We haven't heard too much yet from Governor Jerry Brown on his climate plans, other than that, you know, he backs having some, in general. But that's probably going to change now that a San Francisco Superior Court judge has ruled that - while most of AB 32 plans can go forward - the state needs to do a real, comprehensive, deep analysis of its centerpiece plans to cut carbon to 1990 levels by2020 under AB 32.
California chose cap-and-trade over...well, I guess over a carbon tax, though there was little to no meaningful public debate about that. Which was a problem for the Environmental Justice advisors to the state's climate change policies. They've been beating the same drum since they were convened in 2007. Their concern has been the potential benefits and harms to poor, vulnerable, and often racially diverse communities of carbon reduction plans. In 2008, AB 32 EJ advisory committee chair Angela Johnson Meszaros wrote to CARB chair Mary Nichols:
The apparent complete lack of a rigorous methodology for considering the law’s requirements is deeply troubling and can only lead to a failure to have the information available to truly understand, avoid or minimize impacts of AB 32’s implementation on low-income communities and communities of color in California, as well as to maximize the benefits and minimize the harms to all people and businesses of California.
An informal, broader community of EJ advocates in California put out a resolution early on in the AB 32 scoping process saying they support carbon cutting policies - "only if they directly and significantly reduce emissions, require the shift away from use of fossil fuels and nuclear power, and do not cause or exacerbate the pollution burden of poor communities of color in the United States and developing nations around the world." And they object to cap-and-trade specifically:
...such a program will not reduce greenhouse gas emissions at the pace called for by the international scientific community, it will not result in a shift to clean sustainable energy sources, it will support and enrich the state's worst polluters, it will fail to address the existing and future inequitable burden of pollution, it will deprive communities of the ability to protect and enhance their communities, and because if our state joins regional or international trading schemes it will further create incentives for carbon offset programs that harm communities in California, the region, the country, and developing nations around the world.
Even once the cap-and-trade program was a fait accompli, its specific details were to be worked out. EJ advocates objected to the fact that agriculture sector emissions were left out. They wanted emissions burdens analyzed in terms of their impacts on people, rather than sectors. And a letter Meszaros wrote to the state emphasized the limits they wanted put on offsets:
For urban areas of the state, the failure of ARB to include measures to reduce emissions from powerplants, refineries, and other industrial sources means that ARB is turning its back on these severely negatively impacted communities. Allowing trading and offsets that will result in continued emissions in exchange for reductions (or tree preservation) elsewhere simply compounds the injury to these communities.
Just before the ruling, the Sierra Club called on Brown to take a second look at the state's plans, in a letter. (They made sure he would read the letter by telling him he's "well-suited to the task of scrutinizing and revising the cap-and-trade rule adopted by the previous administration.")
The LA Times summed up the Sierra Club's criticisms in that letter of cap-and-trade thusly:
Among the club’s complaints: industrial plants would be allowed to avoid curbing their own pollution by purchasing offsets from out of state, and possibly foreign-nation projects that reduce carbon dioxide emissions in other ways. “Excessive reliance on offsets could open up loopholes that undermine the very purposes of California’s AB 32 cap on emissions,” the letter said. “Curbing global warming will require a fundamental transformation of our energy economy, a task that cannot be outsourced to other countries.
Mainstream national environmental groups and environmentalists tend to suggest that EJ folks are making mountains out of molehills. Here's Grist's David Roberts with his view on why the EJ groups don't have a legitimate beef:
First, while it may be true that there should be legislation preventing the clustering of polluting facilities in low-income areas, it is somewhat odd to sue a cap-and-trade program for not being that legislation. Cap-and-trade isn't designed to do that and as far as I know no advocate has claimed otherwise. It's like suing an aardvark for not being a giraffe. It may be that California should have passed command-and-control regulations that would mandate pollution reductions at each individual facility. Perhaps, by addressing existing inequities, that would produce a better outcome from a social justice perspective (though I don't think it would).
But that's different from saying cap-and-trade creates those inequities. Why should we think that? Dozens of things go into siting a facility, and pollution regulations, of whatever kind, are generally a marginal consideration. What attracts dirty facilities to low-income communities is cheap land, desperation for economic development, and unorganized, politically powerless residents. Cap-and-trade didn't cause that and it will take more than environmental regulations to meliorate it.
Secondly, as it happens, new research indicates that cap-and-trade systems do not create hotspots or exacerbate inequality. In the acid rain cap-and-trade program, facilities in low-income neighborhoods bought fewer permits, not more. That's not dispositive, of course -- nobody's entirely sure how the various pieces of AB 32, and all the rest of California's aggressive energy policies, are going to interact. But it's suggestive.
Now, his view matters not to the legal case at hand. Nor, in fact, does the meat of the EJ argument. A judge has now decided that the procedural scrutiny required by CEQA wasn't applied to the cap-and-trade decision. That ruling is a psychological blow, but I like Cara Horowitz's analysis of the likely appeals here and her description of the cap and trade schedule as "rocked but not swamped."
What I see in Roberts' analysis, and in the difference of opinion about cap-and-trade between say, Communities for a Better Environment, and the NRDC, is a growing schism in the community of groups looking at cap-and-trade and carbon cuts in California. And that, above all else, is making me wonder when Governor Brown is going to make his priorities clear for this law. As he came into office, green groups characterized his stance on AB 32 as "ambiguous." Earlier this year, at a rountable discussion about AB 32 at Navigating a Carbon World, Mary Nichols talked a little about legal challenges, and here's how I wrote about her remarks then:
A judge's order means the state likely must review carbon emissions pricing again for environmental impacts – unless both sides compromise. Nichols sounded an impatient tone about more changes ahead. "We have to be open to the possibility that there could be other ways to get reductions," she said. "Certainly the current governor deserves a chance to put his mark on the program and decide if he wants it to change in some ways."
Whether Governor Brown wants to make his mark still seems his choice. If the schism between EJ and mainstream enviros gets uglier, it might not seem that way forever.