Nicky Sheats
INTRODUCTION
The Clean Power Plan rule is the U.S. Environmental Protection Agency’s (“EPA”) regulatory method of reducing the nation’s carbon dioxide emissions and, by doing so, of fighting climate change.1 There was very little in the original Clean Power Plan proposal that addressed environmental justice (“EJ”)2 using section 111(d) of the Clean Air Act3 as authorization; it instead featured averaging carbon dioxide emissions rates4 and facilitated emissions trading.5 The EJ advocacy community responded to the Clean Power Plan’s failure to address equity by propos- ing a number of ways that EJ could be incorporated into the proposed rule.6 The three primary recommendations were: 1) mandated emissions reductions for EJ communities, i.e., communities of color and low-income communities; 2) prioritized use of energy efficiency and renewable energy in EJ communities; and 3) mandatory EJ analyses included in state plans developed pursuant to the Clean Power Plan that demonstrated the implementation of the first two recommendations and determined the distributive impacts of a state plan on EJ communities within the state.7 There were other important EJ recommendations such as the recommendation that states should not be able to use carbon trading to fulfill their obligations under the Clean Power Plan.8 However, the above three suggestions were also usually core recommendations.
The final version of the rule does provide what might best be characterized as an EJ “foothold” by requiring that states interact with EJ communities during development of their state plans9 and the inclu- sion of an optional incentive program for the use of energy efficiency in low-income neighborhoods.10 However, the Clean Power Plan still pro- vides no mandatory substantive protections for EJ communities and does not attempt to incentivize emissions reductions for any particular communities, including EJ neighborhoods…
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