The latest legal challenge to California's landmark climate-change legislation isn't coming from big polluters faced with a series of new regulations. Instead, groups representing low-income residents are challenging the environmental law as unfairly burdening their beleaguered communities.
A handful of community groups, represented by the San Francisco-based Center on Race, Poverty and the Environment have filed a motion that could delay the implementation of parts of the Global Warming Solutions Act, also known as AB 32.
The groups suing the Air Resources Board argue in part that fledgling law violates the California Environmental Quality Act because the air board failed to provide any alternative plans. The plaintiffs also argue that the AB 32 "scoping plan," which establishes how to reduce air pollution, doesn’t meet the law's requirement to "achieve the maximum technologically feasible and cost effective reductions" to reduce greenhouse gasses to 1990 levels by 2020.
Brent Newell, an attorney representing the plaintiffs, argues the way the air board is implementing pollution reduction measures, "doesn’t protect public health, especially at-risk communities that live near major industrial sources." In a telephone interview, he said the plan "does not maximize the economic benefits to California from the policies associated with reducing greenhouse gas emissions."
Judge Ernest Goldsmith issued a tentative statement of decision [PDF] on Jan. 21, 2011, requiring the Air Resources Board comply with CEQA regulations to review the scoping plan before implementing the cap and trade system.
Two law professors at UCLA, provided an analysis and summary of Judge Goldsmith’s tentative ruling. Professor Ann Carlson wrote last week:
The CEQA portion of the ruling – should the judge stick with it when he finalizes his decision – is a setback for efforts to implement California’s law. But I think it’s worth emphasizing that it’s only a temporary setback and one that may not even have the effect of delaying the air board’s climate change plan.
The plaintiffs, which include six environmental justice organizations and seven individuals, argue that allowing industrial facilities to purchase carbon offsets to meet emissions limits – rather than reducing this pollution – can actually increase the amount of harmful and toxic chemicals emitted in the air, in addition to increasing carbon dioxide pollution.
AB 32 requires 360 businesses representing more than 600 facilities to limit greenhouse gas pollution or purchase offsets through a market-based system. The cap-and-trade program, which was approved by the board in December, allows companies that don’t meet their emission limits to offset the pollution by buying a carbon credit, or a promise to reduce pollution elsewhere. The carbon offsets currently allowed in the cap-and-trade system can come from projects located in other states, and in some cases, in Mexico.
Groups that represent low-income and minority communities argue that allowing a company to purchase offsets elsewhere while continuing to pollute in its current location can actually make the situation worse.
Newell, general counsel for the Center on Race, Poverty and the Environment, said because companies can purchase offsets from out of state, pollution reduction "doesn’t happen in California and doesn’t happen in the community that is burdened by this pollution. Cap and trade makes poor people into sacrificial lambs."
Other advocacy groups and proponents of the cap and trade system disagree. In a blog post last week, Tim O’Connor, an attorney and climate change policy analyst for the Environmental Defense Fund, wrote:
It’s worth noting that both (the Air Resources Board) and the California Department of Public Health evaluated the potential impacts of a cap-and-trade program and found that the regulation was not likely to cause any adverse impacts to public health and welfare – especially if money raised from the program is reinvested in California communities to help protect against the impacts of climate change.
Another argument posed by environmental justice groups is that the complexity of the cap-and-trade program prohibits most people from participating. Lawyers, engineers and industry lobbyists dominate the process, they argue. The Center’s Newell said, "Communities do not have the resources, and lay people do not have the expertise to participate. If California is going to further the broad goal of public participation and meaningful involvement in decisions that affect them, cap and trade is not one of those policy options."
Even though his clients don't agree with how the scoping plan establishes pollution reduction measures, Newell said, "they support reducing greenhouse gasses because they know global warming has negative and disproportionate effects in their communities; they are refusing to be sacrificed."
In a response filed with the San Francisco County court today, the Board presented its three-part objection to Judge Goldsmith's tentative decision. The first point of contention was the statement "which concluded that (the Air Resource Board's) discussion of alternatives to the scoping plan is inadequate."
The Board also disagreed that they "had improperly approved the scoping plan prior to completing its environmental rule," noting "the board has the legal authority to delegate and did actually delegate environmental review to the executive officer."
Finally, the board disagreed with the tentative decision to prevent implementation of the scoping plan, noting that the air board's "ability to enact regulations ... is not conditioned on final approval of a scoping plan."