News

My colleague Jonathan Zasloff suggests that environmental justice groups are using litigation to try to get leverage for some sort of compensation or other measures, rather than to actually stop the state’s cap-and-trade program for greenhouse gases. I doubt that.  But what I do wonder — with no evidence, but I can speculate wildly on a blog, can’t I? — is whether this litigation actually might start the state on a path away from cap-and-trade.

One interesting feature of the court decision preventing the state from moving forward with AB 32 is that the court’s decision seems to halt implementation of the entire scoping plan.  As I’ll explain, this is an odd result, and one that may be legally required but doesn’t make practical sense.

The legal flaw the court found in the scoping plan – and the part of the plan the frustrates the environmental justice organizations that filed the lawsuit – is that the Air Resources Board didn’t properly consider alternatives to the cap-and-trade component of the scoping plan.  The court relied on this rationale in striking down the ARB’s decision to adopt the plan.

Ann is a little puzzled  about what the environmental justice community hopes to achieve by suing the state over cap-and-trade: why would a carbon tax be better? she asks. Sean says that we need to understand that the EJ community is deeply committed to a series of process-oriented goals, and believe that these goals have been violated.  Still, as he notes, it’s hard to see why a carbon tax or direct regulation would solve the problem.  And Dan suggests that the EJ movement might the Left’s answer to the Tea Party.

I suppose I’m more cynical than my three colleagues, and hope that the EJ movement is, too.

I have a few thoughts on environmental justice and the new court decision halting implementation of the AB 32 scoping plan, inspired by my colleague Ann Carlson’s post, and the comments on that post.  Reflecting on the environmental justice community’s successful (at least temporarily) attack on greenhouse gas emissions trading in California – and on the EJ advocates’ loathing of market-based solutions generally –   I don’t believe their positions  are internally inconsistent, naive, or cynical at all.  Rather, their opposition to AB 32 – and to emissions trading generally – is based on a set of values and principles that flow from their mission and goals, and I believe it’s quite rational. (Disclosure: I have represented Communities for a Better Environment through my law clinic on various matters.  This doesn’t affect my view of this issue, however.)

As Cara wrote yesterday, a California court has put AB 32 on hold temporarily on the grounds that in preparing its scoping plan, the California Air Resources Board failed to assess alternatives to its plan with appropriate detail.  In particular, the court took issue with CARB’s failure , under the California Environmental Quality Act, to assess carbon taxes as an alternative to an economy wide cap and trade scheme (though as both Cara and I have written, the court case should at worst delay AB 32′s implementation and the court rejected all of the plaintiffs’ substantive challenges to the scoping plan).