A recent Update from ML Strategies (a consulting affiliate of law firm Mintz Levin) tipped us off to an interesting case that pits California’s proposed carbon cap-and-trade system against two environmental justice groups.
Environmentalists were largely united in their excitement over the passage of California’s Global Warming Solutions Act (more popularly known as AB 32), which was signed into law by Governor Schwarzenegger in 2006. The Act directed the California Air Resources Board (CARB), to develop regulations and market mechanisms that would help the state meet its goal of a 25% reduction in greenhouse gas emissions by 2020.
However, the cap-and-trade program that CARB proposed as part of its implementation of AB 32 created a sharp rift among those environmentalists. While many were elated to see the plan take shape, some saw the cap-and-trade program as the “industry-preferred” approach – one that does not require polluters to reduce emissions, rather allowing them to buy “reductions” from other polluters. Opponents of cap-and-trade argue that these polluters are “disproportionately located in low income communities of color.” A 2010 study by the University of Southern California affirms this argument.
In 2009, a group of individuals, along with attorneys from the two environmental justice groups, Center on Race, Poverty & the Environment and Communities for a Better Environment, filed a lawsuit against CARB, arguing that it had violated the California Environmental Quality Act (CEQA) when it failed to analyze and consider alternatives to the cap-and-trade program prior to implementation of AB 32.
(It’s interesting to note that representatives from both the Center on Race, Poverty & the Environment and Communities for a Better Environment sit on CARB’s Environmental Justice Advisory Committee, though perhaps this speaks to the limited influence the Committee ultimately has on CARB’s implementation plans.)
Less than two months ago, a San Francisco Superior Court judge ruled in favor of the petitioning environmental justice groups, and enjoined CARB from any further implementation of AB 32 until it “has come into complete compliance with its obligations under its certified regulatory program and CEQA.”
Pursuant to the judge’s decision, the petitioners were ordered to submit proposed documents (“Writ of Mandate”) to finalize the Court’s order. As explained in the accompanying letter, these proposals limit the scope of the injunction to include only the development and implementation of the cap-and-trade program, in order to allow “the good part” of AB 32 to move forward.