EPA Chief Seems Clueless on EJ Advocates’ Critique of Proposed Greenhouse Gas Power Plant Rule

By GGU Prof. Alan Ramo

A report of the October 1st meeting of the US Environmental Protection Agency’s National Environmental Justice Advisory Committee in Environment and Energy Publishing’s website caught my attention for two reasons.  First, in the October 2nd, 2014, article written by E&E reporter Robin Bravender, “Top brass on defense as environmental justice advocates slam climate rule”, EPA Chief Gina McCarthy reportedly acted “surprised” when a NEJAC member criticized the new EPA greenhouse gas power plant rule.  McCarthy apparently was not aware that her Environmental Justice office widely advertised a July 21, 2014, webinar entitled, “What’s at Stake:  Environmental Justice and the EPA’s Clean Power Plan.”  That webinar, sponsored by WEACT, featured a number of environmental justice advocates, including Brent Newell of the Center on Race, Poverty & the Environment, who roundly criticized aspects of the proposal.  (For webinar, go to http://www.weact.org/ejcleanair/resources/index.html and scroll down to “webinar.”)

Even more alarming, McCarthy seems somewhat baffled about environmental justice and how it may apply to the rule.   She noted “that carbon doesn’t have localized impacts”, though Stanford Professor Mark Jacobson’s studies have documented those impacts in areas with ozone potential.  More important, it’s the co-benefits of carbon control that is the main issue for EJ activists.  With coal plants, for example, carbon emissions are usually accompanied by toxic chemicals that do have local impacts.  Controls or process changes or alternatives sources of energy that will reduce carbon emissions at coal plants will also reduce their toxic chemicals.  This issue has been noted many times, most recently in my article this year on California’s cap-and-trade offset program and USF Professor Alice Kaswan’s article,  CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE: LESSONS FROM THE CALIFORNIA LAWSUITS, at 5 San Diego J. Climate & Energy L. 1 (2014),

EPA in its proposed rule recognizes that the use of non-power plant offsets, such as in California, can result in additional emissions at power plants in a state, as well as in regional multi-state programs where emissions reductions are traded between power plants in different states.  See our  June 4, 2014, blog on the initial proposal.  Thus depending upon how the final rule is written, there could be disparate impacts depending upon whether so-called “non-sector” offsets are allowed and how trades between states actually work.

McCarthy apparently stated at the meeting “this is not a rule that can be tailored to local communities.  It is a state planning process by law that needs to be done.”  However, state planning processes under any law if receiving federal agency funding, which almost all states do, must do their planning processes consistent with federal civil rights laws.  Thus when President Clinton issued his still-in-effect Executive Order on environmental justice, an accompanying Presidential memorandum stated, “In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin.”

Title VI protects communities on the local level as EPA surely knows.  EPA’s Title VI regulations addresses state processes causing discriminatory impacts to individuals and discriminatory local facility siting.  40 CFR 7.35 (b-c).  If a state is intending to meet EPA’s rule by discriminatory siting of natural gas power plants to replace its coal plants, that would be a violation of EPA’s Title VI regulations and should not be allowed under its power plant rule.

EPA claims to be fully implementing environmental justice in its programs.  “Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation.”  Someone needs to tell McCarthy that applies to the greenhouse gas power plant rule too.

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