New America Media, News Report, Ngoc Nguyen, Posted: Mar 14, 2011

SAN FRANCISCO—Last November, mainstream environmental groups and environmental justice groups joined forces to defeat a ballot measure that would have suspended California’s climate-change law. Now, the two sides are at odds—over the very same legislation they helped to save.

The rift was brought into sharp relief in January, when a San Francisco County Superior Court judge issued a tentative decision in a 2009 lawsuit by environmental justice groups that challenged how state regulators drew up their blueprint for carrying out the climate law. The state’s plan, in effect, put forth its cornerstone emissions-trading program— or cap and trade—as the prevailing policy for how to reduce greenhouse gases that cause global warming.

In the ruling—which could become finalized this week—the judge said that the state failed to consider alternatives to cap and trade, as required under a state environmental review law.

If the proposed ruling stands, the state will have to go back and conduct the analysis required under the California Environmental Quality Act (CEQA). This would be a major stumbling block in its plans to get a cap-and-trade program— the first of its kind in the country— going by next January.

The two sides teamed up last year to keep AB 32 intact, with both sides agreeing that a comprehensive policy to reduce greenhouse gases is important. But, hammering out the details to implement the law has been much harder.

“Within the environmental movement, there was this divide,” said Caroline Farrell, who directs the Center for Race, Poverty and the Environment, and is one of the individuals who brought the lawsuit.

Mainstream environmental groups advocated for an emissions-trading program as the most viable policy option for reducing greenhouse-gas emissions. Last December, state officials adopted regulations for a cap-and-trade program, in which the state sets a cap on emissions, requiring large polluters to cut their emissions. Over time, the cap would be lowered, until the goal is reached in 2020.

The Air Resources Board, which is in charge of implementing the law, will offer permits that allow businesses to emit a certain amount of pollution. Businesses that can’t meet the cap can buy credits from businesses that can reduce their emissions, or buy carbon offsets that reduce pollution someplace else in the world.

For this reasons, environmental justice groups have argued all along that emissions trading would create hotpots of pollution that would be more a burden for the poor and minorities. That’s because the state’s biggest emitters of greenhouse gases also spew other toxic chemicals into the air such as sulfur, nitrous oxide, and heavy metals.

A 2010 study by researchers at the University of Southern California, UC Berkeley, and Occidental College found that 60 percent of residents living near polluting power plants, oil refineries and cement kilns are people of color.

In the January ruling, the court sided with the environmental justice groups on two counts. It found that the air board failed to consider alternatives and did not adequately explain why it favored cap and trade. The judge also ruled that the air board wrongfully approved a scoping plan—a road map for implementing AB 32—before completing its environmental review.

After the court issued its tentative decision, the air board submitted its objections to the court. It has disputed both points in the proposed ruling, and requested a hearing. If the hearing is not granted, the ruling could be finalized this week.

Farrell says AB 32 includes provisions that mandate the state to consider whether the law could increase pollution in neighborhoods already burdened by poor air quality.

In fact, the air board set up an environmental justice advisory committee in January 2007 to help it develop a scoping plan that lessens the impact on the poor and minorities. Bill Gallegos, executive director of Communities for a Better Environment and a member of the committee, says the air board “ignored” the group’s recommendations.

"[The ARB] left us with no choice but to do it again,” said Gallegos, a plaintiff in the lawsuit. “We’ve got to get it right. The path [the ARB] has taken could actually harm communities of colors."

Plan for Mitigation Fund Draws Critics

To mitigate the impact on low-income people and minorities, some environmental groups championed the idea of setting aside a portion of revenues generated under AB 32 into a fund to help vulnerable communities respond and adapt to climate change impacts and create green jobs.

The Coalition for Clean Air partnered with the state NAACP and public health organizations to co-sponsor a bill to do just that, but the legislation was vetoed last year by Gov. Schwarzenegger. The air board approved a similar community benefits fund last December.

“Unless a community has resources to address issues, just doing analysis is not going to make any difference,” said Dr. Shankar Prasad, executive fellow with the Coalition for Clean Air in Sacramento.

Attorney Angela Johnson Mezsaros, a plaintiff in the lawsuit, says environmental justice groups were wary of a fund for mitigation efforts. She says they didn’t support an approach that lessens the impact of air pollution on neighborhoods. Instead, they wanted less pollution to begin with.

“We didn’t believe in the “golden inhaler” approach,” she said. “ [We’ll allow polluters to] put all this stuff into the community, but we’ll make sure you have a golden inhaler to get you through.” She says environmental justice groups say the best approach is to impose laws that force polluters to stop releasing toxic chemicals into the air.

Adrienne Bloch, an attorney with Communities for a Better Environment in Oakland, says the air board approached cap and trade as a “fait accompli,” and didn’t make a good-faith effort to consider other options such as “a cap without trading or other market-based mechanisms, like carbon fee or direct rebates to Californians.”

While the effectiveness of emissions-trading programs to reduce greenhouse gases is still a question mark, Gallegos says, direct regulation has proven effective in reducing air pollution. In perhaps the dirtiest air basin in the nation, Los Angeles has cut its levels of smog “as a result of a strict regulatory regime.” And, he pointed to regulations that ended oil refinery “flaring”— emergency release of excess gases that build up. His organization tracked the flaring events and found refineries regularly spewed gases and other toxic chemicals, not just in emergencies.

“These refineries were doing flaring all the time. They don’t want to invest in technology to control emissions,” he said. “We finally won the strictest [regulations against flaring] in the country, and non-emergency flaring went to zero.”