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Frank Lopez: How are the plaintiffs going to ensure that the criteria chosen to evaluate the alternatives are going to be more equitable?
Alegria De La Cruz: Part of what is exciting to us about being able to open this [up], is that there’s a lot more information available around the failures of trading processes in other areas, but also specifically in California. CEQA doesn’t require specific criteria to be used when you’re doing alternatives analysis, but because this is going to be such a highly-watched big-deal process, it is going to put the impetus on CARB to make sure that they are doing something that’s defensible.
Because the judge was so focused on the real failures of CARB to do a good job in looking at an alternative to cap-and-trade, it provides a lot of leeway to address the things that he raised in the order and make sure that CARB is doing that.
Lopez: Is there an alternative that CRPE prefers to cap-and-trade?
De La Cruz: Anything.
Lopez: Anything but cap-and-trade?
De La Cruz: Any time you allow “flexibility” or the “market” to determine the best way forward, that’s when we really see environmental justice communities suffering, no matter where they are located.
At our own advocacy organization, outside of this litigation, the communities that we represent are largely in the Central Valley. We see a lot of challenges to CARB’s lack of regulation of the agricultural industry. [Our communities are located near] oil refineries near Bakersfield and in the South Kern [County] area, so we’re looking at industrial regulation.
Lopez: Can you explain what you mean by direct regulation?
De La Cruz: Sure. In the agricultural industry, for example, mega-dairies are in real need of deeper regulation. Huge waste lagoons evaporate into the [open] air. Fermenting silage is another of the huge emitters of greenhouse gas in the Central Valley. It’s methane, which is more greenhouse gas creating than carbon dioxide is. So, enclosing silage piles and waste lagoons—having those be covered, vented, a bio-filter attached—would really lower some of their emissions.
Lopez: So, how would it differ with the cap- and-trade system?
De La Cruz: One of the funny things about the [CARB cap-and-trade] system is that agriculture would be a source of offsets. You could pay a dairy to install bio-filters as part of an offsets program, you could pay a dairy to enclose its silage or its lagoon, and then call it an offset.
Agriculture wasn’t directly regulated because [CARB] said that the processes associated with agricultural emissions were so complicated that they couldn’t measure the actual emissions.
But at the same time, they are going to allow agriculture to be an offset, which means they are saying they can count the emissions that would be reduced if you were to pay a dairy to enclose its silage pile or barn.
Lopez: So, who would pay the dairy?
De La Cruz: So, Chevron for example, in Richmond, if they wanted to continue to pollute or increase their pollution, they could pay a dairy to do that.
Lopez: Can you say anything in terms of how you think this lawsuit will play out?
De La Cruz: We’re in the process of writing this writ right now and I think it’s so important.
CARB—even before a final decision was coming out—had its director, Mary Nickel, saying, “Oh yeah, this is a tempest in a tea pot, this really isn’t a big deal!” [They were] downplaying the significance of the win when there was a tentative order out and the judge was saying, “I think I’m going to go with this. I don’t think you did a good job.”
To characterize environmental review as paperwork, or as a tempest in a teapot when it’s something as important as California’s cap-and-trade system, or California’s climate change plan—there’s a real strategic misstep. I think it resulted in the judge saying, “Oh really? You’re going to characterize this like that?” I think hearing the lawyers from CARB trying to really downplay CARB’s responsibilities in creating the plan really made him step back and say, “No, you’re going to do this right and you’ll do it now and this way, because that’s what the law said.”
It’s really up to CARB at this point to make sure they do it right, and protect AB32 [and the non-cap-and-trade elements of the plan]. It’s important that they don’t drive the whole damn bus off the cliff in a misguided attempt to hang on to the shreds of a pollution trading program. That’s really the choice in front of them right now.
Lopez: The passage of AB32 was a huge victory for EJ communities and now it’s tied up in the courts—by EJ communities. For a mom in East LA or a person in Richmond or Wilmington, what can they do to ensure that AB32 is going to be equitably implemented?
De La Cruz: What they have been doing, such as registering people to vote, fighting Prop 23, being part of the process, raising their voice.?This is what our empowered EJ communities have been doing from the very get go, that has allowed this law to be passed in the first place and allowed for this law to be so transformative. The message doesn’t change at all. Get involved, lift your voice, and know there’s a place for you in these processes. I think the amazing outpouring of support in the “No on Prop 23” campaign really showed the power of communities in saying, “¡Ya basta!” (Enough!)
It’s incredible that we won in court, too. There’s a lot of pride and a lot of excitement moving forward and making sure that AB32 be done in the spirit and intent that it was written in.
Frank Lopez is the Social Equity Caucus Coordinator and Joe Feria Galicia is the Educational Technologist at Urban Habitat. For the full-length interview and a speech by De La Cruz, visit Behind the AB32 Lawsuit