Environmental Justice and GHG Cap-and-Trade: It's More than a Complaint

by Alice Kaswan

June 13, 2012

California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution.

While the complaint reflects real concerns about the distributional impact of a GHG cap-and-trade program on associated co-pollutants, it’s important to keep the complaint in perspective.  Neither it, nor previous lawsuits, present the multi-faceted set of environmental justice arguments on GHG cap-and-trade. An earlier suit challenged the sufficiency of the state agency’s alternatives analysis under California’s environmental review law, and this claim raises potential disparate impacts under Title VI. The legal claims reflect available causes of action, and should not be taken as the full measure of the groups’ opposition to cap-and-trade.

For example, California environmental justice groups mistrust the basic effectiveness of cap-and-trade given a history of problems in RECLAIM, a southern California criteria pollutant trading program, weaknesses in the ETS, Europe’s GHG trading program, and the current “slack cap” in the northeastern states’ RGGI program. Another concern is that cap-and-trade programs lack the participatory features of traditional permitting processes.  The greater administrative efficiency and flexibility that industry celebrates cut off the slow, individualized, public-hearing process that allows local communities to participate (however weakly) in the emissions decisions of the facilities in their midst. Thus, it would be a mistake to attempt to discern the complete “environmental justice” position on cap-and-trade solely from the causes of action articulated in the lawsuits.

Turning to the merits of the Title VI complaint, a key concern is that we simply don’t know what will happen to emissions under a trading program.  Under a regulatory approach they would be broadly distributed, while under a trading program – who knows?  And while the EJ groups are concerned about potential emissions increases and the capacity of existing laws to restraint them, they are also concerned about the distribution of co-pollutant reductions.  GHG regulation offers significant potential to reduce both GHG and co-pollutant emissions.  Where will that happen and who will benefit? The EJ community would like the benefits of GHG regulation to go where they are most needed.

I do not claim to represent or even fully share the EJ perspective, but write here simply to clarify potential misinterpretations arising from the litigation.  I have argued elsewhere that the issue raised by the complaint - whether direct or market-based regulation would offer the most ancillary co-pollutant benefits - defies easy answer. (See “Climate Change, the Clean Air Act, and Industrial Pollution,” recently published in a symposium issue of the UCLA Journal of Environmental Law and Policy, an accompanying blog post, and the Perspective I wrote on incorporating EJ into GHG trading programs.) Regulatory and market-based approaches each offer certain co-pollutant advantages and disadvantages, the significance of which depends upon how each program is implemented.

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Also from Alice Kaswan

Alice Kaswan is a Professor at the University of San Francisco School of Law, and a member of the board of directors of the Center for Progressive Reform.

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