Environmental Justice and Climate Action

Are the two in conflict? What should we make of the attacks on Mary Nichols?

Mary Nichols, the frontrunner to head EPA, was knocked out of contention earlier this week.  She would have been a formidable choice to implement Biden’s climate policies.  For that reason, it wasn’t clear whether she would have the votes to get through the narrowly divided Senate. But she was ultimately taken down by the fierce opposition of progressive environmental justice advocates.

According to the NY Times, the primary issue was Nichols’s support for California’s cap-and-trade system.  As the Times story explains, the  cap-and-trade program “is designed to broadly reduce pollution of planet-warming greenhouse gases — but disproportionately does so at the expense, the groups said, of communities of color by exposing them to more pollutants like smog and soot.”

My view is that this criticism of cap-and-trade is largely misplaced, as I wrote in a 2012 article.  It overlooks the way in which California’s program has generated huge amounts of funding for programs directly benefitting disadvantaged communities.  As a reason to block Nichols, the criticism also seems a bit irrelevant, since decisions by the D.C. Circuit have sharply limited EPA’s ability to implement cap-and-trade programs.

I suspect that a related criticism may actually have had more to do with the opposition.  Besides disagreeing with Nichols, EJ groups “charged that Ms. Nichols had repeatedly disregarded or dismissed the concerns of those communities about the effects of the climate policies she enacted.”  I don’t have any inside knowledge of interactions between Nichols and EJ groups.  What I do know is that mainstream environmentalists mostly seemed to brush off EJ concerns about California’s approach.  There was particular dismay when EJ groups sued unsuccessfully to stop implementation of the cap-and-trade program.

I suspect that this sense of not being taken seriously is what most embittered EJ advocates.  I’m sure that’s not how it seemed to Nichols, just as it wasn’t the way it seemed to many of us at the time.  Hopefully, by now we have all learned the need to listen seriously to those voices.

Listening, however, doesn’t guarantee agreement.  One Biden priority is moving as quickly and decisively as possible to cut carbon emissions.  Another priority is addressing the needs of disadvantaged communities. Most often, the two goals coincide. When the two priorities do conflict, however, Biden may face some tough choices. 







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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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