Justice in a Warming World
| Author | Alice Kaswan |
| Position | Professor at the University of San Francisco School of Law. She thanks Maxine Burkett, Kara Christenson, Richard Drury, James Fine, Sheila Foster, Michael Gerrard, Kristin Grenfell, Helen Kang, and Avi Kar for their insightful comments, and Megan Walsh, USF 2008, for invaluable research assistance |
| Pages | 48-70 |
Page 48 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2009
There is little dispute about the dire
consequences of global warming. e
Intergovernmental Panel on Climate
Change predicted a wide range of un-
acceptable impacts in its 2007 report.1
Emissions reductions are essential.
Given the nation’s reliance on fossil
fuels, however, cuts of the requisite magnitude could
require profound technological and societal changes.
Developing mitigation and adaptation strategies will
present some of the most significant public policy
challenges of our time.
What considerations should be brought to bear
in developing the requisite public policies, and more
particularly, what role should environmental justice
concerns play? At a 2006 conference panel on devel-
oping cap-and-trade programs, Dan Skopec, then an
undersecretary of the California Environmental Pro-
tection Agency, said, “Using the umbrella of global
warming to satisfy other agendas is really going to
distract from the solution and create inefficiency.”2
e depth of the problem and the extent of its
ramifications lead me to the opposite conclusion.
In addition to their environmental consequences,
climate change policies addressing transportation,
energy production, manufacturing, commercial
enterprises, housing, land use, and agriculture will
inevitably have significant social and economic re-
percussions — on the poor, on consumers more
broadly, and on affected industries. Notwithstand-
ing the critical importance of significant greenhouse
gas reductions, policies designed in a vacuum, fo-
cusing solely on reductions, could create significant
and unintentional adverse consequences. Moreover,
policies to address climate change have the potential
to address long-standing societal problems, like dis-
tributional inequities. Constructive policies on emis-
sions of greenhouse gases, or GHGs, require a broad
vision incorporating environmental, economic, and
social considerations.
e environmental justice movement presents a
number of types of claims for justice. Activists seek
distributive justice: for example, they oppose facil-
ity sitings or permitting actions that would create
or increase existing pollution disparities.3 ey also
seek participatory justice: an influential role in the
decisions that could impact their communities.4 En-
vironmental justice advocates perceive environmen-
tal issues in context: in seeking “social justice,” en-
vironmental burdens are significant not only in en-
vironmental terms, but are considered a product of
Justice in a
Warming World
Cap-and-trade programs to address
climate change will not only reduce
greenhouse gases but spark a multitude of
environmental and economic consequences
that raise issues of distributive and
participatory justice. A number of
mechanisms exist for incorporating
environmental justice considerations into
cap-and-trade programs in a manner that
balances the sometimes conflicting goals of
equity and efficiency
Alice Kaswan
Alice Kaswan is a Pr ofessor at the
University of San Francisco School of
Law. She thank s Maxine Burkett, Ka ra
Chr istens on, Richa rd Drur y, J ames
Fine, Sheila Foster, Michael Gerrard,
Kristin Grenfell, H elen Kang, and Avi
Kar for their insightful comments, and
Megan Walsh, USF 2008, for invaluable
research assist ance.
en v i r o n m e n T a l la w re P o r T e r
JULY/AUGUST 2009 ❧ Page 49
Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2009
broader social, economic, and political forces.5 e
movement’s environmental policy goals are therefore
designed to achieve not only environmental benefits,
but community empowerment as well.6
In the climate change context, environmental
justice groups are beginning to articulate overarch-
ing principles. Domestically, the Environmental
Justice and Climate Change Initiative developed a
list of 10 climate justice principles.7 Recognizing the
particular vulnerability of the poor and people of
color, a number of the principles focus on the po-
tential consequences of climate change and the criti-
cal importance of reducing GHG emissions.8 Several
other principles focus on the implications of climate
change policies, including a
call for adaptation assistance
for poor communities,9 as
well as compensation for
workers and others impacted
by the potential economic
costs of climate change poli-
cies.10 e principles express
caution about developing
international and national
carbon markets.11 California-
based environmental justice
groups have been even more
critical of market-based ap-
proaches.12
In the international are-
na,13 the climate justice de-
bate has reflected broader
principles in international
politics, like human rights14
and corrective justice.15 De-
spite the difference in context, international environ-
mental justice advocates, like their domestic coun-
terparts, focus on participatory rights.16 In addition,
market-based measures, such as international emis-
sions trading, have been met with deep skepticism
and concern.17
e Role of Environmental Justice in
Existing Climate Change Policies
The Obama administration has reversed
the Bush administration’s resistance to
climate change regulation, a shift mani-
fested by such actions as its recent pro-
posed finding, under the Clean Air Act,
that greenhouse gases endanger public health and
welfare.18 e administration has yet to develop
specific CAA regulatory programs, however, and it
is unclear what role, if any, environmental justice
principles would play in their development. e
Obama administration has taken several actions to
promote economic justice, including the economic
stimulus bill’s support for low-income weather-
ization programs,19 the administration’s proposal
to use greenhouse gas auction allowance revenue
to help low-income consumers,20 and President
Obama’s appointment of Van Jones, an advocate of
green jobs for poor communities, as a special advi-
sor in the White House Council on Environmental
Quality.21
Congress is actively considering a discussion draft
for comprehensive climate
change legislation recently
introduced by Representa-
tives Henry Waxman (D-
California) and Edward Mar-
key (D-Massachusetts).22 at
legislation does not consider
the co-pollutant implications
of climate policy, and com-
mittee staff do not appear like-
ly to add such considerations
to the bill. On the economic
justice front, Section 422 of
the draft does include a grant
program for green job training
that could potentially benefit
lower-income individuals.23
Subtitle C, on “consumer as-
sistance” is, as of this writing,
“to be supplied.”24
At the state level,25 Cali-
fornia is a national leader in incorporating environ-
mental justice. AB 32,26 the climate change law the
state adopted in 2006, recognizes the importance of
developing climate change policies that take a wide
variety of factors into consideration, including en-
vironmental justice. e California Air Resources
Board, the primary agency responsible for imple-
menting AB 32, is developing approaches to meet
the state’s emissions reduction goals “in a manner
that minimizes costs and maximizes benefits for
California’s economy, improves and modernizes
California’s energy infrastructure and maintains
electric system reliability, maximizes additional en-
vironmental and economic co-benefits for Califor-
nia, and complements the state’s efforts to improve
air quality.”27
Procedurally, the law instructs CARB to devel-
In the climate change context, eniron-
mental justice groups are beginning to
articulate overarching principles
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