When the implementation of California’s Global Warming Solutions Act, AB32, came to a grinding halt due to San Francisco Superior Court’s March 17, 2011 ruling that it violated the California Environmental Quality Act (CEQA), it came as a shock to industry and environmentalists alike. It would not be surprising if leading-edge environmental legislation like AB32 were to draw fire from climate-change deniers and oil interests. Indeed, the most recent attempt to derail the law, last year’s Proposition 23, was pushed by two out-of-state oil companies. Voters, mobilized in large part by grassroots climate justice groups, roundly defeated that attempt.
But the lawsuit against California Air Resources Board’s (CARB) regulatory framework for AB32 was undertaken by the Center for Race, Poverty and the Environment (CRPE) and Communities for a Better Environment (CBE)—two groups that advocate on behalf of “frontline and fence-line environmental justice communities.” They represent low-income people and people of color who live, work and play in the shadow of refineries in Wilmington and Richmond, in the agribusiness fields of the Central Valley, near the waste dumps of Kettleman City, and in other California communities plagued by industrial pollution.
More surprising still, CARB’s regulations are raising hackles among another unlikely constituency: indigenous peasant farmers in the remote jungle of southeastern Mexico.
Why should a law intended to reduce greenhouse gas emissions come under attack from precisely those groups most impacted by toxic pollution? And why is it of concern to subsistence farmers in remote Mexico? The answer is complicated, but it hinges on the fact that, from the perspective of those most vulnerable to the impacts of climate change and to the fossil fuel industry, cap-and-trade programs move the decision-making authority on environmental health beyond community control and into the so-called market.
Behind the Lawsuit
Rafael Aguilera is an environmental justice advocate, principal of his own consulting firm, the Verde Group, and a strong critic of AB32’s implementation plan. Aguilera was not always so critical, however. Before AB32 was passed by the legislature and signed into law in 2006, he worked with the nonprofit Environmental Defense Fund to help shape the bill. But sharp concerns about the recently approved cap-and-trade regulations approved by the CARB led him to jump back into the AB32 fray, this time to halt its implementation. In a recent talk at UC Berkeley’s Goldman School for Public Policy, Aguilera and Alegria De La Cruz, legal director of the Center on Race, Poverty and the Environment, made it clear that while they support aggressive action on climate change, their concerns about AB32 are focused largely on who benefits from the law and who does not.
Aguilera began by showing a graph of the rising numbers of heat-related deaths among California’s farm workers. “Current predictions for the Central Valley are three-month long heat waves—temperatures above 105 degrees in the summer months,” he said. Then he put up a slide of Maria Isabel Vasquez Jimenez, a pregnant 17-year-old farm worker who died of heat stroke near Stockton in the summer of 2008.
“Look at this face,” he told the audience. “Maria Isabel is the face of climate change.”
“Clean Air Act laws are supposed to protect public health,” Aguilera said. “In the context of new carbon regulations, such as the cap-and-trade provisions proposed in AB32, many of us assume those laws are being implemented. But they’re not.”
Impact of CARB’s Regulations
De La Cruz, one of two lead attorneys on the case, then told the story of how communities from across California had traveled to Sacramento to testify before the CARB, only to leave without having had the opportunity to speak. One of their chief concerns was that the cap-and-trade provision in AB32 would do nothing to reduce pollution in the most impacted communities.
“The impacts of these policies are happening to very specific populations because of their race and because of their class,” De La Cruz said. “For our communities, a pollution trading system violates not only the intent of AB32, because cap-and-trade has such serious implications for fence-line communities, it also violates the letter of AB32.”
A young but seasoned advocate, De La Cruz is a Yale Graduate and a child of California farm workers. Under the implementation plan for AB32, which was approved by the CARB in December 2010 but held up in court three months later, up to 20 percent of the state’s total mandated emissions reductions would be achieved through carbon trading, rather than through actual cuts in industrial pollution at the source. This means that industries would be allowed to delay efforts to reduce carbon dioxide emissions—along with the associated toxic co-pollutants—by purchasing carbon permits.
Environmental justice advocates charge that such carbon trading schemes leave lower-income communities of color to continue bearing the brunt of industrial pollution. “The harm that our communities will suffer from a poorly made plan will be greater than the harm of not reducing emissions in a way that’s responsible, that’s legal, and that really reflects the intent and the spirit of AB32 in the first place,” De La Cruz said.
According to a March 2009 UC Berkeley study by David Roland Host, based on the draft regulations proposed by CARB, using out-of-state offsets would actually increase California's air pollution in five out of six pollution categories.
California forest defenders also charge that the plan gives too good a deal to the state’s timber industry by giving carbon credits to wood products and condoning clear-cutting. (See story on page 83.) The San Francisco Superior Court’s March ruling against AB32 requires that, to comply with CEQA, the Air Resources Board must consider alternatives to cap-and-trade.
“AB32 requires that the plan include maximum feasible and cost-effective measures,” De La Cruz said. “The scoping plan didn’t show the range of possibilities of what makes the most economic sense for California. When they chose to include pollution trading as a huge portion of the plan, CARB clearly failed to show that cap-and-trade met those standards.”
Response from CARB
Two weeks after Aguilera and De La Cruz spoke about the lawsuit at UC Berkeley, Virgil Welch, special assistant to the Chairperson of CARB, gave a talk at the same venue, defending cap-and-trade.
“You have to understand what we’re doing here in California, in the national context,” Welch said. “It’s really not just about emissions reductions. What we’re talking about is a permanent shift toward a less carbon-intensive economy, and more sustainable transportation and land-use policies. What we’re talking about is a long-term transition, and not just the immediate emissions reduction goals.”
“This is really one of those policies that provides a price signal that will help us move to the next level of investment in energy efficiency. It’s no mistake that states like Massachusetts and California that have very strong environmental policies also have the vast majority of investment flowing into them from the clean tech sector. While there’s an environmental imperative, there’s also an economic imperative,” Welch explained.
The question, from the perspective of the low-income communities who live with the greatest impacts of environmental contamination is, an economic imperative for whom? Indeed, while AB32 attempts to reduce emissions without restricting the state’s economic interests, what does it do to meet the environmental imperatives of those for whom clean air is a matter of life or death?
Outsourcing Global Warming Solutions
While the pollution-trading piece of California’s Global Warming Solutions Act has roused the ire of environmental justice advocates in the state, the question of carbon offsets has also raised concerns south of the border, where another set of “low-income communities” are already being impacted by the legislation.
One of former Governor Schwarzenegger’s last acts in office, just a week before the United Nations Conference on Climate Change in Cancún, Mexico, was to sign agreements with the states of Chiapas, Mexico and Acre, Brazil for a state-to-state cap-and-trade agreement to be part of AB32.
As Welch explained, “Offsets are a mechanism used in a cap-and-trade program to try to achieve reductions in the sectors outside of the capped entities—that is, outside the polluting industries. CARB has adopted several offset protocols, one being forestry. From our perspective, it’s a protocol that incentivizes practices that will increase the capacity of forests to store carbon.”
The agreements with the two foreign states, as set out in Memoranda of Understanding signed in Davis on November 16, 2010, are based on a policy mechanism known as “Reducing Emissions from Deforestation and Forest Degradation,” or REDD. In theory, it works like this: Because trees capture and store CO2, when they are burned or felled, the CO2 they contain is released, and their potential for capturing CO2 from industrial emissions is lost. Thus, maintaining intact forests is essential to mitigating the impacts of the climate change.
But until now, there has been little economic incentive for protecting forests. With the creation of a vast market for trading pollution permits, such an incentive now exists. Those who protect forests can earn carbon credits—financial rewards based on an assessment of the amount of CO2 a forest can store and a market-derived price per ton of carbon. They can then trade these credits to industrial polluters for cash, thus generating revenue that, in theory, gives governments and forest-dwelling communities around the world an incentive not to cut down trees.
Policy-makers at the global level see REDD as an exciting new strategy to address the climate crisis without jeopardizing economic growth. Efforts to develop implementation protocols for REDD have been central to U.N. climate negotiations since it was first announced in Bali, Indonesia in 2007. It enjoys broad support from the World Bank and large environmental organizations like the Environmental Defense Fund and Conservation International. But, since it was first unleashed, the policy has met with protest from indigenous groups whose lands are being targeted by the scheme, but who have had no part in designing it.
By forging an agreement to implement the “trade” part of AB32’s “cap-and-trade” protocol through REDD, former Governor Schwarzenegger set in motion a process that climate justice advocates charge will not only fail to reduce industrial contamination in California, but could lead to land grabs and forced displacement of poor communities in Chiapas and Acre.
In Chiapas: Payment for Environmental Services
Chiapas, on the border with Guatemala, is Mexico’s poorest and most indigenous state, with a long history of conflicts over land. In the Lacandon jungle, an area of the state where indigenous peoples have for centuries faced forced removal from their territories, REDD is already touching on old conflicts.
The Lacandon is best known around the world as home to the Zapatista Army of National Liberation (EZLN), the rebel group that emerged in Chiapas in the 1990s in response to NAFTA. Less well known is that one of the factors that led to the emergence of the EZLN was a historic land grab that came under the pretext of forest protection. In the 1970s, a series of presidential decrees gave vast portions of the Lacandon jungle to the 66 families of the Lacandon tribe, as well as an arbitrary grouping of members of the Tzeltal and Ch’ol ethnic groups. The bureaucratic entity that was given ownership of much of the jungle became known as the Lacandon Community.
Now, as REDD program implementation begins, the government of Chiapas is paying landholders in the Lacandon Community 2000 pesos (around USD 200) a month to protect the forest. These payments are part of a renewed government effort to delimit “natural protected areas” in order to generate carbon credits.
On March 20, 2011, the Mexican newspaper La Jornada reported that “The State government authorized a monthly payment; however, this is merely to allow the completion of the forest inventory so that [members of the Lacandon Community] can access federal and international funds, as well as complement these funds with projects, such as agricultural conversion… with species, such as oil palm and rubber.”
What this means in practice is a mandate for those receiving the money to cease planting their traditional crops (which are seen as harmful to the jungle), and to increase patrolling of their territory against outsiders, designated as “invaders.” Those invaders, generally speaking, are indigenous communities who have never had formal title to the land, but who have been settled in the region for hundreds, if not thousands of years.
The village of Amador Hernández lies precisely on the border of the Lacandon Community. In a note that the villagers composed on March 25, 2011 they wrote, “This past month, the governor of Chiapas traveled to the neighboring Lacandóna Community to make the first payments of the state-run REDD program. As he doled out the money, he told the beneficiaries that it should not be considered as a gift, but as a payment to guard the border against their neighbors—that is, us.”
Villagers from Amador Hernández charge that the state government has withdrawn all medical services to the village (leading to several deaths) as a way to force them to negotiate or move.
Santiago Martinez, a health worker in Amador Hernández, voiced a popular sentiment among his community: “They’ve always tried to find ways to prove that we, as indigenous peoples, are the cause of the problem. But global warming is the fault of the factories, of cars, of industrial production. We get around by walking, we move our products on horseback, on mules, and we produce what we need to eat ourselves. In contrast, they use gasoline, their industries burn petroleum everyday. This is the main source of pollution and of climate change.”
Martinez’s complaint echoes that of communities in California. CARB’s decision to outsource global warming “solutions” is forcing his community, one of the poorest and most marginalized in the entire hemisphere, to bear the burden for problems they had no part in causing.
Communities Demand Real Solutions
Signs of conflict in Chiapas may dim the prospects of success for the California-Chiapas REDD program. But, with California’s regulators set on outsourcing pollution rather than attacking emissions at the source, it appears that those promoting cap-and-trade will try to override the protests of frontline communities like Amador Hernández, or for that matter, Richmond, California.
“They think because they’re rich and they have a lot of resources, they can do whatever they feel like,” said Santiago Martinez. “They are promoting the idea of giving carbon credits to these industries, so they can continue contaminating.”
Bill Gallegos, executive director of CBE, had a similar message in a statement he released when filing the latest round of papers before the court: “We want to strengthen AB32 and ensure that it is effective; a hard and honest look at cap-and-trade is critical to getting there. Our communities demand real solutions for reducing pollution emissions, not another scheme that makes market traders rich at the expense of our health.” Not surprisingly, this sentiment seems to ring true for impacted communities on both sides of the border.
Jeff Conant is the communications director at the Global Justice Ecology Project. His most recent book is A Poetics of Resistance: The Revolutionary Public Relations of the Zapatista Insurgency.