storm generated by the prospect of change, it has the opportunity to begin a positive transformation to a more sustainable energy …

April 21, 2011 by Alice Kaswan
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The Supreme Court arguments in American Electric Power Company v. Connecticut on Tuesday raised profound issues about the respective role of the courts and administrative agencies in controlling greenhouse gas emissions from stationary sources, emissions that remain uncontrolled notwithstanding their significant climate impacts. As my CPR colleague Doug Kysar has noted, at times the Court appeared reluctant to embrace industry’s political question and prudential standing arguments, arguments that would undermine the courts’ traditional common law powers. If the Court rejects these jurisdictional arguments, the central issue would be whether EPA’s GHG regulatory actions under the Clean Air Act have “displaced” the federal common law of interstate nuisance.

If displacement is the critical issue, did the Court ask the right questions? For example, Justices Kagan, Ginsburg, and Breyer addressed the issue of institutional competence.  Directly and indirectly, their comments suggested that the plaintiff states were asking …

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