Vulnerable Communities and the CPP

Posted on September 8, 2015 by Anjali Patel

UPDATED 02.21.2017 Webinar materials are available here.  

The final Clean Power Plan and the proposed Federal Implementation Plan/Model Trading Rules (Proposed Federal Plan) refer often to vulnerable, overburdened, and low-income communities. For example, the CPP requires states to “describe their engagement with their stakeholders, including their most vulnerable communities” as part of their plan submittals. And as part of its early-mover “Clean Energy Incentive Program” (CEIP), the EPA plans to reward early emission allowance and emission rate credits to demand-side energy efficiency investments that are implemented in low-income communities.

These terms are not defined in the regulatory text, so who is EPA including in these phrases? In the CPP, EPA states that

[it] analyzed the communities in closest proximity to power plants and found that they include a higher percentage of communities of color and low-income communities than national averages. . . .We refer to these communities generally as “vulnerable” or “overburdened,” to denote those communities least resilient to the impacts of climate change and central to environmental justice considerations.

In the Proposed Federal Plan, EPA’s description is broader:

There are many rural power plants that are located near small communities with high percentages of low-income populations and lower percentages of communities of color. In urban areas, nearby communities tend to be both low-income communities and communities of color. In light of this difference between rural and urban communities proximate to power plants and in order to adequately capture both the low-income and minority aspects central to [environmental justice] considerations, we use the terms “vulnerable” or “overburdened” when referring to these communities. Our intent is for these terms to be understood in an expansive sense, in order to capture the full scope of communities, including indigenous communities most often located in rural areas.

For those interested in learning more about how to engage communities (vulnerable, overburdened, low-income or otherwise) in the CPP implementation process or if you are a community representative seeking ways to engage your community in the process, EPA offers a Clean Power Plan Community Page with resources related to the CPP and Proposed Federal Plan.

Tomorrow, September 9, from 1:00-2:30 PM ET EPA will be holding a Webinar for “Community Leaders and Non-Traditional Stakeholders.”  Information about logging into the webinar is available here, and EPA states that it will later make the webinar materials available on the Clean Power Plan Community Page.

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EPA Says No Basis for Allowing “Premature Attack” on CPP

Posted on September 8, 2015 by Jessica Bell

At the end of August (per court order), EPA responded to the group of states seeking a stay of the Clean Power Plan from the D.C. Circuit. Pointing to the court’s recent decision in Murray Energy Corp., EPA argues that the court should dismiss the petitions because of timing. Even if judicial review was appropriate at this stage, EPA argues that the petitioners have not made a showing of irreparable harm to justify their requested relief. EPA states that although Federal Register publication will occur soon (specifically, “within a period of less than two months”), the CPP does not have imminent deadlines, and there will be a “full and fair opportunity for judicial review” upon publication.

Several environmental groups, including Natural Resources Defense Council, Environmental Defense Fund, and Sierra Club, filed a motion to intervene in support of EPA.

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Litigation Flashback: Overview of Prior Challenges to the CPP

Posted on September 3, 2015 by Jessica Bell

The D.C. Circuit heard oral argument in April in Murray Energy Corp. v. EPA and West Virginia v. EPA, challenging the proposed Clean Power Plan filed well in advance of the release of the final rule. The focus of these challenges were several often-cited potential vulnerabilities with EPA’s proposal. First, petitioners cited a language discrepancy in a 1990 amendment to the Clean Air Act that could affect EPA’s ability to regulate an emission source under Section 111(d) if that source is already regulated under Section 112. Second, petitioners claimed that the Clean Power Plan’s building blocks are largely aimed at activities outside the fence of power plants, and thus, the argument goes, outside of EPA’s 111(d) authority. Third, petitioners alleged that before EPA can regulate a category of sources under Section 111(d), EPA must regulate new sources in that category under Section 111(b). With the two rules moving forward almost in tandem—and the Section 111(b) rule likely to be subject to its own legal challenges—the ability to comply with this requirement is murky.

In June 2015, the court denied the petition on the grounds that the rule was not final.  Murray Energy Corp. v. EPA, 788 F.3d 330 (D.C. Cir. 2015). 

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Mapping Comments on the Clean Power Plan

Posted on September 1, 2015 by Jessica Bell

EPA received millions of comments on the proposed Clean Power Plan.  While we are still waiting for the release of the agency’s Response to Comments document, there are several tools to help you sift through the comments.

The Bipartisan Policy Center’s interactive map shows which state and federal officials submitted comments on the proposal.  It also can help you keep track of who signed on to joint comments.  This map displays comments by state, plus other info such as the state’s CO2 emissions rate history and generation mix.

Another state-by-state analysis is available from the Center for Effective Public Management at Brookings.  This analysis compiles comments from each state’s environmental agency and compares each state’s position on five common objections to the Clean Power Plan: it is unfair to early actors, it threatens grid reliability, it is unattainable given the current timeline, it is illegal, and it should be abandoned rather than finalized. In May 2015, Brookings released this report showing whether states came down on each issue (displayed in figures along with the party membership of each state’s governor).

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Congressional Research Service Summarizes CPP Highlights

Posted on August 27, 2015 by Jessica Bell

The Congressional Research Service (CRS) released its CPP summary on August 14, entitled EPA’s Clean Power Plan: Highlights of the Final Rule. This document provides an overview of some of the key components of the final rule, including differences from the proposal and a summary of EPA’s methodology. CRS also includes a helpful appendix that includes the proposed and final 2012 rate baseline and 2030 emission rate targets for each state, so readers can see how a particular state was affected by the changes.

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