Rachel Robinson Health Effects of Coal-fired Power Plants Health Effects and the True Cost of Coal-fired Power

r Plants

I. Introduction Pollution from coal-fired power plants, such as the one Santee-Cooper plans to build in the wetlands of Florence County, release several types of pollution into the air and water that are harmful to human health. Technology has made it easier to control these emissions but has not yet made it possible to eliminate them in the context of coalfired power plants. Since human beings use the environment not only for coal and other resources to create power, but also for food, water, and air, pollution impacts the people as much as the earth itself. Even very small daily amounts of mercury and carbon dioxide can have a big impact on the environment as the emissions accumulate over time. Fish in nearby rivers absorb more and more mercury as more and more mercury is released into the water. People who consume too much of these fish are likely to develop neurological problems. Mercury is known to cause autism in children exposed to the toxin at an early age. Steve Brown, Study links power-plant mercury emissions to autism, Education Daily, 3 March 24, 2005. Carbon dioxide, sulfur, and nitrogen particulate emissions cause increased rates of asthma and other respiratory diseases in people in nearby communities. Sierra Club, Clean Air Dirty Coal Power

http://www.sierraclub.org/cleanair/factsheets/power.asp. Both mercury and particulate emissions have the greatest detrimental effect on children, minorities, and low income populations. This paper discusses the health problems caused by these air pollution, water pollution, and waste stored onsite at coal-fired power plants, and details the costs

Rachel Robinson Health Effects of Coal-fired Power Plants associated with those problems from an environmental justice perspective, as well as analyzing current legal remedies and possible solutions to the problem of injurious exposure to these types of pollution.

How Coal-Fired Power Plants Pollute Coal-fired power plants produce several different types of pollution which can be harmful to humans and the environment. Power plants are a major source of air pollution, with coal-fired power plants spewing 59% of total U.S. sulfur dioxide pollution and 18% of total nitrogen oxides every year. Coal-fired power plants are also the largest polluter of toxic mercury pollution, largest contributor of hazardous air toxics, and release about 50% of particle pollution. Additionally, power plants release over 40% of total U.S. carbon dioxide emissions, a prime contributor to global warming. Sierra Club, Clean Air Dirty Coal Power http://www.sierraclub.org/cleanair/factsheets/power.asp. Because of these emissions, coal-fired power plants are one of the largest causes of smog, which is also known as ground level ozone. According to the American Lung Association, nearly half of Americas residents live in areas with unhealthy amounts of ground level ozone. Id. Sulfur dioxide and nitrogen oxide can become even more dangerous when they combine to form particulate matter. Pollution in the form of particulate matter causes approximately 30,000 deaths in the United States each year and approximately 64 million Americans suffer from asthma, heart attacks, strokes, irregular

Rachel Robinson Health Effects of Coal-fired Power Plants heart beat, and other health problems when they experience exposure to particulate matter. Id. Coal releases a third more carbon dioxide into the air per given amount of energy produced, as compared to natural gas. Evaluating the Modification of Power Plants: a Streamlined Five Question Approach 35 Cap. U.L. Rev. 845 (2007). Even newer, clean coal-fired power plants release some amount of these toxins into the environment and also expose employees to harsh toxins inside the plant. Coal-fired power plants are also the largest source of mercury pollution in the United States. Sierra Club, Clean Air Dirty Coal Power,

http://www.sierraclub.org/cleanair/factsheets/power.asp. Not only are communities exposed to the pollution emitted into the environment outside of the coal-fired power plant, but employees who work inside the plant are exposed to these pollutants on a daily basis as well. Employees of the plant may be exposed to particulate matter more commonly known as coal soot, coal tar, and creosote, which have all been linked to increased rates of a type of cancer known as neuroblastoma in children whose parents are exposed to such pollutants. Francesca Dominici, et al, The Role of Epidemiology in the Law: A Toxic Tort Litigation Case, 7 Law, Probability & Risk 15, 18 (2008).

II. Health Effects of Water Pollution Water pollution is one of the most harmful types of pollution caused by coal-fired power plants. Mercury emissions from these plants are released into the air when coal is burned and then fall to the ground where they enter the waterways near the plant and are

Rachel Robinson Health Effects of Coal-fired Power Plants absorbed by fish living in the water. Bioaccumulation makes it possible for these fish to continue to absorb more mercury the more they are exposed to it. James D. Stivers, The Mercurys Rising! Can National Health Group Intervention Protect the Public Health from EPAs Clean Air Mercury Rule?, 27 J. Legal Med. 323, 329 (2006). This becomes a problem when people begin to consume the mercury laden fish. Individuals exposed to too much mercury are likely to develop irreversible neurological problems including cerebral palsy, deafness, and blindness, as well as poor attention span, visual-spatial abilities, language, and fine motor control. Catherine A. ONeill, Mercury, Risk, and Justice, CPR White Paper #405, 1 (2004). In adults, mercury exposure is also linked to cardiovascular disease. American Public Health Association, National Medical and Public Health Groups Sue EPA to Prevent Future Mercury Exposure,

http://www.apha.org. Consumption of mercury-laden fish has also been linked to a greater risk of coronary heart disease in middle-aged men. Sierra Club, Clean Air Dirty Coal Power, http://www.sierraclub.org/cleanair/factsheets/power.asp. When the exposed individual is a young or unborn child, the damage is even greater. Young or unborn children exposed to mercury may have to deal with learning disabilities such as autism for the rest of their lives. In fact, 1 in every six babies born each year in the United States will be at risk for developing problematic neurological conditions due to prenatal mercury exposure. Corey Stephen Shoock, Blowing in the Wind: How a Two-Tiered National Renewable Portfolio Standard, a System Benefits Fund, and Other Programs Will Reshape American Energy Investment and Reduce Fossil Fuel Externalities, 12 Fordham J. Corp & Fin. L., 1011, 1021 (2007).

Rachel Robinson Health Effects of Coal-fired Power Plants A. Mercury is Linked to Autism Mercury exposure in young children is linked to autism. A study conducted in 2005 on the specific relationship between power-plant emissions and learning disabilities in children showed a multiple-digit increase in the rate of autism for every 1,000 pounds of mercury released environmentally in Texas counties. Steve Brown, Study links power-plant mercury emissions to autism, Education Daily, 3 March 24, 2005. In addition to a 17 percent increase in the rate of autism, the same study showed a 43 percent increase in the rate of special education services for every 1,000 pounds of mercury emitted in these counties. Id. The special education programs needed to educate children with neurological conditions like autism are funded by federal tax dollars through the Disabilities Education Improvement Act. Id. The cost that the federal government must pay to educate these children under the Disabilities Education Improvement Act is $18,800 per student annually, while the cost to educate a non-special education child is only $6,556 annually. Id.

B. Mercury is Linked to Lower IQs Additionally, children who were exposed to mercury at a young age are likely to have lower IQs than children who do not consume contaminated fish. James D. Stivers, The Mercurys Rising! Can National Health Group Intervention Protect the Public Health from EPAs Clean Air Mercury Rule?, 27 J. Legal Med. 323, 330 (2006). The problem may be worse when pregnant women consume contaminated fish, causing prenatal exposure to mercury. Id. Studies from the EPA indicate that as much as 15.7 percent of American women have blood mercury levels that are high enough to cause

Rachel Robinson Health Effects of Coal-fired Power Plants health problems in any children they may choose to bear. Id.. One way of measuring the effect of mercury is to measure the amount of mercury in the blood of the umbilical cord, known as the cord blood level, of a newborn child and subsequently assessing the development of that child to see if the child has any neurological symptoms. Philip J. Landrigan, et al, Public Health and Economic Consequences of Methyl Mercury Toxicity to the Developing Brain, Childrens Health, Volume 113, Number 5, 590 (2005). Children with high cord blood mercury levels are likely to have lower IQs than children who do not have high cord blood mercury levels. Id. In America, some studies suggest that the loss in productivity due to the loss in IQ costs our economy $8.7 billion annually and that 15 percent of that loss is directly attributable to the emissions arising from American power plants. Supra..

C. Higher Levels of Mercury Found in Lower Income Children While any child exposed to mercury is at a greater risk for developing the neurological conditions caused by this pollutant, studies show that mercury has a disparate impact on lower income children because lower income children are more likely to be exposed to mercury than higher income children. A study found much higher blood mercury levels in lower income and minority children than in higher income children. Catherine A. ONeill, Mercury, Risk, & Justice, CPR White Paper, #405, 2 (2004). This may be because low income populations are more likely to use fish from contaminated waters for subsistence than higher income populations. Also, the families of children with less monetary resources may be less able to access information such as fish advisories and may simply not know that the fish they are consuming are

Rachel Robinson Health Effects of Coal-fired Power Plants contaminated. Children who are already economically disadvantaged will face an even harder life if they must also live with the permanent neurological damage caused by exposure to mercury.

D. Methods Already Employed to Regulate Mercury Mercury emissions are already limited under the Clean Air Act and Clean Water Act and guidelines are in place for the publication of fish advisories to notify local communities if the mercury levels in local fish are too high for safe consumption. Those numbers are based on an estimate of the total amount of fish consumed per person each year. However, the current estimates on fish consumption are much higher than the original estimates, while the guidelines for fish advisories remain the same. Protecting the Tribal Harvest: The Right to Catch and Consume Fish

22 J. Envtl. L. & Litig. 131, 134 (2007). This means that people may think that it is safe to consume fish from a certain body of water without knowing that the fish are already contaminated. If these individuals consume more than the prior estimate, they may be at risk for health problems associated with mercury. As an alternative to a flat-rate limitation on emissions, some areas employ a capand-trade system and the Environmental Protection Agency has recently implemented the Clean Air Mercury Rule which puts a cap on mercury emissions. Environmental Protection Agency, Clean Air Mercury Rule,

http://www.epa.gov/oar/mercuryrule/basic.htm. There is a lot of disagreement as to whether it is better to create hot spots of pollution or to spread it thin. Whether it is better to cause a high degree of per capita harm to a relatively small area, or a smaller amount

Rachel Robinson Health Effects of Coal-fired Power Plants of per capita harm over a much larger area is a question that remains to be answered. However, cap-and-trade systems, which are discussed in Section III of this paper, could be a viable option for reducing pollution by giving the owners of power plants a real monetary incentive to reduce their own emissions instead of penalizing them for not reducing emissions.

E. Mercury in South Carolina In South Carolina, mercury is already a huge problem. Many of South Carolinas waterways are already under advisory from DHEC due to the amount of mercury in local fish and South Carolina is considered to be one of the nations major mercury hot spots. SCDHEC, Fish Advisories, http://www.scdhec.gov/environment/water/fish/map.htm. In 2006, there were more than 2300 cases of autism in South Carolina. Fighting Autism, Number of Cases (South This rate Carolina), of autism

http://www.fightingautism.org/idea/autism.php?s=SC&z=m.

translates to 1 in every 258 public school students in the state of South Carolina. Fighting Autism, Autism Prevalence, Public School State Rankings, 2006-2007,

http://www.fightingautism.org/idea/autism-state-rankings.php. If Santee-Cooper adds to this problem by allowing more mercury to enter our waterways, the health problems caused by consumption of contaminated fish will only get worse.

III. Health Effects of Air Pollution Air pollution in the form of particulate emissions of carbon dioxide, sulfur, and nitrogen oxide is another major cause of health problems in populations that live and

Rachel Robinson Health Effects of Coal-fired Power Plants work near coal-fired power plants. According to the Sierra Club, [i]n smokestack tests, coal-fired power plants were found to 67 release air toxics, many of which are known or suspected carcinogens and neurotoxins that can cause development problems, respiratory problems, and aggravate asthma. Sierra Club, Clean Air Dirty Coal Power, http://www.sierraclub.org/cleanair/factsheets/power.asp.

A. Air Pollution Causes Higher Rates of Asthma and Other Respiratory Diseases Studies show higher rates of asthma and other respiratory diseases in individuals exposed to the types of pollution that coal-fired power plants emit. Coal-fired power plants emit nitrogen oxide, which is one of the main causes of ground level ozone, which is known to cause increased respiratory problems. Judi Brawer, The New Hot Topic in Environmental Law: Global Warming, 50-JUL Advocate (Idaho) 17, 19 (2007). Health advisories are often issued in areas with high levels of particulate emissions regarding ground level ozone, indicating the current severity and the types of individuals who should stay inside. However, it is not always possible for these individuals to simply stay inside, given the need for traveling to work or school or other daily necessities. In addition to ground level ozone, particulate emissions like coal soot formed by sulfur dioxide and nitrogen oxide can also aggravate asthma and cause other serious health conditions as mentioned above. Sierra Club, Clean Air Dirty Coal Power, http://www.sierraclub.org/cleanair/factsheets/power.asp. Coal is the cause of almost 554,000 asthma attacks each year, as well as 16,200 cases of chronic bronchitis, and 38,200 non-fatal heart attacks. Corey Stephen Shoock, Blowing in the Wind: How a TwoTiered National Renewable Portfolio Standard, a System Benefits Fund, and Other

Rachel Robinson Health Effects of Coal-fired Power Plants Programs Will Reshape American Energy Investment and Reduce Fossil Fuel Externalities, 12 Fordham J. Corp & Fin. L., 1011, 1021 (2007). Exposure to pollution from power plants is estimated to remove 14 years from the life span of those exposed to it. Id.

C. Higher Rates of Respiratory Diseases in Low Income and Minority Populations There is a disparate impact on lower income and minority populations. Minorities are treated for asthma at a much higher rate than non-minorities. The same is true for low income citizens. Additionally, it has been shown that clean-up measures are more likely to occur in more-white communities than in less-white communities. From an environmental justice perspective, this can be a real problem, since the goals of environmental justice include reducing the disparate impact of environmental problems on low income and minority populations. Environmental Protection Agency, Memorandum, http://www.epa.gov/compliance/resources/policies/ej/admin-ej-commit-

letter-110305.pdf. Additionally, when people cant afford the healthcare they need because of conditions brought on by the environment they live in, it falls on the taxpayer to take care of that individual through programs like Medicare and MedicaId. If power plants reduced their emissions, they would also be reducing the cost of healthcare that the nations taxpayers must pay for. Corey Stephen Shoock, Blowing in the Wind: How a Two-Tiered National Renewable Portfolio Standard, a System Benefits Fund, and Other Programs Will Reshape American Energy Investment and Reduce Fossil Fuel Externalities, 12 Fordham J. Corp & Fin. L., 1011, 1021 (2007).

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Rachel Robinson Health Effects of Coal-fired Power Plants B. Government Regulation of Air Pollution Emissions are limited under the Clean Air Act, but not eliminated. The Clean Air Act requires newly constructed plants to use the best available control technology and mainly uses the permitting process to regulate pollution from major sources like coalfired power plants. In an effort to reduce pollution in a general way, Cap-and-trade systems are sometimes employed to get around the emissions standards, but again, these methods are highly controversial. In a cap-and-trade system, power plants are only allowed enough permits to release a specific amount of pollution. However, if the power plant is able to reduce its emissions, then the company that owns the plant can sell any permits it has in excess of the actual amount of pollution the plant produces to other plants, which are then allowed to pollute more. Jason Mathers, et al, How it Works: Capand-Trade http://www.ucsusa.org/publications/catalyst/page.jsp?itemID=27226959. Systems, This is

supposed to guarantee that the pollution for a given area stays below a certain level cumulatively, but that usually means that every location in the area has pollution instead of localizing the pollution to one specific region. One real advantage of this system is that it is often more successful than traditional methods such as fines or taxes. Id. Giving the companies that own power plants this type of flexibility, while simultaneously providing clear-cut standards that must be met could be a good way to achieve a reduction in air pollution. Id. The opportunity for power plants to make more money by being more efficient is a real incentive for them to find low-cost methods of reducing pollution. Id. After all, the companies cant bring in money by selling their permits unless their own plants release much less pollution than their permits allow. Id. However, some states

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Rachel Robinson Health Effects of Coal-fired Power Plants argue that the Environmental Protection Agencys cap-and-trade rules are contrary to the provisions of the Clean Air Act and should be rescinded, but the litigation regarding this issue has not been settled and may or may not succeed. Environment News Service, Sixteen States Sue E.P.A. over Cap and Trade Rule, http://www.ens-

newswire.com/ens/jun2006/2006-06-19-02.asp.

D. Air Pollution in South Carolina Unlike mercury in the water, air pollution in general does not yet appear to be a problem in the Pee Dee area where Santee-Cooper plans to construct a new coal-fired power plant, although ground level ozone warnings are frequently issued by the Department of Health and Environmental Control in some other counties in South Carolina. SCDHEC, Fish Advisories,

http://www.scdhec.net/environment/baq/baqspare.asp. However, just because this type of pollution is not a huge problem in South Carolina now does not mean it is okay to make it a problem in South Carolina. Instead, South Carolina should try to preserve what it has while it still can. Also, since mercury is first released into the air before it falls to the ground and since South Carolina is already such a hot spot for mercury, air pollution of that nature can certainly be considered a huge problem for the state of South Carolina that should be addressed by reducing the amount of mercury that can be released into the states environment.

IV. Potential Health Threats from Waste Stored Onsite at Coal-fired Power Plants

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Rachel Robinson Health Effects of Coal-fired Power Plants Pollution from waste stored onsite at coal-fired power plants can also become a problem for the people who live and work near the plants, particularly if the plant is built in an area where flooding occurs. It may seem safe to store pollutants that could otherwise become airborne in ash ponds which are isolated from the water supply. However, it is not impossible for these pollutants to escape into the environment. One such incident occurred just a few short years ago when floodwaters caused by Hurricane Katrina washed these types of pollutants to the surface and into the water supply in New Orleans. Juliet Eilperin, Flooded Toxic Waste Sites Are Potential Health Threat, Washington Post, A15 September 10, 2005. When pollution stored onsite is washed into the water supply, that pollution is then capable of having the same effect on peoples health as if it had never been kept out of the environment.

A. Regulation of Waste Stored Onsite The Environmental Protection Agency regulates the storage of waste onsite, such as ash ponds at coal-fired power plants, through permits granted after the completion of Environmental Impact Statements. Environmental Protection Agency, Environmental Impact Statements and Regulations; Availability of EPA comments,

http://www.epa.gov/fedrgstr/EPA-IMPACT/2006/February/Day-24/i2661.htm. Through this process, members of the public have the opportunity to comment on the environmental impact statement once it is submitted, so that the process is very thorough and may include many different perspectives. Id.

B. Potential for Harm in South Carolina

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Rachel Robinson Health Effects of Coal-fired Power Plants Wetlands areas like the Pee Dee site have the potential for this type of flood. South Carolina is vulnerable to hurricanes as a coastal state. Hurricanes have hit South Carolinas coast in the not too distant past causing vast flooding and destruction and it is not unlikely to happen again. If a coal-fired power plant is constructed in the Pee Dee area in South Carolina, there will be some risk of additional pollution from the plant if flooding occurs and the waste stored onsite gets washed into the surrounding wetlands area, which attaches to the states water supply. While this may not be as immediate of a risk as particulate matter or mercury emissions, it is still a way in which the plant could be harmful to South Carolinas environment and citizens.

V. Costs

A. Monetary Costs Overall, how great is the affect on the populations health? The harmful effects of mercury cost our government billions of dollars for special needs education for affected children. Our economy loses billions of dollars in lowered productivity in exposed individuals. Exposure to emissions also increases medical and pharmacy costs due to increased rates of illness in exposed individuals. Corey Stephen Shoock, Blowing in the Wind: How a Two-Tiered National Renewable Portfolio Standard, a System Benefits Fund, and Other Programs Will Reshape American Energy Investment and Reduce Fossil Fuel Externalities, 12 Fordham J. Corp & Fin. L., 1011, 1021 (2007). All told, the health care costs caused by plant emissions total an estimated $160 billion annually. Id. Someone has to pay for these costs, but the populations most effected by harmful

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Rachel Robinson Health Effects of Coal-fired Power Plants emissions are often the least likely to be able to afford it. Between federal educational programs for children with learning disabilities, loss of productivity, and state or federal programs to help disadvantaged citizens pay for healthcare, taxpayers and healthy, nonexposed citizens are footing the bill for the damage caused to children and adults exposed to mercury from power-plant emissions. Steve Brown, Study links power-plant mercury emissions to autism, Education Daily, 3 March 24, 2005.

B. Social Costs However, the cost is not only monetary, but also social. There is a greater effect on minorities and low income populations. In addition to the immediate costs of visits to the doctor and the pharmacy, lower IQ, decreased productivity, and illness of exposed populations lowers the chance that these populations will rise above their current income or social status. This social cost is exactly the kind of harm that environmental justice groups and the United States Government are striving to overcome. The federal government issued Executive Order 12898 to help further the goals of environmental justice. One of those goals is to prevent the imposition of an undue burden on lower income and minority populations in terms of the environmental harm these populations are exposed to. Exec. Order No. 12,898. While Executive Order 12898 mandates the avoidance of disparate impact on low income and minority populations, currently there is no private cause of action under this environmental justice statute. Should we create one? It is also difficult to prevail under other legal avenues, such as Title VI and Section 1983, since the plaintiff has to prove intentional discrimination. 42 U.S.C. sec. 1983, 42 U.S.C. sec. 2000d. Legal proceedings

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Rachel Robinson Health Effects of Coal-fired Power Plants along these lines are costly and time consuming, making it difficult for the most affected populations to fight the battle. Although the lower income and minority populations are the most affected, even in middle to high income or majority populations, exposure to mercury and particulate emissions decreases life expectancy and lowers the quality of life for many individuals.

The Cost of Not Using Coal-Fired Power Plants It is important to note that, although coal-fired power plants can be very harmful to communities in areas surrounding such plants, there are also benefits that must be weighed against these costs. No parent would choose to give his or her child autism, but most parents would choose to provide a warm house for their children, with power for light and computers that are necessary for schoolwork in this day and age. Most parents would also choose to have a job or to have a better job so that they would have the money to pay for food, water, and anything else their family might need. In many cases, these choices mean working for a coal-fired power plant or using the power that plant creates. If every coal-fired power plant went offline today, there would be no way to immediately compensate for the loss of energy.

C. Local Costs in South Carolina On a local level, South Carolina will only continue to struggle in its educational battle if more toxins are released into the local environment. This state already has some of the lowest test scores and is consistently listed in the bottom ranks for childhood education. Georgia School Council Institute, 2006 SAT Rankings by State,

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Rachel Robinson Health Effects of Coal-fired Power Plants http://www.gsci.org/home/2006%20SAT%20Rankings%20by%20State.pdf. If South

Carolinas children are exposed to more mercury, causing an increase in neurological diseases, it will only become more difficult to remedy the situation. However, if there is truly a need for more energy production in South Carolina, as well as a need for more jobs, then it may be difficult to convince the public that the eventual development of health conditions is more important than the more immediate, day-to-day need for electricity and money from the creation of employment opportunities. If what Santee-Cooper says about South Carolinas need for power is true, then the proposed coal-fired power plant in the Pee Dee region would be able to service the projected 70% increase in population by the year 2030 in Horry and Georgetown counties, as well as a more modest increase in population in the surrounding counties. Santee-Cooper, Economic Impact Study on Pee Dee Energy Campus,

https://www.santeecooper.com/KeepingTheFutureBright/NewsStory.aspx?id=14. SanteeCooper also expects to create a projected 200 permanent job positions and 3,200 temporary positions during the 5 year construction phase. Id. If these projections are accurate, then the plant would certainly be a boon to the economy of South Carolina from a monetary standpoint. Unfortunately, at least some of that money would go toward the medical and educational costs associated with the pollution the plant would produce.

VI. Legal Remedies

A. Risk Reduction

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Rachel Robinson Health Effects of Coal-fired Power Plants Risk reduction is an injury avoidance technique that places the burden of preventing harm on the shoulders of the industry that is releasing pollution into the environment. No Mud Pies: Risk Avoidance as Risk Regulation,

31 Vt. L. Rev. 273, 277 (2007). This is usually achieved through the enactment of federal or state regulations making it illegal to release toxins into the environment without a permit. Id. One example of this is the Environmental Protection Agencys regulations regarding pollutants emitted from power plants such as the one Santee-Cooper wishes to construct in the Pee Dee region of South Carolina. Environmental Protection Agency regulations require power plants to bear the burden up to a certain point. Environmental Protection Agency, Clean Air Act, http://www.epa.gov/air/caa//. Federal statutes require new power plants to be constructed using the best available control technology. Id. However, there is much disagreement as to what constitutes best available control technology. Additionally, most of these restrictions are not retroactive, which means that the newer, cleaner power plants will simply contribute less pollution not that pollution must be decreased generally throughout the industry. Companies that own older power plants frequently sue the government to get around any requirements that do apply to them by finding loopholes in the definitions of construction or repair. Andrew D. Webster, Evaluating the Modification of Power Plants: A Streamlined Five Question Approach, 35 Cap. U. L. Rev. 845, 846 (2007). With this lack of cooperation, it is difficult to make any headway on the risk reduction front. Power plants must adhere to federally mandated limits on emissions through the Clean Air Act and the Clean Water Act, which mostly utilize a permitting system to control pollution, but those levels still allow a quantity of pollution that can be harmful to human health, especially considering

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Rachel Robinson Health Effects of Coal-fired Power Plants the issue of bioaccumulation of mercury in fish and underestimates on the amount of fish actually consumed by the American population. Catherine A. ONeill, Protecting the Tribal Harvest: The Right to Catch and Consume Fish, 22 J Envtl. L. & Litig. 131, 134 (2007). Risk reduction is certainly a valuable technique, but the current laws may be too lenient in their requirements and power companies often find ways to get around the laws requirements, even if they must engage in costly litigation to do so.

B. Risk Avoidance Under risk avoidance, individual citizens are required to be responsible for their own exposure to the harmful pollutants in the environment. This means being aware of fish advisories for any body of water from which the individual intends to consume fish. Catherine A. ONeill, Mercury, Risk, & Justice, CPR White Paper, #405, 4 (2004). Risk avoidance also requires individuals to be aware of ground level ozone advisories, and to stay inside if the advisory indicates dangerous levels of ground level ozone. However, not everyone can simply stay inside and avoid exposure. Most people have to work or go to school or do other things that require them to be outside for some period of time, even if only for a few minutes while walking between a house and their car. This method of injury avoidance can only be successful where it is truly possible to avoid the danger and where the public has been fully informed of the danger and the consequences of not avoiding such danger.

D. Tort Claims

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Rachel Robinson Health Effects of Coal-fired Power Plants Another possibility is to wait until the exposure to pollution causes injury, then make a tort claim after the damage is already done. One obvious problem with this type of claim is that it does little to prevent harm, but instead offers to replace health with money after the fact. In an ideal world, we would instead be able to make sure that the harm does not occur in the first place. In a toxic tort claim, the plaintiff must prove that the defendants conduct caused the exposure to a toxic element and that this exposure is more likely than not causally related to the [plaintiffs] injury. Francesca Dominici, et al, The Role of Epidemiology in the Law: A Toxic Tort Litigation Case, 7 Law, Probability & Risk 15, 15 (2008). Litigation of this type requires strong statistical evidence. It may be difficult to succeed with some tort claims if fish advisories and ground level ozone advisories qualify as a warning, putting the responsibility for avoidance on the individual. Also, given the problem of often lengthy latency periods between exposure and the onset of observable symptoms, it is sometimes difficult to prove that a specific source of pollution really was the cause of the disease. The process is expensive and the case is often difficult to prove, and money damages cannot reverse the damage done and rarely effect any change in the industry. Comment: Evaluating the Modification of Power Plants: a Streamlined Five Question Approach 35 Cap. U.L. Rev. 845, 846 (2007). Additionally, the positive effect of a tort lawsuit of this nature is debatable.

E. Constitutional Claims Currently, [t]he right to a healthful environment is not a fundamental right under the federal Constitution. 39A C.J.S. Health & Environment 101. However, environmental protection can be considered a matter of national interest and it is

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Rachel Robinson Health Effects of Coal-fired Power Plants regulated on the federal level through the Clean Air Act and the Clean Water Act. The Environmental Protection Agency is a federal agency as well. Although the right to a healthful environment does not fall under the ambit of the federal Constitution, it is possible for an individual state Constitution to make this a fundamental right. 39A C.J.S. Health & Environment 101. In the realm of Constitutional law, the issues of public health, welfare, and morals are usually left to the individual states. 16D C.J.S. Constitutional Law 1863. It may also be difficult to succeed with any Constitutional environmental claims because the legislature is allowed to confer fact-finding and enforcement powers on the agency created to regulate the applicable regulatory statute. 39A C.J.S. Health & Environment 130. Thus the agency essentially becomes its own government within the government. There may be certain ways to make succeed with a Constitutional claim involving health and the environment, but these claims involve a certain degree of creativity to find a Constitutional niche. For example, in Lucero v. Detroit Public Schools, the District Court hearing the case indicated that it may be possible to enforce a private right of action under 42 U.S.C. sec. 1983 by way of Title VI if it is found that there is a Fourteenth Amendment right to personal bodily integrity. U.S. Commission on Civil Rights, Not in My Backyard, http://www.usccr.gov/pubs/envjust/ej0104.pdf. This particular case involved students who were made to attend a school whose premises contained toxic chemicals. Id. Section 1983 provides in pertinent part that [e]very person who, under any color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the

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Rachel Robinson Health Effects of Coal-fired Power Plants deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. sec. 1983.

VII. Recommendations

A. Share the Burden In considering long term remedies for a complex problem such as the health effects of pollution from industrial sources like coal-fired power plants, one option could be a combination of reasonable risk reduction statutes for existing coal-fired power plants and reasonable risk avoidance on the part of the individual. Fish advisories are one example of risk avoidance that is flawed, but also practical to the degree that it actually works. Partially effective measures like fish advisories would be more effective if the people responsible for causing the pollution actively worked on cleaning up the harmful substances they have released into the environment and also worked to prevent future pollution to the degree that local pollution is under their control. For example, instead of settling for second-best technology, Santee-Cooper could use the cleanest technology possible or even use its resources to install photovoltaic cells at the location of the proposed coal-fired power plant in the Pee Dee region to be used in conjunction with the coal-fired plant to decrease the need for coal while simultaneously providing the power South Carolina needs. It is rarely practical to place the entire burden on one party. In this schema, everyone should be responsible for his or her own actions, and that includes the companies who own power plants as much as it includes individual citizens. Individuals

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Rachel Robinson Health Effects of Coal-fired Power Plants should be responsible for avoiding pollution that is known to exist and is actually avoidable, but power plants like Santee-Cooper should be responsible for not making the problem worse than it already is and for helping to clean up the damage they have already done.

B. Efficiency and Conservation A better alternative may be to use efficiency and conservation techniques to lower the need for new coal-fired power plants. If power companies are willing to say that individuals should bear the costs of avoiding the environmental dangers power plants create, they should find it just as reasonable to say that individuals should bear the cost of improving energy efficiency. Changing light bulbs to fluorescent or LED instead of incandescent, upgrading appliances to energy efficient models, and improving insulation will all reduce the need for new power plants. In the long run, this is a cheaper solution than the health and educational costs of constructing plants which release harmful emissions into the nations air and water. One downside to this method is the potential loss of jobs from the closing of power plants. Perhaps if power companies took the initiative to keep their power plants open, but begin using alternative energy sources such as solar power in addition to coal or other fossil fuels, this would not be quite as big of an issue. Power companies would not have to close their doors, but the environment would be cleaner. Although it is likely that coal-fired power plants or nuclear plants or even natural gas would still be needed to insure that we all have all the energy we need even when the sun goes behind a cloud, combining the two methods of energy production could greatly decrease the amount of

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Rachel Robinson Health Effects of Coal-fired Power Plants pollution that is produced, thereby decreasing the impact of such power plants on the health of the people.

C. What Can South Carolina Do? In South Carolina, the communities surrounding the proposed coal-fired plant in Florence County could make a huge difference in the need for power by upgrading light bulbs and appliances to more energy-efficient models. Since Santee-Cooper projects a need for more power in approximately 20 years, as a government owned utility, they could educate the public instead and eliminate the need for a new plant in South Carolina by promoting efficiency and conservation at the local level. Alternatively, as suggested above, perhaps Santee-Cooper could use the next 20 years to look into utilizing solar energy or other clean technologies along with a smaller coal-fired plant that truly does use the best available control technology to reduce the plants impact on South Carolinas environment and the health of South Carolinas people. At the very least, Santee-Cooper could invest in the actual best available control technology for the coal-fired power plant it intends to build rather than settling for second best as it currently intends to do. Since Santee-Cooper is a publicly owned utility, South Carolinas citizens who are opposed to the plant could make their voices heard by contacting their local representatives.

VIII. Conclusion There is no question that coal-fired power plants emit many different types of toxic pollution that cause harm to the environment and the people surrounding such facilities. However, the question of whether these types of power plants are necessary

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Rachel Robinson Health Effects of Coal-fired Power Plants given the availability of other alternatives is debatable. It is true that with population growth comes a growth in the need for energy, but maybe it is time to find a solution that does not involve the construction of new coal-fired power plants. While coal itself is one of the cheapest ways to create much needed power, the cost to those individuals exposed to particulate matter or mercury as a result of the operation of coal-fired power plants can be enormous. The other major question is who should take responsibility for preventing the harm that occurs because of pollution from coal-fired power plants. It is normally reasonable to expect individuals to take responsibility for their own lives and stay informed to keep themselves out of harms way. Unfortunately, that is easier said than done for many citizens. Often, the citizens most affected by dangerous pollution are those least capable of removing themselves from the situation. Harmful emissions from coalfired power plants decrease life expectancy, create neurological problems in exposed individuals, lower the IQs of exposed individuals, and increase the rates of respiratory diseases in exposed individuals. Since these health issues are most likely to affect people already in a difficult social or economic position, the costs are not only monetary, but also societal. Therefore, power plants need to reduce emissions to increase the likelihood that our most disadvantaged citizens will have a better chance for success in life. Because of the danger coal-fired power plants pose in terms of the health of the communities surrounding the plant, Santee-Cooper should not build a new coal-fired power plant in South Carolina. South Carolina would be better off learning to conserve energy rather than wasting even more of our resources and our people.

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