NOTE—[NAME OF TRIBE] recommends that you begin your Tribe’s comment letter with
introductory remarks regarding the signatory’s position with the Tribe and include somewhere
in the letter a description of the Tribe’s physical environment and any particular concerns the
Tribe has with respect to this proposed rule. The more individualized the letter, the greater its
potential impact. Feel free to add you own arguments, objections, or support for various aspects
of the proposal. Comments are due January 21st, 2016. You can submit comments via email to Aand-R-Docket@epa.gov and include docket ID No. EPA-HQ-OAR-2015-0199 in the subject line
of the message.
January 21, 2016
U.S. Environmental Protection Agency
Attention Docket ID No. EPA-HQ-OAR-2015-0199
Subject:
Proposed Rule for Federal Plan Requirements for Greenhouse Gas
Emissions from Electric Utility Generating Units Constructed on or Before January 8,
2014; Model Trading Rules; Amendments to Framework Regulations
Introduction
The [NAME OF TRIBE] is pleased to submit these comments regarding the U.S. Environmental
Protection Agency’s (EPA)’s proposed rule for Federal Plan Requirements for Greenhouse Gas
Emissions from Electric Utility Generating Units Constructed on or before January 8, 2014;
Model Training Rules; Amendments to Framework Regulations, 80 Fed. Reg. 64966 (October
23, 2015) (Proposed Rule).
The [NAME OF TRIBE] is a member-based organization with nearly 100 principal member
Tribes. The organization’s mission is to advance air quality management policies and programs,
consistent with the needs, interests, and unique legal status of Indian Tribes. As such, the
[NAME OF TRIBE] uses its resources to support the efforts of all federally recognized Tribes in
protecting and improving the air quality within their respective jurisdictions. Although the
organization always seeks to represent consensus perspectives on any given issue, it is important
to note that the views expressed by the [NAME OF TRIBE] may not be agreed upon by all
Tribes. Further, it is also important that EPA understands interactions with the organization do
not substitute for government-to-government consultation, which can only be achieved through
direct communication between the federal government and Indian Tribes.
The [NAME OF TRIBE] approves generally of the Proposed Rule. The Proposed Rule will help
reduce carbon dioxide (CO2) emissions from existing electric generating units (EGUs) that have
gone uncontrolled for a very long time and contributed significantly to climate change. As a
complement to the [NAME OF TRIBE]’s general approval of the Proposed Rule, the [NAME
OF TRIBE] provides its comments and recommendation regarding the Clean Energy Incentive
Program, the use of nuclear power as renewable energy, and vulnerable and overburdened
communities. However, the [NAME OF TRIBE] prefaces its comments and recommendations
by advising EPA about what climate change means to Indian Tribes.
Indian Tribes and Climate Change
General
EGUs are the single largest source of CO2 pollution in our nation, emitting approximately 2.3
billion tons annually which comprises 40% of the carbon pollution emitted in the U.S.1 CO2
pollution impacts human health and the environment in a number of ways. The impacts vary
regionally and seasonally and may include longer, more intense and more frequent heat waves;
more intense precipitation events and storm surges; and less precipitation and more prolonged
drought. The negative health effects associated with climate change are especially damaging for
vulnerable populations including the elderly, young children, and those individuals already in
poor health.
Indian Tribes are not immune from the effects of climate change. Like the rest of the nation, its
populations are suffering from the health effects of climate change. Further, Tribes are seeing
the effects of climate change through increased storm surges, erosion, and flooding; prolonged
droughts never seen in modern times; and increased fires and insect pest outbreaks in their
forests. These are just a few snapshots of what is happening on and around the lands of this
nation’s 567 federally recognized Tribes.
Indian Tribes are also affected much differently than the rest of the nation as their cultures are
integrated into the ecosystems of North America; and many Tribal economies are heavily
dependent on the use of fish, wildlife, and native plants. Even where Tribal economies are
integrated into the national economy, Tribal cultural identities continue to be deeply rooted in the
natural environment. As climate change disrupts biological communities, the survival of some
Tribes as distinct cultures may be at risk. The loss of traditional cultural practices, due to
climate-driven die-off or range shift of culturally significant plant and animal species, may prove
to be too much for some Tribal cultures to withstand on top of other external pressures that they
face.
Climate-driven disruption of biological communities is also having a considerable effect on the
treaty rights of Indian Tribes. Many such treaties preserve hunting, fishing, and gathering rights
for Tribes on their lands and in the usual and accustomed areas. Some Tribes are finding that the
animals and/or plants on which they depend for their cultural practices and identity have either
migrated to lands not under their control or have disappeared altogether. How does one begin to
value this type of loss for a Tribe? Further, CO2 emitted today can remain in the atmosphere up
to 100 years, meaning that the full impacts of these emissions on Tribes and their culture may not
be seen until many years into the future.
See “EDF Welcomes First National Carbon Pollution Standards for Power Plants,” Environmental Defense Fund
(September 30, 2013), at http://www.edf.org/media/edf-welcomes-first-national-carbon-pollution-standards-powerplants (last visited on December 31, 2015).
1
Regional
In May 2014, the National Tribal Air Association released the Status of Tribal Air Report2 that
highlights regional impacts from climate change:
Alaska: There is coastal erosion; melting permafrost threatens civil infrastructure in remote
villages as well as food security as underground food cellars thaw; and Alaska Native Villages
are unique because they face firsthand the effects of climate change, which has already resulted
in the relocation of several villages away from eroding coastlines. A 2003 U.S. General
Accountability Office study identified more than 200 Alaska Native Villages affected to some
degree by flooding and erosion and 31 villages facing imminent threats that are compelling them
to consider permanent relocation. The U.S. Army Corps of Engineers’ March 2009 Alaska
Baseline Erosion Assessment identified many villages threatened by erosion, but did not assess
flooding impacts. At least 12 of the 31 threatened villages have decided to relocate—in part or
entirely—or to explore relocation options (GAO, 2009).
Northwest: Changes in hydrology and water chemistry impact fisheries resources and shellfish
(ocean acidification); and storm surges threaten coastal areas and Tribal lands along the coasts,
which may result in the possible relocation of Indian Tribes.
Southwest: Increased aridity threatens vegetation that is critical for stabilizing sediments which
can lead to greater more severe and frequent dust storms and dune mobilization. Higher
temperatures and increased droughts will lead to more intense forest fires and reduced grazing
potential.
Plains: There are spreads of pests that previously could not survive cooler climates, potential
increases in weed species due to more carbon dioxide in the atmosphere, higher temperatures,
and changes in precipitation and decreases in soil moisture and water availability. The region’s
main water supply, the Ogallala Aquifer, is also threatened. Without alternative resources and
better water management practices, projected temperature increases, more frequent droughts, and
higher rates of evaporation are likely to further stress the water supply.
Great Lakes: Heat waves are becoming more frequent, cold periods are becoming rarer, and
snow and ice are arriving later in the fall and melting earlier in the spring. Ticks and mosquitoes
will survive in greater numbers as winters become milder and will increase the risks of spreading
diseases such as Lyme disease and West Nile virus.
Gulf Coast: Projected sea level rise, increased hurricane intensity, and associated storm surges
may lead to further erosion, flooding, and property damage in the Southeast.
Northeast: Projected increases in heavy precipitation and likely sea level rise may lead to more
frequent, damaging floods in this region. Large portions of the region may become unsuitable
2
http://www7.nau.edu/itep/main/ntaa/docs/resources/NTAA_2015StatusTribalAirReport.pdf
for growing some fruit varieties and some crops, such as cranberries, apples, blueberries, grain,
and soybeans. Similarly, by the end of the century, only a small portion of the Northeast may be
suitable for maple syrup production. In contrast, the region could see a longer growing season
for a number of other crops, which would provide potential benefits to society.
[NAME OF TRIBE] recognizes that the Proposed Rule is a positive action towards reducing
uncontrolled CO2 emissions in order to protect Indian Tribes and their cultures from climate
change impacts, not only for current generations, but also for future generations to come.
Clean Energy Incentive Program
Under the mass-based trading rule approach,3 the Proposed Rule provides for a Clean Energy
Incentive Program (CEIP) which awards early action emission rate credits (ERCs), on behalf of
each participating state, renewable energy and demand-side energy efficiency projects
implemented in low-income communities that “are located in or benefit the state for which the
EPA is implementing a federal plan.”4 (emphasis added). There are vast opportunities for
renewable energy and energy efficiency projects in Indian Country, but which are often hindered
by various barriers including those caused by the federal government.
The [NAME OF TRIBE] recommends that EPA work closely with other federal agencies to
remove any federal administrative barriers that would unnecessarily prevent or delay
development and implementation of renewable energy or energy efficiency projects in Indian
Country intended to meet the Proposed Rule’s requirement that such projects generate zeroemitting megawatt-hours or reduce end-use energy demand during 2020 and/or 2021.5 Further,
the [NAME OF TRIBE] recommends that EPA establish a Tribal set-aside of ERCs under the
CEIP for renewable energy and energy efficiency projects in Indian Country with eligibility
criteria that addresses the practicalities of operating such projects in Indian Country. In the
alternative, [NAME OF TRIBE] recommends that the CEIP include a preference for renewable
energy and energy efficiency projects in Indian Country, understanding that such projects have
faced and shall continue to face the aforementioned barriers regarding development and
implementation. Finally, the [NAME OF TRIBE] incorporates by reference and supports the
recommendations made by NTAA in a December 14, 2015 comment letter submitted to EPA
regarding the CEIP.6
Nuclear Power as Renewable Energy
3
Proposed Rule at 64971. EPA would create a state emissions budget equal to the total tons of CO 2 allowed to be
emitted by affected EGUs in each state, consistent with the mass goals established in the greenhouse gas emission
guidelines (EGs) for existing fossil fuel-fired EGUs under the Clean Air Act.
4
Proposed Rule at 65025.
5
Id.
6
“Comments submitted by Bill Thompson, Chairman, Executive Committee, National Tribal Air Association
(NTAA)” (asking that EPA provide ways for renewable sources on Indian lands receive the necessary qualifications
necessary to participate in the CEIP program and that federal plans provide a means for members of all Tribes to
enjoy the benefits of CEIP participation). http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-20150734-0127 (last visited December 27, 2015).
Under the rate-based approach,7 the Proposed Rule would award ERCs for renewable energy
generation by new nuclear units and capacity uprates at existing nuclear units.8 The [NAME OF
TRIBE] does not make a specific recommendation regarding this type of ERC use, but offers
caution based on nuclear waste transportation and storage issues identified in an earlier [NAME
OF TRIBE] comment letter submitted to EPA regarding the Clean Power Plan.9 The [NAME OF
TRIBE] recommends that EPA prioritizes awarding ERCs for activities that will result in
increased energy efficiency and conservation rather than increasing the use of existing nuclear
units. It is not certain to [NAME OF TRIBE] if nuclear energy could clearly be defined as
renewable energy generation due to the impacts from mining and milling of uranium ore as well
as transportation and storage of nuclear waste. Many Tribes continue to be impacted by legacy
sites from the nuclear cycle.
Vulnerable and Overburdened Communities
Proximity Analysis
EPA provides that it shall engage vulnerable and overburdened communities regarding the
Proposed Rule through national and regional webinars, and by providing such communities with
relevant resources to gain the benefits of the rule;10 and shall provide trainings and resources to
these communities to assist them during implementation of the Proposed Rule.11 EPA fails to
define “vulnerable” or “overburdened,” although such terms appear to be used in relation to lowincome and minority populations in close proximity to EGUs.12 If this is the case, the [NAME
OF TRIBE] finds that the Proposed Rule excludes most Indian Tribes from consideration as
vulnerable and/or overburdened communities based on a proximity analysis (Proximity Analysis)
conducted for the rule.
The Proximity Analysis is intended to help insure that vulnerable communities are not
disproportionately impacted by the Proposed Rule.13 The Proximity Analysis summarizes
demographic information for communities located within a 3-mile radius of each EGU covered
under the Clean Power Plan.14 Such information includes population numbers around each EGU
and percentages for the following categories for these populations: minority, low-income,
linguistically isolated, less than a high school education, under age 5, and over age 64.15
Conspicuously absent from these categories is a breakdown of each community’s ethnicity. This
prevents Indian Tribes and the [NAME OF TRIBE] from being able to determine how many
7
Proposed Rule at 64970. Affected EGUs must meet an emission standard, derived from the EGs, expressed at a
rate of pounds of CO2 per megawatt hour.
8
Id. at 64994.
9
“Comments submitted by Bill Thompson, Chairman, Executive Committee, National Tribal Air Association
([NAME OF TRIBE])” (communicating concerns about the transportation and storage of nuclear waste on or near
Tribal lands). http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2013-0602-20766 (last visited on
December 27, 2015).
10
Proposed Rule at 65050.
11
Id. at 65051.
12
Id. at 65049.
13
EJ Screening Report for the Clean Power Plan: Federal Plan Requirements (July 30, 2015) at
http://www3.epa.gov/airquality/cppcommunity/ejscreenfp.pdf (last visited on December 31, 2015).
14
.Id.
15
Id.
Tribal communities or members, if any, are located within the 3-mile radius of these EGUs
although it is likely that most such communities or members reside well beyond this radius.
EPA has determined that the Proximity Analysis and its 3-mile radius around each EGU is a
starting point for understanding how changes in an EGU’s emissions may affect the air quality
experienced by some communities already experiencing environmental burdens.16 The [NAME
OF TRIBE] strongly disagrees with this determination. The Proposed Rule indicates that the
impacts of EGU emissions can be felt many miles away,17 many such emissions whose
trajectories will naturally cross over or near Tribal lands. Limiting the Proximity Analysis to a
3-mile radius around each EGU limits, in turn, the number of vulnerable and overburdened
communities with which EPA is obligated to conduct outreach and to which EPA must provide
resources in relation to the Proposed Rule. EPA has a trust responsibility to Indian Tribes by
which it is held responsible for the protection of Tribal lands and resources. The current
Proximity Analysis doesn’t honor this trust responsibility.
The [NAME OF TRIBE] recommends that EPA revise the Proximity Analysis, based on
government-to-government consultation with Indian Tribes, that provides for a 50-mile radius
around EGUs based on commonly used existing emission inventory permitting and modeling
requirements as well as Treatment as a State permitting reviews; and a percentage breakdown of
each ethnicity located around each EGU covered under the analysis. The [NAME OF TRIBE]
finds that this will greatly expand the area around each EGU for which EPA shall be required to
insure that vulnerable communities, including Tribal communities and members, are not
disproportionately impacted by the Proposed Rule.
Impact of Proposed Rule Implementation
The Proposed Rule provides that EPA shall “conduct an assessment of whether and where
emission increases may result from plan implementation and mitigate adverse impacts, if any, in
overburdened communities.”18 The [NAME OF TRIBE] finds this to be an overly broad
statement. The Proposed Rule indicates that, through the assessment, EPA will be able to
determine whether implementation of the Proposed Rule and other air quality rules are reducing
emissions and improving air quality in all areas, or whether localized air quality impacts will
need to be addressed under the Clean Power Plan or other Clean Air Act (CAA) authorities.19
However, EPA fails to provide a framework for how this assessment shall be conducted. Based
on the [NAME OF TRIBE]’s aforementioned concerns with the Proximity Analysis, it is suspect
about any assessment that EPA would conduct. Further, the Proposed Rule fails to provide any
specifics about how EPA would mitigate adverse impacts to vulnerable communities, including
consideration of the impact from shifting credit allowances of specific EGU emissions to another
EGU as a result of ERC market trading. The Proposed Rule only indicates the conduits (e.g.,
Clean Power Plan, other CAA authorities) through which it would address such impacts.
16
Proposed Rule at 65049.
Id.
18
Id.
19
Id. at 65051.
17
The [NAME OF TRIBE] recommends that, before conducting an assessment of the Proposed
Rule’s implementation and identifying any adverse impacts to overburdened communities, EPA
conduct government-to-government consultation with Indian Tribes to design an assessment
process that addresses their needs and concerns. Further, the [NAME OF TRIBE] asks EPA to
provide it with examples of actions that it has taken to mitigate adverse impacts to overburdened
communities caused by implementation of EPA air quality rules so that the [NAME OF TRIBE]
can determine whether such actions would be appropriate for Tribal communities with respect to
the Proposed Rule.
Conclusion
In summary, the [NAME OF TRIBE] is pleased to provide the aforementioned comments and
recommendations concerning the Proposed Rule.
NOTE—if appropriate, provide a staff contact whom EPA may contact if it has questions.