In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents,v.New York State Department of State et al., Appellants.BriefN.Y.October 19, 2016APL-2015-00152 Albany Co. Index No. 1535-13 Court of Appeals State of New York IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR POINT 2, LLC, AND ENTERGY NUCLEAR POINT 3, LLC, Petitioners-Respondents, -AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. BRIEF FOR THE AFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION AND NATIONAL BLACK CHAMBER OF COMMERCE AS AMICI CURIAE Renee B. Bea (N.Y. Bar No. 4411054) Adam S. Cashman (Pro Hac Vice to be Filed) Stephanie L. Cobau (Pro Hac Vice to be Filed) SINGER / BEA LLP 601 Montgomery Street, Suite 1950 San Francisco, California 94111 Telephone: (415) 500-6080 Facsimile: (415) 500-6080 rbea@singerbea.com Attorneys for the African American Environmentalist Association and National Black Chamber of Commerce Date Completed: June 8, 2016 STATE OF NEW YORK COURT OF APPEALS In the Matter of ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POINT 2, LLC, and ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents, -Against- The NEW YORK STATE DEPARTMENT OF STATE and CESAR A. PERALES, Secretary of the New York State Department of State, Respondents-Appellants. APL-2015-00152 Albany Co. Index No. 1535-13 BRIEF FOR THE AFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION AND NATIONAL BLACK CHAMBER OF COMMERCE AS AMICI CURIAE -i- TABLE OF CONTENTS CORPORATE DISCLOSURE ....................................................................................... 1 INTEREST OF AMICI CURIAE .................................................................................... 1 PRELIMINARY STATEMENT .................................................................................... 2 ARGUMENT .................................................................................................................. 3 I. CLOSING INDIAN POINT WOULD UNDERMINE ENVIRONMENTAL JUSTICE ........................................................................... 4 A. Closing the Indian Point Reactors Would Require Increased Production at Fossil Fuel-Driven Powerplants ................................................ 4 II. NEW YORK MUST CONSIDER THE ENVIRONMENTAL IMPACT ON URBAN MINORITY COMMUNITIES. ...................................... 8 III. RESIDENTS OF KINGS, QUEENS, AND BRONX COUNTIES WOULD SUFFER AN INCREASED INCIDENCE OF ASTHMA AND OTHER RELATED HEALTH ILLNESSES. .......................................... 12 CONCLUSION ............................................................................................................. 15 -ii- TABLE OF AUTHORITIES 03-E-0188: Renewable Portfolio Standard, N.Y. DEPARTMENT OF PUBLIC SERVICE (last visited May 12, 2016) [A–1] ......................................... 5 African American Environmentalist Association Homepage (last visited May 12, 2016), available at www.aaenvironment.com .......................... 3 Alina Das, The Asthma Crisis in Low-Income Communities of Color: Using the Law as a Tool for Promoting Public Health, 31 N.Y.U. REV. L. & SOC. CHANGE 2 (2007) [A–180] .......................................14 Aliyah Baruchin, For Minority Kids, No Room to Breathe, N.Y. TIMES, Aug. 8, 2007 [A–213] .............................................................................15 Asthma Facts (2nd Ed.), N.Y.C. Dep’t. of Health & Mental Hygiene, May 2003 [A–215] ..............................................................................15 Center for Urban Research, The Changing City at the Sweep of Your Mouse: Block by Block Demographic Changes Mapped Across New York, 2000 to 2010, UNIV. OF N.Y., 2011 [A–143] ........................10 Central Hudson Information on Transmission Projects in New York (last visited May 12, 2016) [A–70] .............................................................. 8 Charlotte Hussy et al., International Comparison of Fossil Power Efficiency and CO2 Intensity, ECOFYS, Sept. 5, 2014 [A–80] .............................. 9 Cheryl Katz, People in Poor Neighborhoods Breathe More Hazardous Particles, SCIENTIFIC AM., Nov. 1, 2012 [A–170] ...........................12 Christopher Russo, Indian Point Energy Center Retirement Analysis, ENERGY & ENV’T. PRACTICE OF CHARLES RIVER ASSOCS., Aug. 2, 2011 [A–28] .................................................... 6, 7, 8, 9, 11, 12 Comparison of Lifecycle Greenhouse Gas Emissions, WORLD NUCLEAR ASS’N., July 2011 [A–83] ..................................................................... 9 Dep’t. of Health, Table 2: Population, Land Area, and Population Density by County, New York State -2006, N.Y. State [A–169] ........................12 Description of Astoria (last visited May 12, 2016) [A–167] ..................................11 Description of Ravenswood Generating Station (last visited May 12, 2016) [A–168] ......................................................................................11 Energy-Related Carbon Dioxide Emissions at the State Level, 2000-2013, U.S. Energy Info. Admin., Oct. 26, 2015[A–85] ............................. 9 Erick Forno, et al., Asthma and Ethnic Minorities: Socioeconomic Status and Beyond, 9 CURR. OPIN. ALLERGY CLIN. IMMUNOL. 2 (2014) [A–209] .....................................................................15 -iii- Erin Crotty, CP-29 Environmental Justice & Permitting, N.Y. State Dep’t. of Envtl. Conservation, March 19, 2003 [A–89] ............................10 Governor Cuomo Launches $5 Billion Clean Energy Fund to Grow New York’s Clean Energy Economy, N.Y. STATE, Jan. 21, 2016 [A–5] ...................................................................................................... 5 Indian Point Nuclear Plant Boosts New York’s Economy $1.6 Billion/Yr., NUCLEAR ENERGY INSTITUTE, June 8, 2015 [A–49] .......................... 6 Information on Manufacturing (M3) Districts, N.Y.C. Planning (last visited May 12, 2016) [A–138] ..................................................... 10, 11, 12 Jared Anderson, Exclusive Interview: Current Status of Indian Point Nuclear Plant Relicensing, BREAKING ENERGY, April 23, 2015 [A–46] .................................................................................................... 6 Juliana Maantay, Industrial Zoning Changes in New York City: A Case Study of “Expulsive Zoning,” PLANNING J. MASS. I. TECH., Special issue: Planning for Environmental Justice (2002) [A–148] ............................................................................................ 11, 12 JULIE SZE, NOXIOUS NEW YORK: THE RACIAL POLITICS OF URBAN HEALTH AND ENVIRONMENTAL JUSTICE (MIT Press 2007) [A–95] ................................................................................................ 10, 15 Laura Donnelly, Air Pollution Stunting Children’s Lungs, Study Finds, TELEGRAPH, Oct. 25, 2015 [A–184] ........................................................14 LAWRIE MOTT ET AL., OUR CHILDREN AT RISK: THE FIVE WORST ENVIRONMENTAL THREATS TO THEIR HEALTH (Nat’l. Res. Def. Council 1997) [A–190] .......................................................................14 Letter from Mark R. Sudbey, Chairman of the Board and Chief Officer, U.S. Power Generating Corp., to Hon. Jaclyn Brilling, Secretary, N.Y. State Public Service Commission (Dec. 14, 2011) [A–179] .....................................................................................13 List of N.Y. Powerplants (last visited May 12, 2016) [A–157] ........................ 11, 12 Mark Berkman et al., New York Nuclear Power Plants’ Contribution to the State Economy, BRATTLE GROUP, Sept. 2015 [A–74] .......................................................................................................... 9 Mark Jacobson, Control of Fossil-Fuel Particulate Black Carbon and Organic Matter, Possibly the Most Effective Method of Slowing Global Warming, 107 J. GEOPHYSICAL RES. 19, 16–18 (2002) [A–175] ..........................................................................13 Mark Jacobson, Enhancement of Local Air Pollution by Urban CO2 Domes, 44 AM. ENVTL. SCI. & TECH. 7, 2497–2502 (2010) [A–208] ...............................................................................................................15 -iv- Molly Ginty, Asthma and Air Pollution, NAT’L. RES. DEF. COUNCIL, Dec. 31, 2015 [A–205] .......................................................................14 Molly Ginty, Climate Change is in the Air, NAT’L. RES. DEF. COUNCIL, Dec. 31, 2015 [A–187] .......................................................................14 N.Y. Demographics for Bronx, Queens, and Kings Counties, Census Reporter (last visited May 12, 2016) [A–94] .........................................10 N.Y.S.R.C. Reliability Rules (2010), Rule A-R1 [A–51] ......................................... 7 National Black Chamber of Commerce Homepage (last visited May 13, 2016), available at www.nationalbcc.org .............................................. 4 Net Generation: Indian Point 2 (last visited May 12, 2016) [A–23] ........................ 6 Net Generation: Indian Point 3 (last visited May 12, 2016) [A–24] ........................ 6 New York Energy Profile, U.S. Energy Info. Admin. (last visited May 12, 2016) [A–87] .............................................................................. 9 OFFICE OF AIR & RADIATION ET AL., U.S. ENVTL. PROTECTION AGENCY, EJ SCREENING REPORT FOR CLEAN POWER PLAN (July 2015) [A–18] ................................................................................................ 6 Patrick Kiger, Air Pollution Linked to Obesity, DISCOVERY NEWS, Feb. 23, 2016 [A–220] ............................................................................16 Post Staff Report, Indian Point: Still Safe, N.Y. POST, May 18, 2012 [A–25] .......................................................................................................... 6 Ramon Cruz, Air Pollution Hot Spots in Queens: Time for Solutions, ENVTL. DEF., Jan. 2007 [A–177] .......................................................13 Reducing Asthma Disparities, Nat. Heart, Lung & Blood Inst., Dec. 2012 [A–219] .............................................................................................16 Regional Greenhouse Gas Initiative Homepage (last visited May 12, 2016) available at www.rggi.org ........................................................... 5 SAMUEL FLEMING, ALTERNATIVES TO THE INDIAN POINT ENERGY CENTER FOR MEETING NEW YORK ELECTRICITY POWER NEEDS 155 (National Academies Press 2006) [A–58] ............................. 7 Sarah Ferriter, While Administration and Congress Balk on Kyoto, Many U.S. States Move Forward on Greenhouse Emission Efforts, CLIMATE INSTITUTE, (2003) [A–1] ........................................... 5 Scott DiSavino, New York Tells Con Ed to Prepare in Case Indian Point Shuts, REUTERS, Nov. 28, 2013 [A–27] ........................................... 6 Scott Waldman, NRG Explores a New Option for Keeping a Coal Plant Open, POLITICO N.Y., Oct. 28, 2015 [A–16] ..................................... 5 -v- Special Initiative for Rebuilding and Resiliency, City of N.Y., June 11, 2013 [A–54] ............................................................................................ 7 Stanton Glantz, Air Pollution as a Cause of Heart Disease, 39 J. AM. C. CARDIOL. 6 (2002) [A–203] ................................................................14 STEFFEN SCHLOMER ET AL., CLIMATE CHANGE 2014: MITIGATION OF CLIMATE CHANGE (Cambridge University Press 2014) [A–76] ........................... 9 Tatsushi Suwa, et al., Particulate Air Pollution Induces Progression of Atherosclerosis, 39 J. AM C. CARDIOL. 6 (2002) [A–200] .............................14 U.S. Energy-Related CO2 Emissions in Early 2012 Lowest Since 1992, U.S. Energy Info. Admin., Aug. 1, 2012 [A–79].............................. 9 Univ. of Wash., Asthma Linked to Depressive Disorders, Study Suggest, SCIENCE DAILY, Nov. 7, 2007 [A–222] ................................................16 Zoning by Area – Zoning Index Map, N.Y.C. Planning, Map Key No. 6A–6C, 16A, 16C–16D [A–139] ............................................ 10, 11, 12 - 1 - CORPORATE DISCLOSURE In compliance with Rule 500.1(f) of the Rules of Practice for the Court of Appeals of the State of New York, the African American Environmentalist Association (“AAEA”) and National Black Chamber of Commerce (“NBCC”) hereby disclose that they are nonprofit organizations organized under 26 U.S.C. § 501(c)(3). The AAEA is a subsidiary of the Center for Environment, Commerce and Energy. The NBCC does not have any corporate parents, subsidiaries, or affiliates. INTEREST OF AMICI CURIAE The AAEA1 was founded by Norris McDonald in 1985. It is one of the oldest African American-led environmental organizations in the country. Headquartered in Washington D.C., the AAEA has 12 chapters, including two located in Nigeria and Kenya. The AAEA has been a longtime advocate of environmental justice, including the reduction of air pollution and promotion of public health in low-income and minority communities. In recent years, the AAEA has engaged in a range of community outreach projects intended to educate the public regarding the prevalence of environmental hazards in minority communities. 1 African American Environmentalist Association Homepage (last visited May 12, 2016), available at www.aaenvironment.com. - 2 - The NBCC2 was co-founded in 1993 by Harry Alford, who presently serves as the organization’s President and Chief Executive Officer. The NBCC has approximately 151 active chapters in the United States and several affiliated, international chapters, including those in the Bahamas, Brazil, Columbia, France, Botswana, and Jamaica. The NBCC advocates for environmental progress that is guided by the adoption of new technologies such as nuclear power, which offers reduced carbon-based emissions without compromising energy affordability. PRELIMINARY STATEMENT The AAEA and NBCC submit this amici curiae brief because they are deeply concerned that the substantial reduction in energy production caused by any closure of the Indian Point 2 and Indian Point 3 nuclear power reactors would require less affordable, replacement energy to be generated by existing powerplants, which are largely fossil fuel-driven, and located in low-income and majority-minority communities. As production at these powerplants increases, the air quality around those plants—already of disproportionately poor quality—will further deteriorate, causing a likely increase in the incidences of respiratory illness in these communities. 2 National Black Chamber of Commerce Homepage (last visited May 13, 2016), available at www.nationalbcc.org. - 3 - ARGUMENT Over the past decade, New York has become a leader in energy efficiency and renewable energy development—a reputation that stems primarily from innovative programs such as the Regional Greenhouse Gas Initiative,3 and its moratorium on coal-fired powerplants and endorsement of nuclear power.4 Any closure of the Indian Point reactors would threaten New York’s policy of providing a just and sustainable energy delivery system to its citizens, and would likely result in increased emissions within the regions of the State that already house a disproportionate number of fossil fuel-driven powerplants. That increase would exacerbate air quality problems in the minority-majority neighborhoods that disproportionately surround these plants, causing an increase in respiratory ailments among those populations. 3 See Regional Greenhouse Gas Initiative Homepage (last visited May 12, 2016), available at www.rggi.org. The Regional Greenhouse Gas Initiative sought to “develop a strategy that [would] help the region lead the nation in the effort to fight global climate change.” In 2003, the New York State Public Service Commission set a goal that by 2013 at least 25% of the electricity purchased by New York will be generated from renewable energy sources. Sarah Ferriter, While Administration and Congress Balk on Kyoto, Many U.S. States Move Forward on Greenhouse Emission Efforts, CLIMATE INSTITUTE, (2003) [Appendix (“A”)–1]; see 03-E-0188: Renewable Portfolio Standard, N.Y. DEPARTMENT OF PUBLIC SERVICE (last visited May 12, 2016) [A–4]. 4 See Governor Cuomo Launches $5 Billion Clean Energy Fund to Grow New York’s Clean Energy Economy, N.Y. STATE, Jan. 21, 2016 [A–5]; Scott Waldman, NRG Explores a New Option for Keeping a Coal Plant Open, POLITICO N.Y., Oct. 28, 2015 [A–16]. - 4 - I. CLOSING INDIAN POINT WOULD UNDERMINE ENVIRONMENTAL JUSTICE Replacing the energy generated by Indian Point with power from existing or newly-constructed fossil fuel-driven plants—which is the most likely option if the Indian Point reactors are closed—would undermine environmental justice. Minority-majority communities are already disproportionately saddled with hazardous, industrial sites and exposed to levels of outdoor air pollution that exceed those experienced by other communities.5 They should not be forced to endure still greater burdens caused by the closure of the Indian Point reactors. A. Closing the Indian Point Reactors Would Require Increased Production at Fossil Fuel-Driven Powerplants The Indian Point reactors generate approximately 16.5 million MW annually,6 or about 12 percent of New York’s power.7 That is enough electricity to 5 See OFFICE OF AIR & RADIATION ET AL., U.S. ENVTL. PROTECTION AGENCY, EJ SCREENING REPORT FOR CLEAN POWER PLAN, 17–19 (July 2015) [A–18]. Data compiled by the United States Census indicates that 78% of African Americans live within 30 miles of a coal-fired powerplant, and the EPA has indicated that in New York, ethnic minorities make up a substantial portion of the population residing within three miles of powerplants. For example, ethnic minorities constitute 80 percent of the population living within three miles of the Astoria Energy Plant, which has one of the highest ozone concentrations in the State. Id. at 17. 6 Net Generation: Indian Point 2 (last visited May 12, 2016) [A–23]; Net Generation: Indian Point 3 (last visited May 12, 2016) [A–24]. 7 Post Staff Report, Indian Point: Still Safe, N.Y. POST, May 18, 2012 [A–25]; see also Scott DiSavino, New York Tells Con Ed to Prepare in Case Indian Point Shuts, REUTERS, Nov. 28, 2013 [A–27]; Christopher Russo, Indian Point Energy Center Retirement Analysis, ENERGY & ENV’T. PRACTICE OF CHARLES RIVER ASSOCS., Aug. 2, 2011, at 7–9 [A–29] [hereinafter, Retirement Report]. - 5 - power 2 million homes, and provides between 20 and 40 percent of the electricity consumed in New York City and Westchester County.8 If the Indian Point reactors were retired, the State would be required to find a replacement source for Indian Point’s energy generation capacity.9 That is because the statewide Loss of Load Expectation (“LOLE”)—a measure of how long, on average, the available generation capacity is likely to fall short of the load demand—is already close to the limit of 0.1 (meaning that the probability of the “loss of firm load due to system wide resource deficiencies can be no more than 1 day per 10 years”) set by the New York State Reliability Council (“Reliability Council”).10 Without Indian Point’s power generation, the LOLE indexes for southeastern New York would increase significantly11—in some areas, exceeding 100 times the maximum limit set by the Reliability Council.12 A consultant for New York Department of Environmental Protection has confirmed this projected energy shortfall.13 So too have prior studies conducted by the New York Independent System Operator, a state entity that coordinates generation and 8 Jared Anderson, Exclusive Interview: Current Status of Indian Point Nuclear Plant Relicensing, BREAKING ENERGY, April 23, 2015 [A–46]; Indian Point Nuclear Plant Boosts New York’s Economy $1.6 Billion/Yr., NUCLEAR ENERGY INSTITUTE, June 8, 2015 [A–49]. 9 See Retirement Report, supra note 7, at 9. 10 N.Y.S.R.C. Reliability Rules (2010), Rule A-R1 [A–51]; Special Initiative for Rebuilding and Resiliency, City of N.Y., June 11, 2013, at 112 [A–54]. 11 SAMUEL FLEMING, ALTERNATIVES TO THE INDIAN POINT ENERGY CENTER FOR MEETING NEW YORK ELECTRICITY POWER NEEDS 155 (National Academies Press 2006) [A–58] [hereinafter, ALTERNATIVES]; see Retirement Report, supra note 7, at 12–13. 12 ALTERNATIVES, supra note 11, at 155. 13 See Retirement Report, supra note 7, at 12–13. - 6 - transmission, which released reports in 2009 and 2010 concluding that without the power generated by Indian Point, the statewide index would fail to comply with the minimum reliability standard.14 That situation is untenable and cannot be addressed through conservation and increased transmission projects alone. With respect to conservation, although New York projects that it will accomplish 91 percent of its future energy conservation goals, it has historically achieved only 57 percent of its targets.15 Any plans to reduce consumption through conservation initiatives, however admirable, must therefore be evaluated in light of the historical track record. Similarly, New York has an aging and outdated energy transmission system: 84 percent of the transmission lines in New York were constructed before 1980, with at least 40 percent estimated to require replacement within 10 years.16 Because Indian Point is located within reasonable proximity to New York City, the State has been able to delay upgrades that would otherwise have been necessary to remedy transmission congestion caused by transporting larger amounts of 14 Id. at 14; see Power Trends 2010, N.Y. Indep. Sys. Operator, at 18 (“Unexpected retirement of one of the two Indian Point nuclear units . . . would create reliability needs if other resources were not made available in an appropriate location.”) [A–65]; Power Trends 2009, N.Y. Indep. Sys. Operator, at 17–18 (“Retirement of . . . Indian Point nuclear power unites . . . could cause severe shortage of electricity resources and create a strain on the availability of emission allowances.”) [A–67]. 15 Retirement Report, supra note 7, at 12 n.11. 16 Central Hudson Information on Transmission Projects in New York (last visited May 12, 2016) [A–70]. - 7 - electricity from more remote regions of the State.17 Retiring the Indian Point reactors will exacerbate transmission congestion and require a substantial overhaul of the State’s transmission infrastructure, which would take years or decades to complete.18 In the meantime, New York’s citizens (and the Reliability Council) will require increased production capacity to replace the power generated by Indian Point.19 Data strongly suggest that it will come from existing or newly-constructed fossil fuel-driven powerplants, which will cause a commensurate increase in air pollution, to the great detriment of New York residents that live near these plants.20 Specifically, New York has estimated that replacing Indian Point with a fossil fuel- driven powerplant would result in at least a 15 percent increase in carbon-based emissions, as well as a 7 to 8 percent increase in NOx emissions.21 That is because while nuclear plants produce on average only 12 grams of emissions per kWh, coal, petroleum, and even natural gas-fired plants produce substantially more emissions:22 coal-fired plants produce 820 grams per kWh, petroleum-fired plants 17 See id. 18 Retirement Report, supra note 7, at 17. 19 See id. at 9. 20 See id. at 11. 21 Id. at 13; see also Mark Berkman et al., New York Nuclear Power Plants’ Contribution to the State Economy, BRATTLE GROUP, Sept. 2015, at 10–11 [A–74]; STEFFEN SCHLOMER ET AL., CLIMATE CHANGE 2014: MITIGATION OF CLIMATE CHANGE 1329–1356 (Cambridge University Press 2014) [A–76] [hereinafter, MITIGATION OF CLIMATE CHANGE]. 22 MITIGATION OF CLIMATE CHANGE, supra note 21, at 1335; see U.S. Energy-Related CO2 Emissions in Early 2012 Lowest Since 1992, U.S. Energy Info. Admin., Aug. 1, 2012 [A–79]. - 8 - produce 677 grams per kWh, and natural gas-fired plants produce 490 grams per kWh.23 Thus, replacing the power generated by Indian Point with power from a fossil fuel-driven plant will significantly increase overall emissions in New York.24 II. NEW YORK MUST CONSIDER THE ENVIRONMENTAL IMPACT ON URBAN MINORITY COMMUNITIES. New York has defined urban minority communities as communities with greater than 51 percent minority residents,25 which includes Bronx (72 percent minority), Queens (60 percent minority), and Kings (64 percent minority) counties.26 Presently, these counties have a greater prevalence of hazardous emissions due in large part to zoning laws, which were initially developed to protect public health and safety, but have resulted in inequitable land use and disproportionate 23 MITIGATION OF CLIMATE CHANGE, supra note 21, at 1335; Charlotte Hussy et al., International Comparison of Fossil Power Efficiency and CO2 Intensity, ECOFYS, Sept. 5, 2014, at 81–82 [A–80]; see Comparison of Lifecycle Greenhouse Gas Emissions of Various Electricity Generation Sources, WORLD NUCLEAR ASS’N., July 2011, at 6–7 [A–83]. In New York, these emission rates translate into about 84 million metric tons of emissions for 2.7 million MWh of petroleum-fired power, 70.1 million metric tons of emissions for 43 million MWh of natural gas- fired power, and 6.5 million metric tons for 13.2 million MWh of coal-fired power. See Energy- Related Carbon Dioxide Emissions at the State Level, 2000-2013, U.S. Energy Info. Admin., Oct. 26, 2015, at 8 [A–85]; New York Energy Profile, U.S. Energy Info. Admin. (last visited May 12, 2016) [A–87]. 24 Retirement Report, supra note 7, at 13. 25 Erin Crotty, CP-29 Environmental Justice & Permitting, N.Y. State Dep’t. of Envtl. Conservation, March 19, 2003, at 3–4 [A–89]. 26 N.Y. Demographics for Bronx, Queens, and Kings Counties, Census Reporter (last visited May 12, 2016) [A–94]. - 9 - environmental burdens.27 In New York City, for example, the largest concentrations of M3 zoning districts—areas designated for heavy industry, including powerplants—are located along the East River shore in South Bronx and the Gowanus Canal in Brooklyn.28 By contrast, Manhattan’s Upper East and West Sides, which are over 70 percent white,29 do not have any heavy industry districts.30 If the Indian Point reactors are closed, the minority communities located in these areas and throughout the greater New York City region are likely to be exposed to even higher levels of emissions, because the increased power generation necessary to make up for the loss of Indian Point will require heightened productivity from existing or newly-constructed fossil fuel-driven plants within the region.31 Such increased emissions will add to the disproportionately high emissions already experienced by majority-minority communities within that region.32 What is more, zoning laws that require 27 See JULIE SZE, NOXIOUS NEW YORK: THE RACIAL POLITICS OF URBAN HEALTH AND ENVIRONMENTAL JUSTICE 1–25 (MIT Press 2007) [A–95] [hereinafter, NOXIOUS NEW YORK]. 28 Information on Manufacturing (M3) Districts, N.Y.C. Planning (last visited May 12, 2016) [A–138]; Zoning by Area – Zoning Index Map, N.Y.C. Planning, Map Key No. 6A–6C, 16A, 16C–16D [A–139] [hereinafter, Zoning Index Map]. 29 Center for Urban Research, The Changing City at the Sweep of Your Mouse: Block by Block Demographic Changes Mapped Across New York, 2000 to 2010, UNIV. OF N.Y., 2011 [A–143] 30 Zoning Index Map, supra note 28, at Map Key No. 5D, 6B, 8C, 9A [A–144]. 31 See Retirement Report, supra note 7, at 13–14; Zoning Index Map, supra note 28, at Map Key No. 5D, 6A–6C, 8C, 9A, 16A, 16C–16D. 32 See id.; Juliana Maantay, Industrial Zoning Changes in New York City: A Case Study of “Expulsive Zoning,” PLANNING J. MASS. I. TECH., Special issue: Planning for Environmental Justice (2002), 63–108 [A–148] [hereinafter, Industrial Zoning Changes]. - 10 - powerplants to be sited within heavy industry districts ensure that the increased production necessary to compensate for the loss of the Indian Point reactors will disproportionately affect the minority communities that live in and amongst such districts.33 For example, Queens, Kings, and Bronx counties contain 24 powerplants with a combined capacity of about 8,000 MW34—including the Astoria35 and Ravenswood Generating Stations.36 Comparatively, Richmond, Suffolk, and New York counties—which encompasses an area four times larger— only have powerplants with a collective capacity of about 5,000 MW.37 Queens, Kings, and Bronx counties therefore have seven times more generating capacity per square foot than Richmond, Suffolk, and New York counties.38 If the Indian Point reactors are closed, the increased production necessary to generate replacement power—and the resulting emissions—will disproportionately affect the urban minority communities surrounding these powerplants.39 Moreover, any new facilities that are constructed to meet the rising demand and address the loss of the Indian Point reactors are also likely to be sited in these communities, given 33 Information on Manufacturing (M3) Districts, supra note 28. 34 List of N.Y. Powerplants (last visited May 12, 2016) [A–157]. 35 Description of Astoria (last visited May 12, 2016) [A–167]. 36 Description of Ravenswood Generating Station (last visited May 12, 2016) [A–168]. 37 See List of N.Y. Powerplants, supra note 34; Dep’t. of Health, Table 2: Population, Land Area, and Population Density by County, New York State -2006, N.Y. State [A–169]. 38 See id. 39 See Retirement Report, supra note 7, at 9; Zoning Index Map, supra note 28, at Map Key No. 5D, 6A–6C, 8C, 9A, 16A, 16C–16D; Industrial Zoning Changes in New York City, supra note 32. - 11 - their relatively high concentration of M3 zoned areas, the relative scarcity of M3 zoning in other communities, and the relative proximity of these minority communities to New York City.40 Air quality in minority communities is also negatively affected by activities related to increased operations at industrial facilities, such as increased transportation through neighborhoods in proximity to facilities.41 For example, more heavy duty trucks will be required to drive through minority neighborhoods in order to assist with increased operations. Unlike unleaded gas-powered vehicles, heavy duty trucks are diesel-powered and, therefore, emit far greater amounts of black carbon and associated organic matter (i.e., soot).42 It has been estimated that residents in Queens County, which has been ranked the 10th unhealthiest county in the nation, have a lifetime cancer risk due to diesel exhaust over 900 times higher than the acceptable EPA standard.43 Powerplants may also 40 See id; Information on Manufacturing (M3) Districts, supra note 28. 41 See Industrial Zoning Changes, supra note 32; Cheryl Katz, People in Poor Neighborhoods Breathe More Hazardous Particles, SCIENTIFIC AM., Nov. 1, 2012 [A–170]. 42 See Mark Jacobson, Control of Fossil-Fuel Particulate Black Carbon and Organic Matter, Possibly the Most Effective Method of Slowing Global Warming, 107 J. GEOPHYSICAL RES. 19, 16–18 (2002) [A–175]. 43 Ramon Cruz, Air Pollution Hot Spots in Queens: Time for Solutions, ENVTL. DEF., Jan. 2007, at 1 [A–177]. - 12 - be required to employ additional staff, which will result in increased commuter emissions.44 III. RESIDENTS OF KINGS, QUEENS, AND BRONX COUNTIES WOULD SUFFER AN INCREASED INCIDENCE OF ASTHMA AND OTHER RELATED HEALTH ILLNESSES. If the Indian Point reactors are closed, minority communities would experience a worsening of air quality because power production and related activities would likely increase in order to offset the loss of Indian Point.45 The relationship between emissions and adverse health consequences has been confirmed by the United States Department of Health and Human Services, which explained that “residential exposure to air pollution . . . [is] related to increased respiratory and other health problems in both adults and children.”46 Moreover, emissions not only trigger attacks, but also exacerbate existing conditions and can lead to the development of asthma in children.47 Adolescents are particularly vulnerable because excessive emissions stunt lung development, leaving 44 See Letter from Mark R. Sudbey, Chairman of the Board and Chief Officer, U.S. Power Generating Corp., to Hon. Jaclyn Brilling, Secretary, N.Y. State Public Service Commission (Dec. 14, 2011) (on file with N.Y. Indep. Sys. Operator) [A–179]. 45 Supra part II. 46 Alina Das, The Asthma Crisis in Low-Income Communities of Color: Using the Law as a Tool for Promoting Public Health, 31 N.Y.U. REV. L. & SOC. CHANGE 2, 273–314 (2007) [A– 180]. 47 See Laura Donnelly, Air Pollution Stunting Children’s Lungs, Study Finds, TELEGRAPH, Oct. 25, 2015 (finding children living in polluted urban areas have up to 10 percent less lung capacity, and recommending a 500-foot barrier between schools and parks to avoid the impact of air contaminants that stunt adolescent lung development) [A–184]; Molly Ginty, Climate Change is in the Air, NAT’L. RES. DEF. COUNCIL, Dec. 31, 2015 [A–187]; see also LAWRIE MOTT ET AL., OUR CHILDREN AT RISK: THE FIVE WORST ENVIRONMENTAL THREATS TO THEIR HEALTH (Nat’l. Res. Def. Council 1997) [A–190]. - 13 - adolescents more susceptible to illness as they mature.48 Specifically, outdoor pollutants have been linked to respiratory illnesses such as bronchitis, emphysema, and cancer as well as cardiovascular disease, including advanced coronary lesions and increased plaque size.49 Given the adverse health effects associated with air pollution, agencies such as the National Resource Defense Council recommended that asthma sufferers and adolescents avoid “hot spots”—areas identified as the most responsive regions to carbon-based climate change.50 In New York City, “hot spots” are more prevalent in low income and minority communities because these areas often have heavy industry districts that are saturated with hazardous facilities.51 Because an individual cannot avoid a “hot spot” in which they reside, on average minorities experience higher exposure to air pollutants and suffer a greater incidence of 48 See id. 49 Tatsushi Suwa, et al., Particulate Air Pollution Induces Progression of Atherosclerosis, 39 J. AM C. CARDIOL. 6, 935–42 (2002) [A–200]; Stanton Glantz, Air Pollution as a Cause of Heart Disease, 39 J. AM. C. CARDIOL. 6, 943–44 (2002) [A–203]. 50 Molly Ginty, Asthma and Air Pollution, NAT’L. RES. DEF. COUNCIL, Dec. 31, 2015 [A– 205]. Fully defined, a “hot spots” is an area over which a dome of increased CO2 concentration forms that, over time causes local temperature changes. In turn, the temperature changes increase local air pollution. Such areas are generally located over urban centers where there is dense traffic congestion, or in close proximity to carbon-emitting facilities. Mark Jacobson, Enhancement of Local Air Pollution by Urban CO2 Domes, 44 AM. ENVTL. SCI. & TECH. 7, 2497–2502 (2010) [A–208]. 51 Erick Forno, et al., Asthma and Ethnic Minorities: Socioeconomic Status and Beyond, 9 CURR. OPIN. ALLERGY CLIN. IMMUNOL. 2, 154–60 (2014) [A–209] [hereinafter, Asthma and Ethnic Minorities]. - 14 - asthma.52 On a national scale, Puerto Rican adolescents have the highest prevalence of asthma at 19 percent, followed closely by African American adolescents at 13 percent.53 Comparatively, whites have a prevalence of 8 percent, which is below the national average of 9 percent.54 Within New York City, minority neighborhoods such as the Bronx, Harlem, and Brooklyn have much higher rates of childhood asthma (20 to 30 percent prevalence), than primarily white neighborhoods (as low as 4 percent prevalence).55 And, in turn, the rates of hospitalizations and deaths due to asthma are three times higher among African Americans than among whites.56 The consequences of air pollution on children are not limited to the development of asthma. Rather, asthma in children has also been linked to obesity, and the disparity in asthma rates may have some relationship to the disproportionately high incidence of obesity among minority children (19 to 20 percent) as compared with white children (11 percent).57 Children with asthma are 52 See NOXIOUS NEW YORK, supra note 27, at 91–108. African Americans have an asthma rate 40 percent higher than whites. Among those with asthma, African Americans have a rate of attack that is 40 percent higher than whites. Aliyah Baruchin, For Minority Kids, No Room to Breathe, N.Y. TIMES, Aug. 8, 2007 [A–213]. 53 Asthma and Ethnic Minorities, supra note 51, at 155. 54 Id. 55 Asthma Facts (2nd Ed.), N.Y.C. Dep’t. of Health & Mental Hygiene, May 2003, at 16 [A– 215]. 56 Reducing Asthma Disparities, Nat. Heart, Lung & Blood Inst., Dec. 2012 [A–219]. 57 See Patrick Kiger, Air Pollution Linked to Obesity, DISCOVERY NEWS, Feb. 23, 2016 [A–220]. - 15 - also twice as likely to develop depression and anxiety disorders.58 Thus, air pollution has a uniquely devastating effect on children and often results in a host of long-term health consequences.59 Given the significant risks associated with exposure to degraded air quality, it is neither fair nor just to simply pile additional environmental burdens on a population that bears a disproportionately heavy environmental load. CONCLUSION The retirement of the Indian Point reactors is likely to begin a chain reaction ending in increased negative health consequences for already vulnerable communities. If Indian Point closes, New York would lose a substantial amount of its power. To comply with the mandatory reliability standard, power production would likely increase at fossil fuel-driven powerplants, resulting in an increased emissions rate. Because zoning regulations limit the placement of powerplants, minority communities, which are more likely to exist in close proximity to districts zoned for heavy industry, will suffer a majority of the health consequences associated with the increased air pollution. These factors weigh strongly against any decision to close the Indian Point reactors. 58 Univ. of Wash., Asthma Linked to Depressive Disorders, Study Suggest, SCIENCE DAILY, Nov. 7, 2007 [A–222]. 59 See id. Date: June 8, 2016 Respectfully submitted, e B. Bea (NY Bar o. 1054) S. Cashman (Pro Hac Vice to be Filed) Step anie L. Cobau (Pro Hac Vice to be Filed) SINGER I BEA LLP 601 Montgomery Street, Suite 1950 San Francisco, California 94111 Telephone: ( 415) 500-6080 Facsimile: (415) 500-6080 rbea@singerbea.com - 16-