The ACE Rule: Justice Delayed is Justice Denied

A composite image of a climate action protest and a smokestack.

By Maggie St. Jean
July 25, 2019

Earlier this month, President Trump gave a speech intended to celebrate his environmental leadership. “From day one, my administration has made it a top priority to ensure that America has among the very cleanest of air and cleanest water on the planet,” Trump touted. Andrew Wheeler, the administrator of the U.S. Environmental Protection Agency (EPA), claimed “today we have the cleanest air on record. Pollution is on the decline, and our focus is to accelerate its decline, particularly in the most at-risk communities.” 

However, according to data released by the EPA, some of the most dangerous air pollutants — namely ozone and particulate matter — are actually more prevalent now than before Trump took office. This has led to an increase in “unhealthy air days,” which pose a threat to vulnerable populations like children, the elderly, and people with lung conditions. The adverse health effects associated with exposure to air pollution are well documented, with links to respiratory diseases, increased cancer rates, and a decrease in life expectancy.

Our air may be cleaner in some ways, but a recent study highlights the racial disparity between those who cause air pollution and those who breathe it. Remaining pollution is disproportionately caused by whites and disproportionately inhaled by black and Hispanic communities. As climate change barrels into our homes, water, and air, communities of color will bear the health and economic burdens of our failure to address greenhouse gas emissions. 

Historically, climate change has been categorized primarily as an environmental issue, focusing on greenhouse gas emissions, rising sea levels, and increasing temperatures. But the narrative has largely skimmed over a critical discussion of people and how certain communities are affected differently by climate change. Climate justice efforts seek to change this narrative and recognize climate change as a social justice issue, while providing a forum for traditionally marginalized communities to advocate on their own behalf. 

The Clean Power Plan (CPP) was an attempt by the federal government to do just that. When the EPA released the CPP in 2015, there was a sense of excitement, as this was the first rule to limit carbon pollution from existing power plants while also addressing environmental justice

The EPA conducted a proximity analysis using its companion screening tool, EJSCREEN, and found that significantly more minority and low-income communities live near power plants and, consequently, face disproportionately higher health effects from accompanying pollution. As a result, the CPP encouraged states to conduct environmental justice analyses to evaluate how their plans to reduce carbon emissions would impact low-income and minority communities. The CPP also required states to demonstrate how they meaningfully engaged and ensured participation of members of those communities. The EPA would then assess any localized emissions increases that might result from the state plans and work with states to mitigate adverse impacts on low-income communities, communities of color, and indigenous populations. 

Additionally, under the CPP, the EPA offered specific incentives for the benefit of low-income communities for carbon reduction efforts, such as giving sources credit for energy efficiency programs in low-income communities. If implemented, the CPP would have avoided 3,600 premature deaths, 1,700 heart attacks, 90,000 asthma attacks and 300,000 missed days of school or work due to respiratory symptoms. 

But the EPA under the Trump administration has effectively turned its back on the climate crisis, and consequently, on climate justice. The EPA’s replacement of the CPP with the Affordable Clean Energy (ACE) rule abandons a policy framework for limiting carbon emissions and other pollutants from coal-fired power plants, while relinquishing any commitment to critical environmental justice issues. The ACE rule directs states to set standards of performance for each plant, essentially allowing plants to decide the amount of pollution to emit. 

Recent analysis shows that the ACE rule may lead to an increase in carbon emissions at 28% of power plants by 2030. Moreover, the CPP would have provided significant reductions in co-pollutants, like ozone and particulate matter. These reductions would have provided disproportionate benefits to disadvantaged communities, as coal-fired power plants are concentrated in those communities.

The EPA’s own data suggests that the ACE rule may lead to as many as 1,400 more pollution-related premature deaths per year — lives that are more than likely going to come from communities of color and low-income communities. These communities will now also suffer the hazardous consequences of climate change that will come from the lost carbon reductions associated with replacing the CPP. Effectively, all of the CPP’s initiatives to address climate justice issues have been ripped away.

In April 2018, a coalition of 19 state attorneys general led by New York Attorney General Letitia James filed comments opposing the proposed rule to repeal the CPP. The comments specifically discussed the health consequences of climate change and how the repeal disproportionately affects low-income communities who already experience elevated health issues. In October 2018, New York led a coalition of 19 state attorneys general representing 147 million people in sending a comment letter to the EPA calling on the administration to drop the ACE rule. That letter also discussed how the repeal of the CPP would increase the burden of pollution that communities of color and low-income communities have to bear. Following the finalization of the ACE rule on June 19, Attorney General James led a coalition of state attorneys general around the country in promising to sue the Trump administration over ACE, or what they call the “Dirty Power” rule. Several other states have made comments denouncing the administration’s repeal of the CPP and have issued statements in response to the new ACE rule. 

The federal government has yet to fully and effectively address race-based disparities when it comes to environmental issues and vulnerabilities. The CPP was an attempt to address these challenges and inequities. While the ACE rule is certainly a step backwards, state attorneys general criticizing the ACE rule on climate justice grounds provide a glimmer of hope in restoring a federal commitment to environmental justice issues. 


Maggie St. Jean is a Legal Intern at the State Energy & Environmental Impact Center. She is a rising second-year law student at the Elisabeth Haub School of Law at Pace University.