Introduction
In many U.S. states, climate laws and regulations were designed using distinct policy ideologies from those used in traditional environmental laws: Whereas traditional environmental laws typically mandate specific technology changes and pollution reductions at individual facilities,1 climate laws often rely on the private sector to identify solutions and establish “technology-neutral” incentives to innovate.2 The quintessential example of the latter framework is a market-based regulatory regime that requires aggregate emission reductions but does not dictate where those reductions come from.3 California is a recognized leader of such market-based approaches to climate regulation.4 California’s hallmark climate regulations, including the Cap-and-Invest Program (formerly known as Cap-and-Trade)5 and the Low Carbon Fuel Standard,6 first set greenhouse gas emission targets and then let the private sector decide which technology solutions to adopt and where to build them.7
Despite California’s reputation as a climate leader, Environmental Justice (EJ) communities have argued that the state’s market-based programs are not actually serving the EJ movement’s fundamental goals of liberating communities from the wide-ranging harms of the fossil fuel–reliant economy.8 Although the legal and policy literature has engaged with EJ critiques of market-based climate regulation, most of that literature focuses on the distributional impacts of greenhouse gas emissions mitigation and on approaches for achieving more “equitable” pollution burdens.9 This Essay, however, argues that market-based approaches to climate regulation, as embodied in California, are at odds with EJ for a more fundamental reason: their deprioritization of democratic decisionmaking processes.
This Essay posits that many policy questions decided in climate regulatory processes are questions that would benefit from robust community input, including questions about what types of new technologies to deploy and where to build them. Those questions are as value-laden as they are technical, and by placing them primarily in the hands of regulators and the private sector, California has missed opportunities to strengthen the legitimacy of its regulatory institutions and build climate solutions with community buy-in. The implications of this Essay’s analysis are relevant not only to California but to all governments considering how to structure climate regulations.
This Essay draws lessons from the author’s experience as a legal fellow at Communities for a Better Environment, a community-based organization that supports organizing and litigation to reduce environmental hazards in California EJ communities. Part I of the Essay introduces the EJ movement through the example of one EJ community — Richmond, California — home to one of the state’s biggest oil refineries. Part II places the EJ movement’s goals within the context of legal scholarship about regulatory law and describes the various ideals that administrative processes can be designed to serve, arguing that the democratic process ideal is important and undervalued. Part III describes the frameworks that the EJ movement has offered for addressing climate change, examines California’s climate regulations, and argues that the values underpinning those regulations conflict with the EJ movement’s vision of climate justice. Part IV looks closely at a recent regulatory proceeding for one of California’s climate regulations, illustrating what is lost when a regulation is designed to prioritize market-based decisionmaking rather than democratic decisionmaking.