California’s landmark climate change law survived a dirty battle at the polls last fall when oil industry groups tried to take it down in a ballot initiative. But now a new challenge has surfaced — this time by the environmental community.
Environmental justice groups say that the regulatory plan that implements AB 32 doesn’t protect low-income communities of color from pollution. They’ve filed suit and a California superior court judge on January 21 issued a tentative ruling in their favor.
The case centers primarily on the “cap-and-trade” aspect of the regulation, which sets up a market-based system of trading emissions credits among polluting industries. Alegria De La Cruz, the lead attorney from the San Francisco-based Center on Race, Poverty, and the Environment, says that low-income communities of color living near refineries, power plants, and other polluting industries would see few benefits from cap-and-trade.
That’s because the program aims to allow a California plant to trade emissions allowances with industries in other states under the Western Climate Initiative, or they could purchase carbon offsets from elsewhere, like a tree farm in Canada.
“They’re going to let people from outside California take up the burdens of reducing greenhouse emissions or cutting them for polluters in California,” she says. “And those things are very problematic for environmental justice communities who are living right next to polluters and will suffer if polluters don’t stop what they’re doing.”
Carbon dioxide, a major greenhouse gas, has global impacts but does little to pollute the local environment. But industries producing CO2 emissions from burning fossil fuels also produce a range of conventional contaminants that burden the public health of nearby communities.
Ann Carlson, a UCLA law professor and faculty director of the Emmett Center on Climate Change and the Environment, says that under cap-and-trade polluting industries would not be allowed to worsen local air quality because of environmental laws like the federal Clean Air Act that set limits on conventional pollutants. Instead, she says she believes local communities may benefit.
“If you cap emissions and the emissions cap is sufficiently stringent, you’re going to have to reduce greenhouse gases from the largest sources,” Carlson says. “So I sense that large sources are likely to reduce emissions under cap-and-trade.”
The California Air Resources Board (CARB), in charge with implementing AB 32, has declined to comment on the environmental justice claims, citing the pending lawsuit. De La Cruz said the groups filed the lawsuit after hundreds of hours spent advising the board on the best ways to make the regulation work.
“CARB totally ignored them, which is why we’ve resorted to going to court,” De La Cruz says.
She cited a board meeting in which the implementation plan of AB 32, called the “scoping plan,” was approved. She said hundreds of people from the Central Valley showed up, having taken the day off work and driven upwards of five hours to get to Sacramento, only for the board to delay public comment to the end of the hearing.
“It was close to a 14 hour day for them,” she says. “There was a lot of frustration and that really highlights the way CARB has continued to marginalize people.”
The lawsuit argues that CARB violated the California Environmental Quality Act by failing to adequately consider alternatives to cap-and-trade before approving the scoping plan, among other complaints. De La Cruz said her clients want a good-faith effort to consider other options, such as direct regulation of emissions or a carbon tax system that would generate proceeds for rebates that low-income communities could use to pay for the higher energy costs.
Carlson says she thinks cap-and-trade a more effective option for greenhouse gas emissions than “command and control” measures.
“The general standard with command-and-control approaches is that they tend to be more expensive and less flexible,” Carlson says. “They don’t harness market forces and basically tell the polluter what to do.”
A carbon tax system should raise the same concerns among environmental justice advocates as cap-and-trade because polluters could pay for emission allowances, she says.
De La Cruz stresses that environmental justice groups do want to see AB 32 succeed. But not at their expense.
“It is truly upsetting and it is truly missing the point when something that could really reduce pollution, could really reduce CO2 and create green jobs in California for poor people is being misused and politicized in favor of polluters and in favor of the status quo,” she says.
On Tuesday both sides file another set of briefs and a final ruling could be forthcoming shortly thereafter, although an appeal could continue the case. If environmental justice groups win, CARB could be forced to go back and rework aspects of its scoping plan, possibly delaying implementation of some aspects of AB 32.