Global Warming Law Shifts Responsibility from Polluters to Communities [Contains Photo Slideshow]


Editor's Note: Scroll down to view a photo slideshow of affected communities in California and Mexico.

California leads the United States in energy efficiency, and is often hailed as a global beacon of environmental protection; at the same time, it is the 12th largest emitter of carbon dioxide worldwide, making the state a significant driver of climate change. Any efforts to reduce these emissions would clearly benefit not only California, but the world. So when the implementation of California's Global Warming Solutions Act, AB32, came to a grinding halt due to San Francisco Superior Court's March 18 ruling that it violated the California Environmental Quality Act (CEQA), it came as a shock to industry and environmentalists alike.

AB32, passed in 2006, mandates that the state reduce its greenhouse gas emissions to 1990 levels by the year 2020. The law is hailed as landmark environmental legislation for its aggressive action to reduce global warming emissions while "generating jobs, promoting a growing, clean-energy economy and a healthy environment for California at the same time."

It wouldn't be surprising if leading-edge environmental legislation like AB32 were to draw fire from climate-change deniers and tea-partiers who undoubtedly see it as a challenge to the god-given right to pollute; indeed, the last attempt to derail the law was last year's California Proposition 23, pushed by the oil lobby and roundly defeated by grassroots climate justice groups.

But the lawsuit against 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 low-income people and people of color who live, work and play in the shadow of refineries in Wilmington and Richmond, in the agro-toxic fields of the Central Valley, near the waste-dumps of Kettleman City, and in other California communities plagued by industrial pollution.

More surprising still, the bill and its implications are raising hackles among another unlikely constituency: indigenous peasant farmers in the remote jungle of southeastern Mexico.

Why should a bill 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 in essence, the problem with AB32, from the perspective of those most vulnerable to the impacts of both the climate crisis and the fossil fuel industry, can be summed up in two words: pollution trading.

Environmental Justice Advocates' Campaign to Reform AB32

On April 11, Alegria de la Cruz and Rafael Aguilera spoke at UC Berkeley's Goldman School of Public Policy. De la Cruz is the legal director for the San Francisco-based Center for Race, Poverty and the Environment; Rafael Aguilera worked with the non-profit Environmental Defense Fund to help shape AB32 and then, as a private consultant with his own Verde Group, took part in efforts to halt its implementation.

Aguilera, crisply dressed in a sport coat and tie, his long hair slicked into a tight ponytail, began by showing a graph of the rising numbers of heat-related deaths among California's farmworkers.

"Current predictions for the Central Valley are three-month long heat waves - temperatures above 105 degrees in the summer months," he said. Aguilera put up a slide of Maria Isavel Vasquez Jimenez, a pregnant 17-year-old farmworker who died of heat stroke near Stockton in the summer of 2008.

"Look at this face," he told the audience. "Maria Isavel is the face of climate change."

"Clean Air Act laws are supposed to protect public health," Aguilera went on. "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."

"What's happening on the environmental front in California is not happening in all of California," de la Cruz added. "The impacts of these policies are happening to very specific populations, because of their race and because of their class." A young but seasoned advocate, de la Cruz is a Yale graduate and a child of California farmworkers. Like her colleague, she was nattily dressed; she was also about eight-and-a-half months pregnant.

Under the implementation plan for AB32, which was approved by the California Air Resources Board (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 permitted to delay efforts to reduce carbon dioxide emissions -- along with the associated toxic co-pollutants -- by purchasing carbon allowances from outside California, and eventually from outside the United States.

Environmental justice advocates charge that such carbon trading schemes -- reducing emissions on paper only -- leaves lower-income communities of color to continue bearing the brunt of industrial pollution.

"One of the main areas that frustrated our clients in the AB32 scoping plan," said de La Cruz, one of two lead attorneys on the case, "was its overarching goal of a pollution trading system. For our communities, that violates not only the intent of AB32, because cap and trade has such serious implications for fence-line communities, but it also violates the letter of AB32."

It was this concern that led CRPE and CBE to undertake the lawsuit, despite their overall support for strong environmental regulations, De la Cruz said. "Because 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."

According to a University of California study, a cap-and-trade plan, such as AB32 proposes, 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 clearcutting. The ruling against AB32 requires that, to comply with the California Environmental Quality Act, the Air Resources Board must consider alternatives to cap-and-trade.

When the plan was under consideration, de la Cruz said, CARB failed to take into account the recommendations of its own Environmental Justice Advisory Committee, of which both CRPE and CBE are part.

"CARB was on a single-minded march to ensure that, damn it all, they were going to have a pollution trading program," said de la Cruz. "So we brought them to court."

Dr. John Balmes, a physician and member of the Air Resources Board, was on the team that developed AB32's scoping plan. He agreed with de la Cruz's assessment. "It was pretty clear that our former governor wanted cap and trade and wasn't going to let anything get in the way of it," he said.

De la Cruz explained to the audience at UC Berkeley that the ultimate goal of the lawsuit is to find solutions to global warming that also reduce point-source pollution and bring real benefits to the most vulnerable communities.

"We believe that when you undertake a process of looking at the alternatives," she said, "that the environmentally superior alternative will rise to the surface. And we believe that the environmentally superior alternative is not cap-and-trade.

"There are alternatives that get you better reductions, that are better for the state's tax coffers, and that don't continue being corporate welfare for the biggest, nastiest polluters in California."

South of the Border: The 'Trade' in Cap-and-Trade

While the pollution-trading piece of California's Global Warming Solutions Act has aroused the ire of statewide environmental justice advocates, it has also piqued interest south of the border. As one of his last acts in office, just a week before the United Nations Conference on Climate Change in Cancún, Mexico, former California Governor Arnold Schwarzenegger signed agreements with the states of Chiapas, Mexico and Acre, Brazil for a state-to-state cap-and-trade agreement to be part of AB32. The agreements with the two foreign states, as set out in two Memoranda of Understanding signed in Davis on November 16 of last year, are predicated on an emerging policy mechanism known as "Reducing Emissions from Deforestation and Forest Degradation," or REDD.

REDD is a profoundly complex set of policy protocols, largely still in development, based on the concern that 15 to 25 percent of global CO2 emissions are linked to forest loss. 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 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 developing world countries, and the forest-dwelling communities in those countries, an incentive not to cut down trees.

The United Nations defines REDD as "a mechanism to create an incentive for developing countries to protect, better manage and wisely use their forest resources, contributing to the global fight against climate change. REDD strategies aim to make forests more valuable standing than they would be cut down, by creating a financial value for the carbon stored in 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.

But even then, it was met with protest by indigenous groups, whose land was being targeted for implementation of the scheme, but who were given no part in designing it. While the major multilateral institutions, including the U.N., the World Bank, and large environmental organizations such as Environmental Defense Fund and Conservation International, support REDD (and its growing list of spin-offs with dizzying acronyms, such as REDD+ and REDD++), many forest-dependent communities, environmental justice advocates, indigenous peoples' organizations, and global South social movements are wary, to say the least. By forging an agreement to implement the "trade" part of AB32's "cap-and-trade" protocol through REDD, the former California governor 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.

A policy brief from the US Agency for International Development (USAID) on the application of REDD in Mexico notes that "there are a number of problems for which solutions need to be found if [the REDD] mechanism is to achieve its potential. One of these is linked to local difficulties, both in terms of policy integration and application in communities." Indeed, this concern -- that applying REDD programs in real-world communities can bring many real-world problems, was confirmed by my recent visit to Chiapas.

Welcome to the Jungle

On March 24, as evening fell over the Lacandon jungle of Chiapas, in the far southeastern corner of Mexico, the slat-wood shack that serves as an assembly hall for the village of Amador Hernández was full to capacity. The villagers, indigenous Tzeltal Mayans whose home is here in the heart of the northernmost intact rainforest in Mesoamerica, were gathered under a single florescent lamp to discuss the fate of their land.

Since they began settling here, when their parents and grandparents escaped bonded servitude on the nearby cattle ranches and plantations sometime in the 1960s, they have faced constant threats of eviction. A decree issued by the Mexican government in 1971 gave the vast portion of this land to their neighboring communities; a second decree, in 1976, made the greater part of the rainforest into a UNESCO World Heritage protected forest reserve, known as the Montes Azules Biosphere Reserve. As tenants and guardians of this vast territory -- around 600,000 hectares, or a million-and-a half acres -- the Mexican government appointed the Lacandon tribe, which at the time consisted of 66 families. These families, along with a few settlements from the Tzeltal and Ch'ol ethnic groups, became the new owners of the territory, officially designated "the Lacandon Community."

In order to designate the Lacandon Community, 2,000 Tzeltal and Ch'ol families -- 26 villages -- had to be displaced; among the displaced were the families who formed the village of Amador Hernández.

The tension and conflict that resulted from this arbitrary distribution of land made it impossible, for decades, for the Mexican government to successfully delimit the land in question. Several peasant farmer organizations formed throughout the 1970s to demand redress; some of these groups later coalesced to form the Zapatista Army of National Liberation, the indigenous rebel group that brought Chiapas to the world's attention with their 1994 uprising. Among the proto-Zapatistas, and the other organized peasant farmer groups in the region, one of the primary political slogans was "No a la brecha Lacandona!" (No to the Lacandon border) -- a specific rejection of the effort to demarcate the disputed territory.

Now, with the promise of financing under REDD, work is underway again to delimit "the brecha lacandona." The government of Chiapas has already started distributing money to members of the Lacandon Community. According to Juan Francisco Leo Durán, a federal government topographer, all but 80 kilometers of the brecha remain to be delineated.

"That 80 km," he told me on March 19, "lies in the region where the Zapatista communities are."

It is this nexus of threats -- the demarcation of the protected forest area, and the payments to the Lacandon Community -- that bring grave concern to the villagers gathered in Amador Hernández. In a note that the villagers composed the day after their assembly, they wrote,

This past month, the governor of Chiapas, Juan Sabines, 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.

The Subsecretary of the Environment of Chiapas, Alejandro Callejas, says that the demarcation of the brecha Lacandon is underway at the request of the authorities of the Lacandon Community, and has "absolutely nothing to do with the agreement with California, nor with the process of early action to prepare for REDD."

"The demarcation of land in the Lacandon jungle is a very old problem," Callejas says, "that precisely because it hasn't been attended to, has led to a number of conflicts between communities." He describes it as a complex situation where many different types of land grants have been given by federal order; therefore, "as state authorities," he says, "our ability to act is limited."

"In fact," the Subsecretary wrote in an email, "the agreement with California and Acre is really about scientific and technical cooperation for the eventual establishment of a market for carbon credits, in the event that we can calibrate technical criteria, baselines, terms of reference, co-benefits, and measurement of leakage [the concern that efforts to reduce emissions in one place shifts them to another place where they are unaccounted for] and permanence [the concern that forest carbon can be lost through logging, pests, and drought], and that all of this be compatible with legal norms of California and its cap-and-trade arrangement. As you can imagine, this is not a short-term process, and it implies a good deal of work on the part of the three governments, accompanied by different sectors, including civil society groups, universities, and communities."

Yet, according to public sources, the government of Chiapas is advancing its REDD project in the Lacandon community, in a manner that appears linked to the delimitation of land that concerns the residents of Amador Hernández.

On March 20, Governor Sabines had paid a high-profile visit to the village of Frontera Corazal, a population center of the Lacandon Community, to deliver a payment of 2,000 pesos to each landholder. The Mexican newspaper La Jornada quoted Governor Sabines as saying, "After 30 years, we are here to respond to the needs of Frontera Corozal, and we are doing it by way of this program, REDD +, that we have initiated in the seven reserves of the Lacandon jungle."

The article in La Jornada, based on a government press advisory, concludes, "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 outside the Reserve with species such as oil palm and rubber."

Santiago Martinez, a community health worker in Amador Hernández, and the man who had called the village assembly to raise the alarm, was indignant about the notion of turning the forest into a source of carbon credits, and about "agricultural conversion," which he described as an assault on indigenous ways of life.

"As indigenous peoples," he told me, "they've always tried to find ways to prove that we're the cause of the problem. But the climate, global warming -- we haven't done this ourselves, it's the fault of the factories, of cars, of industrial production in many countries. 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, and this is the main source of pollution and of climate change."

A few days before I visited Amador Hernández, the villagers said, they had received a government advisory announcing that a demarcation team would come through soon to map the brecha. While the villagers insisted that they maintain much of the land they occupy as "forest reserve," their best planting land, they said, lies within the Lacandon Community. Without it they would be unable to grow enough food to support themselves.

They also said that, a year earlier, all medical services, including vaccinations, had been cut off to the community, in what they believed was an attempt to force them to move or negotiate. Several elderly people and children had died due to lack of medical attention. Implicitly or explicitly, they believed, this willful neglect on the part of the government was due to their refusal to capitulate to the brecha Lacandona; they also believed strongly that the demarcation of the brecha was linked to the REDD payments being received by their neighbors in the Lacandon Community.

Recent events show that the residents of Amador Hernández have cause for alarm. Past attempts to demarcate the disputed land have involved military efforts to remove settlers, and specifically Zapatista-aligned communities. In 2000, then-President Zedillo expropriated 3.5 hectares from Amador Hernández to build military installations. In 2005, 160 Tzeltal families were displaced from Montes Azules to the pre-planned community of Nuevo Montes Azules, near the lowland city of Palenque. In late 2006, hundreds of armed residents of the Lacandon Community reportedly attacked the village of Viejo Velasco Suárez, leaving four people dead and four disappeared. In 2007, a joint police and military operation evicted 39 families from the communities of Buen Samaritano and San Manuel, also in the Montes Azules Reserve.

According to reports, some of the displaced communities were removed by force, while others signed agreements to go willingly, on condition of receiving new land. But the results, it appears, may be the same. The day before I arrived in Amador Hernández, on March 22, residents of Nuevo Montes Azules issued a public denouncement condemning the conditions of their resettlement.

"We accepted the offer of relocation," their declaration states, "due to the fact that the government of the state of Chiapas assured us that the lands we would be given were in perfect state, that our land title was assured, that the houses were well-constructed, that our electricity would be subsidized, that we would receive good educational and health services, potable drinking water, and modern systems of sewage and drainage. They offered us a dream, but they gave us a nightmare."

To the residents of Amador Hernández, it appears, resisting the brecha Lacandona means refusing to accept the nightmare of Nuevo Montes Azules.

Moving Ahead

Within Chiapas, many non-governmental organizations support REDD, seeing it as a source of much-needed financing for forest protection. Many others criticize the program, either from a standpoint of practical concerns -- that it benefits some and not others, thus leading to conflict -- or with more deep-seated ethical concerns: that it undermines indigenous cultures by putting economic value on aspects of the natural world that many characterize as sacred.

Among the supporters is a network of organizations called Grupo REDD, engaged in developing forest-carbon offset projects apparently unrelated to the government REDD program. Several members of Grupo REDD with whom I spoke agreed that any REDD program would have to be developed slowly, with community engagement and participation. Representatives of two of the groups, Pronatura and AMBIO, went so far as to insist that there are no REDD projects currently underway in Chiapas, despite news reports to the contrary.

The Subsecretary of the Environment gave a significant nod to the need to proceed slowly: "The process within the zone of the Lacandon Community," he said, "intends to establish a REDD+ project with broad participation from the communities, capacity-building in community carbon measurement, together with an alignment of public policy built on agreements that strengthen development without increasing the pressures that drive deforestation."

Yet, while its proponents agree that REDD is a vanishingly complex set of policy initiatives that must be handled with great care, the government of Chiapas appears to be moving ahead with the delimitation of forest reserves in the Lacandon jungle in order to place them into the carbon market, in a roughshod fashion that is already of touching off old conflicts.

Callejas insists that the two concerns are unrelated, and are moving at different paces: "the demarcation [of the brecha Lacandona] is a project of the Ministry of Agriculture and the National Commission of Natural Protected Areas," he says. "The agreement with California is a long-term project, though from my perspective it has a great potential, and the REDD + process is based on governance, and local capacity to decide whether a community wants to participate in a project, or not."

Arguments about REDD tend to focus on whether the economic incentives it promotes can be achieved without being accompanied by abuses of human rights and violations of the international legal obligations that protect indigenous peoples. Certainly, signs of conflict in Chiapas, such as the ongoing struggle around la brecha Lacandona, may dim the prospects of success for the world's first sub-national REDD program. But, with California's sites set on outsourcing pollution rather than attacking emissions at the source, and with the agencies involved focused more on technical problems than on social concerns, it is easy for those promoting REDD to ignore the protests of frontline communities like Amador Hernández.

"They think because they're rich and they have a lot of resources, they can do whatever they feel like," Santiago Martinez told me. "They are promoting the idea of giving carbon credits to these industries, so they can continue contaminating."

Meanwhile, back in California, as the Air Resources Board examines alternatives to pollution trading in order to make AB32 work to reduce both climate pollution and health threats to those most impacted, Alegria de la Cruz is cautiously optimistic: "Cap-and-trade is a great example of a market-based policy that patently fails to look at its non-economic impacts," she said. "We believe that when you look at the alternatives, as the law demands, the environmentally superior alternative will win out."

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