The first article in this series questioned whether environmentalists will stand in the way as California gears up to meet the requirements of Assembly Bill 32, more commonly known as the Global Warming Solutions Act. With some research, it would appear that answer is “yes.”
The first round of reductions mandated by AB 32 are scheduled to be in place in slightly over six months. However, two of California’s environmental watchdog groups, or “environmental justice legal organizations” as the groups prefer to be called, sued the California Air Resources Board (CARB) over the cap-and-trade component of the Climate Change Scoping Plan to Reduce Greenhouse Gases in California.
The far-reaching legislation does not reach far enough for the liking of these environmental groups. According to the website for the Center on Race, Poverty and the Environment (CRPE), “The Board must also confront the fact that Cap and Trade violates Californians’ civil and environmental rights. The communities of Richmond and Wilmington, host communities for refineries, exemplify the fact that in California your zip code determines your health. Study after study has shown that if you are Latino, African-American, or Asian-Pacific Islander, you are much more likely to live in a zip code that hosts California’s major pollution facilities than if you are white.”
CRPE represented the Association of Irritated Residents, Coalition for a Safe Environment, Society for Positive Action, West County Toxics Coalition was well as several individuals. Communities for a Better Environment represented itself and its members. The lawsuit sought a writ of mandate to prevent CARB from going ahead with the cap and trade program.
On May 20, 2011, a Superior Court judge in San Francisco, Hon. Ernest Goldsmith, ruled partially in favor of the two environmental groups and against the CARB when he ruled that “ARB committed a prejudicial abuse of discretion when it failed to proceed in a manner require [sic] by law by inadequately describing and analyzing Project alternatives sufficient for informed decision making and public participation.” He further determined that CARB had violated the “informational requirements of CEQA” and ordered a peremptory writ of mandate to issue requiring CARB to set aside its resolution and executive order as it relates to cap and trade until it is in complete compliance with CEQA requirements. In other words, he ordered CARB to provide a detailed examination of all options for controlling emissions, including a direct tax on them. He ruled in favor of CARB on the remaining six causes of action.
According to a press release issued jointly by the two groups, “We are encouraged that the Judge is now requiring CARB to take a hard and honest look at cap and trade,” said Bill Gallegos, Executive Director of Communities for a Better Environment, one of the environmental justice plaintiffs in the lawsuit. “We have even more evidence now that cap and trade does not work to reduce greenhouse gas emissions. In the European Union, emissions have increased by 3% in the past year under their program, and we also know that cap and trade has the worst impact on health in low income communities and communities of color,” Gallegos added.
On Monday, CARB released a revised analysis. In its press release, representatives for CARB state, “ARB disagrees with the trial court finding and has appealed the decision. However, to remove any doubt about the matter, and in keeping with ARB’s interest in public participation and informed decision-making, ARB is revisiting the alternatives.”
“The revised analysis includes the five alternatives included in the original environmental analysis: a “no project” alternative (that is, taking no action at all); a plan relying on a cap-and-trade program for the sectors included in a cap; a plan relying more on source-specific regulatory requirements with no cap-and-trade component; a plan relying on a carbon fee or tax; and, a plan relying on a variety of proposed strategies and measures. The revised analysis relies on emissions projections updated in light of current economic forecasts, accounting for the economic downturn since 2008 and reduction measures already approved and put in place.”
These revisions, however, do not satisfy cap and trade opponents at the CRPE. The group wants new options and has a history of not accepting compromise. As we will examine in future articles, CRPE has had its share of success in tying up projects it deems unacceptable through use of the legal system. Its own website suggests that the organization does not support cap and trade in any form. Now that cap and trade is dead at the national level, all eyes are on California. Most policy makers predict it will go forward once CARB proves to Judge Goldsmith the thoroughness of its analysis. That is expected to occur before the January 1, 2012 deadline for implementation of AB32.
In the meantime, CARB is accepting public comments until July 28, 2011. The comments can be submitted electronically at: CARB Comments. It is scheduled to reconsider its approval of cap and trade on August 24, 2011.