Climate Change and the Environmental Justice Shakedown

I don’t mind shakedowns, but you’ve got to be smart about it.

California’s climate change legislation, AB 32, is the far-reaching global warming legislation in the United States, and a model for states (and maybe even the EPA) that want to work aggressively to reduce carbon emissions.  Unless, that is, some environmental justice groups have anything to do with it.

Yesterday, a trial court enjoined the California Air Resources Board (CARB) from moving ahead with its proposed regulations, on the seemingly-odd grounds that CARB had not properly analyzed the alternatives to its cap-and-trade program.  The plaintiffs, an environmental justice group with the picturesque name of Association of Irritated Residents (“AIR,” get it?), proposed either a carbon tax or direct regulation of carbon emitters.  Since CARB had not fully analyzed these alternatives, the court said, it could not move ahead until it did so.

Now, you might well ask: why do environmental justice groups think carbon taxes or direct regulation are better than cap-and-trade?  Answer: they don’t.  If you’re a plaintiff trying to stop a project, then you try to come up with anything legally infirm about the environmental review documents.  They just want to stop the project, and so they are throwing anything out there that they can, and seeing what sticks.    When I was in private practice, my firm represented the Los Angeles Airport Department, which was trying to expand LAX: homeowners’ groups near the airport trying to stop expansion all of a sudden started talking about the highly endangered El Segundo Blue Butterfly, which I’m sure that they had never heard of and cared about less.

This isn’t always bad, particularly when it comes to advocates for low-income people.  A few years ago, when the developer of the Staples Center issued the Draft Environmental Impact Report, the “Figueroa Corridor Economic Justice Coalition” sent in hundreds of critical comments, making it very clear that they would challenge the project.  But the project couldn’t wait: Staples had to be ready in time for the 1999-2000 season.  So they settled, creating a Community Benefits Agreement that stands as a model for similar agreements around the country, and has really helped the low-income communities of color near the arena.

To me, this looks like a similar strategy.  One could argue that the EJ groups hate cap-and-trade because carbon emitters, which also emit localized “criteria” pollutants, will just buy carbon offsets or more permits and keep on polluting.  But a carbon tax on this score wouldn’t be any better, especially because carbon tax systems will run into problems with exemptions and offsetting credits: it’s easy to compare a messy, real cap-and-trade system with a theoretically perfect and pristine carbon tax.  And direct regulation will be a lot more expensive, making it more difficult to harvest any benefits for nearby low-income communities.

So the “shakedown” continues.  Maybe the environmental justice advocates want CARB to use the permit charges for their clients and similarly-situated people.  But why should CARB agree?  It has time, unlike Staples Center or a private developer anxious to retain its financing.  It will just do the analysis, come out the same way, and move ahead, just a couple of years later.

I’m not necessarily opposed to shakedowns: another way to characterize it is “leverage.”  But when the future of the planet is at stake, for self-described environmental activists to do it is too cynical even for me.  And because climate change will most severely impact extremely poor people of color in sub-Saharan Africa, India, and Indonesia, to call it an “environmental justice” issue really doesn’t even pass the laugh test.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

5 thoughts on “Climate Change and the Environmental Justice Shakedown”

  1. California setting up its own cap and trade regime looks to me like silly preening. The carbon whose consumption will be avoided in Cali will be burned in India or China or Brazil. I am a ‘theoretically perfect and pristine; carbon tax fan – it has the great advantage of raising money! which we desperately need to fund pensions, and universities, and roads. Like you, I see this as a shake-down, but I don’t see the cap and trade as a plus, so I am happy to see it stymied.

  2. I’m with you, but I must agree that a cap’n trade is more favorable to MNCs ready to game the system than a straight carbon tax. That is why the GOP made destroying the EPa the first order of business upon gaining power.

  3. I missed the part in CEQA’s preamble where the Legislature expressed its sense that it would serve the people of California to facilitate shakedowns.

  4. I think CBE genuinely believes that a carbon tax, even a politically-compromised carbon tax, can better avoid hot spots than cap-n-trade. I think they might be right, but it’s not politically viable.

    And CBE is right that CARB messed up CEQA procedure, approving cap-n-trade first with CEQA as an afterthought. I noticed the city of San Jose do the same thing with plastic bag ban. Fortunately, it’s too late to sue San Jose at this point.

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