The Need For A Clean New Plan

By Vincent Jasso

The Obama administration created and developed the Clean Power Plan (CPP) to combat energy pollution. The policy was instrumental as it “set the first-ever limits on carbon pollution from U.S. power plants.”[1] In our current state, the energy sector accounts for “26.9 percent of 2018 greenhouse gas emissions” with 63 percent of electricity being generated from burning fossil fuels.[2] The CPP was set to resolve this major challenge.

However, the Trump administration replaced the CPP with the Affordable Clean Energy rule, suggesting, “the ACE rule will barely reduce carbon emissions more than a scenario with no EPA policy whatsoever.”[3] This issue has compounded the negative effects minority communities have historically faced as a result of energy pollution. There is a need for a new Clean Power Plan that can be effective at protecting minority communities from the injustices incurred by the energy sector.

Minority populations are more at risk of being exposed to energy pollution when compared to Caucasians. In a 2019 study, it was found that Hispanics were 40% more exposed to coal electric utilities than Caucasians.[4] The Obama administration added protections for minorities in the CPP, but the Trump administration repealed and replaced the plan. The basis for repeal was that “the Clean Power Plan violated the Clean Air Act by regulation ‘outside the fence line’ of individual power plant sources that are subject to the Clean Air Act.”[5] In Massachusetts v. EPA, the Supreme Court ruled that greenhouse gases “covered ‘any’ air pollutant” under the Clean Air Act.[6] In Justice Steven’s opinion, the EPA’s “judgement must [be] related to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[7] Meaning that the EPA should have provided a proper justification pertaining to the health of citizens for the repeal of the CPP. Yet, the EPA focused on a technocratic justification for the repeal.

It is not necessarily illegal for the EPA to regulate power plants. As Michigan v. EPA holds, “the Clean Air Act Amendments of 1990 subjected power plants to various regulatory requirements.”[8] Thus the anticipation was that “these requirements were expected to have the collateral effect of reducing power plants’ emissions of hazardous air pollutants”[9] The main takeaway of is stated that the EPA must account for the cost to regulate power plants. However, the Court further solidified that power plants were “subject to regulation on the same terms as ordinary major and area sources.”[10] The CPP set forth an expectation regarding the cost of regulating power plants in which the EPA believed “that carbon capture and sequestration technology would be economically at scale in the foreseeable future.”[11]Therefore, the CPP accounted for the cost of the regulation applied to power plants.

There is a legal precedent to regulate power plant pollution. The CPP had a twofold impact of protecting minority communities and regulating over a quarter of total emissions. A new energy pollution plan should focus on “polluting power plants located in environmental justice communities.”[12] With the Obama-era foundation laid, the Biden administration should rebuild the walls of energy regulation by reinstating the CPP.

[1] What Is the Clean Power Plan?, NATIONAL RESOURCES DEFENSE COUNCIL (Sept. 29, 2017), www.nrdc.org/stories/how-clean-power-plan-works-and-why-it-matters.

[2] Sources of Greenhouse Gas Emissions, ENVIRONMENTAL PROTECTION AGENCY (Sept. 9, 2020), www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions.

[3] Dana Nuccitelli, The Trump EPA Strategy to Undo the Clean Power Plan, YALE CLIMATE CONNECTIONS (June 21, 2019), www.yaleclimateconnections.org/2019/06/the-trump-epa-strategy-to-undo-the-clean-power-plan/.

[4] Christopher W. Tessum ET AL., Inequity in Consumption of Goods and Services Adds to Racial–Ethnic Disparities in Air Pollution Exposure, 116 PNAS 6000, 6003 (March 11, 2019) (discusses the types of pollution exposure based on race).

[5] Steven Ferrey, A Legal “Jurisdictional Train Wreck,” 59 Santa Clara L. Rev. 1, 25 (2019) (discusses the regulatory repeal of the Clean Power Plan).

[6] Lyle Denniston, Analysis: Greenhouse Gases Case, SCOTUSBLOG (Oct. 16, 2013, 5:59 PM), www.scotusblog.com/2013/10/analysis-greenhouse-gases-case/.

[7] 549 U.S. 497, 30.

[8] Michigan v. EPA, 576 U.S. 743, 135 S. Ct 2699, 192 L. Ed. 2d 674, 2015 U.S. LEXIS 4256, 83 U.S.L.W. 4620, 80 ERC (BNA) 1577, 25 Fla. L. Weekly Fed. S 523. 674, 675, (2015).

[9] Id. at 748.

[10] Id. at 748.

[11] Jody Freeman, The Uncomfortable Convergence of Energy and Environmental Law, 41 Harv. Envtl. L. Rev. 399, 407-408 (2017) (explanation of the EPA rule for power plants).

[12] Nicky Sheats, Achieving Emissions Reductions For Environmental Justice Communities Through Climate Change Mitigation Policy, 41 Wm. & Mary Envtl. L. & Pol’y Rev. 377, 387 (2017) (recommends policy for environmental justice communities).