//  3/29/17  //  Commentary

Today, an African-American child is more than twice as likely to be hospitalized from asthma; a Latino child is 40 percent more likely to die from asthma.  So if you care about low-income, minority communities, start protecting the air that they breathe, and stop trying to rob them of their health care.” 

-President Barack Obama, Remarks in Announcing the Clean Power Plan (Aug. 3, 2015)

In the decades to come, the Trump Administration’s decision to dismantle the Clean Power Plan may be remembered as uniquely catastrophic.  The Plan, of course, is a key plank in President Obama’s climate-change strategy.  Undoing it will likely result in America’s failure to meet its goals under the Paris Climate Accords—perhaps torpedoing the fragile international effort to combat climate change.  People are rightly worried for our future.

Not enough attention has been paid, however, to the devastating immediate consequences the Plan’s rescission will have on vulnerable Americans.  Simply put: people will suffer, and some will die.   And those who do will disproportionately be people of color, and people of lower socioeconomic status.

A bit of background.  The Clean Power Plan requires[1] each state to reduce greenhouse-gas emissions from power plants by a specified amount.  Though the Plan is agnostic as to how states achieve their goals, it contemplates that states will pursue one of three strategies.  First, power generation might be shifted away from fossil fuels, and towards renewable forms of energy like wind and solar.  Second, electrical utilities might operate dirtier coal plants less frequently, and operate their cleaner gas plants more frequently.  Third, existing coal-fired power plants might be incentivized to burn fuel more efficiently, such that less coal must be burned to produce the same amount of energy.

Though these strategies are geared towards combatting climate change, they also promise significant localized health benefits.  That is because all three of the strategies contemplated by the Plan largely boil down to “burn less coal.”  In addition to being a major source of greenhouse gases, coal is densely packed with “conventional pollutants” such as nitrogen dioxide, sulfur dioxide, and particulate matter.   When inhaled, those pollutants have severe impacts on human health—causing asthma, heart disease, respiratory illness, and premature death.  And unlike greenhouse gases, “conventional pollutants” tend to remain in the air immediately surrounding a pollution source.  Reducing conventional-pollutant coal-plant emissions—which the Clean Power Plan promises to do—thus significantly improves health outcomes in the immediate vicinity of the power plant.

Crucially, the communities surrounding coal-fired power plants tend to be much poorer, and have a higher concentration of non-white residents, than the national average.  That means that low-income individuals and minorities are currently shouldering a disproportionate share of the health costs associated with energy production.  The results can be—and often are—fatal.  To take but one example: One major study concluded that 7,000 lives per year could be saved if the average non-white American was exposed to the same levels of nitrogen dioxide as the average white American.[2] (Nitrogen dioxide is a key driver of heart disease).

By reducing the amount of conventional pollutants emitted into low-income and minority neighborhoods, the Clean Power Plan promised to ease these racial and economic disparities. Indeed, when issuing the Plan, the Obama EPA expressly took stock of environmental inequity.  The final Plan notes that an important benefit of the Plan would be “a reduction in the adverse health impacts of air pollution on . . . low-income communities and communities of color.”  The Plan, moreover, contains several provisions geared towards ensuring that its benefits reached vulnerable communities—including provisions that incentivize energy-efficiency projects, like home-based solar panels, in low-income neighborhoods. 

All of this, of course, is now in severe jeopardy in light of Trump’s latest Executive Order.  In seeking to dismantle the Clean Power Plan, Donald Trump is not just declaring war on climate change.  He is seeking to undo a regulatory edifice that would alleviate health hazards—and indeed, save lives—in poor, non-white communities.  

Yesterday, perhaps rightly, will be primarily remembered as the day President Trump launched a full-frontal assault on climate-change regulation.  It should also, however, be remembered as the day America took a major step backwards on environmental justice.

[1] Because the Trump Administration has not yet actually repealed the Clean Power Plan, I refer to in present tense.

[2] It should be noted that proximity to power plants is not the only reason low-income individuals and minorities are disproportionately exposed to “conventional pollutants.”  Other factors may include proximity to highways, or proximity to other industrial facilities.  

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care