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Science, Law & the Environment Emerging Topics in Environmental Law

Civil Rights Watch: Is California’s Cap and Trade Program Discriminatory?

Posted in Cleanup & Superfund, Climate Change, Emerging Policy

Last week, the Center on Race, Poverty and the Environment and other environmental groups filed a complaint with EPA’s Office of Civil Rights alleging that California’s cap and trade program is discriminatory because it allows for the purchase of emission credits, essentially allowing emitters of greenhouse gases to avoid emission reductions in low-income areas.

The Center on Race, Poverty and the Environment has used this tactic before, perhaps most famously to challenge the application of methyl bromide to strawberry crops in California. There, the Office of Civil Rights found that methyl bromide was applied to areas with schools that had high Latino populations, and that this was a prima facie violation of Title VI of the Civil Rights Act of 1964. Ultimately, California’s Department of Pesticide Regulation settled with EPA’s Office of Civil Rights, committing to a variety of measures to remedy the violation of Title VI.

I’m skeptical that the latest complaint filed by the Center on Race, Poverty and the Environment will be as successful as the methyl bromide complaint. California’s cap and trade program regulates greenhouse gases, carbon dioxide, methane, nitrous oxide and various fluorinated gases. All of these gases may have global impacts from a climate change perspective, but–unlike methyl bromide–lack a local impact. Communities surrounding emitters of greenhouse gases may face other issues from combustion products (ozone, particulates, etc.), but none of these emitted substances are regulated by California’s cap and trade program. Therefore, I’d anticipate that the Office of Civil Rights may reject this complaint following this reasoning.

These types of civil rights complaints may become more common mechanisms for challenges to EPA actions. For instance, environmental justice concerns have become common considerations in cleanup decisions under CERCLA. CERCLA’s plain language would bar a challenge to those decisions until the remedial action is completed, but I could see a Title VI complaint being a potential end-around to that challenge. Such a complaint would lack the force of a challenge in a federal court, but could nonetheless put significant pressure on a a regional administrator to shape a cleanup in response to the complaint. Just as the Center on Race, Poverty and the Environment seems to be using Title VI complaints as part of a broader strategy to shape environmental policy in California, I wouldn’t be surprised to see other environmental groups try this in the cleanup context. Stay tuned . . .