Clean Power Plan Extensions Have a Catch: Outreach

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By Andrew Childers and Rachel Leven

Aug. 10 — States seeking additional time to develop compliance strategies for the Environmental Protection Agency's Clean Power Plan must first show that they have engaged with minority and at-risk populations.

The Clean Power Plan (RIN 2060-AR33), issued Aug. 3, establishes three criteria for states seeking an additional two years to develop their compliance plans, and among them is demonstrating outreach to environmental justice communities.

Lisa Garcia, vice president of litigation for healthy communities at Earthjustice, said the EPA's placement of the engagement requirement early on in the process constitutes a safeguard.

“They had to figure out mechanisms of accountability,” Garcia, the EPA's former senior adviser to the administrator for environmental justice, told Bloomberg BNA. “This is one way to really ensure that states don’t forget about the [vulnerable] people and the importance of input.”

As part of the final rule, states will have the option of submitting either their final compliance plans or an initial submission to the EPA by Sept. 6, 2016. States that choose to make that initial submission will have until Sept. 6, 2018, to complete their plans. The criteria for receiving that extension include identifying approaches states are considering for reducing carbon dioxide emissions from power plants; an explanation for why states need additional time to comply; and public outreach, including with affected and at-risk communities. Those communities could include minorities and low-income populations as well as labor unions and workers whose jobs could be affected, particularly in coal-dependent states, the EPA said.

“The EPA recommends that as part of their meaningful engagement with vulnerable communities, states work with communities to ensure that they have a clear understanding of the benefits and any potential adverse impacts that a state plan might have on their overburdened communities and that there is a clear process for states to respond to input from communities,” the agency said in the rule.

The EPA has made environmental justice a larger focus of its final Clean Power Plan, which would limit carbon dioxide emissions from existing power plants, than it had in its proposed rule.

States Considering New Environmental Justice Focus 

States are still assessing how the new outreach component compares to their existing efforts, but Clint Woods, executive director of the Association of Air Pollution Control Agencies, said the final rule makes it more of a priority.

“Our states are looking at both the requirements and the degree to which you conduct the meaningful analysis when you’re just seeking an extension,” Woods told Bloomberg BNA Aug. 10.

To assist the states, the EPA has used its EJSCREEN, an online tool that uses environmental and demographic data to identify at-risk communities, to develop a pair of reports looking at environmental justice considerations under the Clean Power Plan and the model federal implementation plan.

The reports—also known as proximity analyses—specifically identify characteristics such as income and minority status of communities that live within a three-mile radius of each power plant that is affected by the Clean Power Plan and are intended to offer a baseline regarding how a plant's changes in air emissions will affect air quality and which communities stand to be affected.

From Recommendation to Requirement

The EPA has previously recommended that states address environmental justice considerations in rules such as the air quality standards for ozone, Bill Becker, executive director of the National Association of Clean Air Agencies, said. But the latest requirement shows that it will likely play an even greater role in future regulations, he said.

“I think they want a signal that this is on states’ radar and the states are interested in addressing issues in the future as part of this program,” Becker told Bloomberg BNA Aug. 10. “It’s a serious problem and it’s one that most states have generally have been focusing on more and more.”

Jalonne White-Newsome, a federal policy analyst for WE ACT for Environmental Justice, told Bloomberg BNA that she was encouraged by the fact that the EPA included a meaningful engagement requirement in the rule, because states can't ignore vulnerable community engagement any more.

By placing the meaningful engagement requirement so early in the process—where states must apply for an extension—the EPA is helping to ensure that the engagement will be “consistent and continual throughout the entire process,” White-Newsome said.

The word extension always sends up a “red flag,” White-Newsome said, because it means states can take more time to not act. However, including an engagement requirement early on shows that the EPA had listened to justice advocates, she said.

‘The Biggest Achievement.'

Alejandra Nunez, staff attorney at the Sierra Club, called the addition of that requirement to the Clean Power Plan “the biggest achievement from the environmental justice perspective.”

“The final rule shows the EPA really listened to communities and the organizations that represent them,” she told reporters Aug. 10.

But White-Newsome and Garcia both said that putting the engagement requirement in, and putting it in early, is only just the beginning. Now, White-Newsome said, advocates must “hold the states' feet to the fire to make sure they use that requirement in the best way.”

That means not only that states, for example, hold public meetings but those meetings must be in locations and at times that vulnerable communities can actually attend, Garcia said. And the meetings must include information that is useful and digestible to communities, White-Newsome said.

“The real work begins now,” Garcia said.

To contact the reporters on this story: Andrew Childers in Washington at achilders@bna.com and Rachel Leven in Washington at rleven@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com