Pollution trading and environmental injustice: Los Angeles' failed experiment in air quality policy

Duke Environmental Law and Policy Forum

Volumn 9, Issue 2, 1999, Pages 231-289

  Drury, Richard Toshiyuki ^a,b   Belliveau, Michael E ^c,d   Kuhn, J Scott ^d   Bansal, Shipra ^d,e  

^a YALE UNIVERSITY   (United States)

^b Communities for a Better Environment ^*  (United States)

^c MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

^d Just Econ for Environmental Health ^*

^e UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ECONOMIC INSTRUMENT; EMISSION CONTROL; ENVIRONMENTAL ECONOMICS; POLLUTION TAX;

UNITED STATES;

EID: 0032816346     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (343)

1. THE OXFORD DICTIONARY OF QUOTATIONS 157 (Angela Partington ed., rev. 4th ed. 1996).
2. "Pollution trading" is used interchangeably with "emissions trading" to refer to one kind of market-based environmental policy tool that provides for the buying, selling, and use of emission reduction credits to more cost-effectively reduce pollution. These programs have also been called marketable permit programs or permit trading.
3. See Jeremy B. Hockenstein et al., Grafting the Next Generation of Market-Based Environmental Tools, ENVIRONMENT, May 1997, at 13-14. Pollution trading stands distinct from other market-based environmental policies, which include eliminating government subsidies, charging pollution fees, using a deposit refund system on products and reducing other market barriers.
4. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
5. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
6. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
7. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
8. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
9. See HERMAN E. DALY, BEYOND GROWTH: THE ECONOMICS OF SUSTAINABLE DEVELOPMENT 222-224 (1996) ("[T]he paradigm policy for solving the allocation, distribution, and scale problems seems . . . to be the tradable permit plan."). According to Daly, economic policy for sustainable development must solve three separate problems: efficient allocation of resources for production, fair and adequate distribution of resources to people, and setting an optimal scale of resource use at a point beyond which further growth costs more than it is worth. See id. at 222. Daly sees great virtue in the tradable permit scheme because it forces us to recognize and address these three problems separately through three independent policy instruments. Ses id. at 224. It requires the scale and distribution problems to be decided socially before relying on the competitive market to work out the allocation problem individualistically. See id. Daly calls the term sustainable development "dangerously vague" and something that "everyone likes, but nobody is sure of what it means." See id. at 1. The United Nations-sponsored Brundtland Commission report, Our Common Future, defined the term as development which meets the needs of the present without sacrificing the ability of the future to meet its needs. See id.
10. All the various forms of pollution trading incorporate this feature, including offsets and bubbles for new and existing sources of air pollution (see infra Part I.B), declining cap-and-trade programs, such as RECLAIM, see infra Part II.A, and open market trading programs, such as car scrapping Rule 1610, see infra Part II.A.
11. See David M. Driesen, Is Emissions Trading an Economic Incentive Program? Replacing the Command and Control/Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 296-97, 306-7 (1998) [hereinafter Driesen, Emissions Trading] ("[Proponents of economic incentives hold] that command and control regulation generates unnecessarily high compliance costs because the regulator, instead of deciding only how much pollution reduction to demand, also specifies the technologies and methods firms must use to control pollution. This may prove inefficient because the polluter knows its facility better than the regulator and can determine how to deliver any given decrease in pollution more efficiently than the regulator." Furthermore, "because facilities have unequal compliance costs, uniform standards demand relatively expensive reductions from some facilities without securing greater reductions from facilities with lower compliance costs. Hence, uniform standards may use private sector resources that are devoted to pollution control inefficiently."); Hockenstein et al., supra note 3, at 14-15.
12. See David M. Driesen, Is Emissions Trading an Economic Incentive Program? Replacing the Command and Control/Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 296-97, 306-7 (1998) [hereinafter Driesen, Emissions Trading] ("[Proponents of economic incentives hold] that command and control regulation generates unnecessarily high compliance costs because the regulator, instead of deciding only how much pollution reduction to demand, also specifies the technologies and methods firms must use to control pollution. This may prove inefficient because the polluter knows its facility better than the regulator and can determine how to deliver any given decrease in pollution more efficiently than the regulator." Furthermore, "because facilities have unequal compliance costs, uniform standards demand relatively expensive reductions from some facilities without securing greater reductions from facilities with lower compliance costs. Hence, uniform standards may use private sector resources that are devoted to pollution control inefficiently."); Hockenstein et al., supra note 3, at 14-15.
13. See discussion infra Part I.B on the growing U.S. reliance on pollution trading.
14. See David M. Driesen, Free Lunch or Cheap Fix?: The Emissions Trading Idea and the Climate Change Convention, 26 B.C. ENVTL. AFF. L. REV. 1, 18-35 (1998) [hereinafter Driesen, Cheap Fix?] (reviewing the evolution of trading, including joint implementation, in the Framework Convention on Climate Change); Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677, 704-13, 735-83, 798-800 (summarizing the use of different regulatory instruments at the international level and arguing that global environmental protection should presumptively favor quantity-based tradeable allowances, due to the unique legal framework that exists at the international level). See infra Part IV.B. for the implications of pollution trading for climate change policy.
15. See David M. Driesen, Free Lunch or Cheap Fix?: The Emissions Trading Idea and the Climate Change Convention, 26 B.C. ENVTL. AFF. L. REV. 1, 18-35 (1998) [hereinafter Driesen, Cheap Fix?] (reviewing the evolution of trading, including joint implementation, in the Framework Convention on Climate Change); Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677, 704-13, 735-83, 798-800 (summarizing the use of different regulatory instruments at the international level and arguing that global environmental protection should presumptively favor quantity-based tradeable allowances, due to the unique legal framework that exists at the international level). See infra Part IV.B. for the implications of pollution trading for climate change policy.
16. See David M. Driesen, Free Lunch or Cheap Fix?: The Emissions Trading Idea and the Climate Change Convention, 26 B.C. ENVTL. AFF. L. REV. 1, 18-35 (1998) [hereinafter Driesen, Cheap Fix?] (reviewing the evolution of trading, including joint implementation, in the Framework Convention on Climate Change); Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 YALE L.J. 677, 704-13, 735-83, 798-800 (summarizing the use of different regulatory instruments at the international level and arguing that global environmental protection should presumptively favor quantity-based tradeable allowances, due to the unique legal framework that exists at the international level). See infra Part IV.B. for the implications of pollution trading for climate change policy.
17. See Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 STAN. ENVTL. L.J. 300, 301, n.3 (1995) (describing support for market-based pollution regulations); Symposium, Free Market Environmentalism: The Role of the Market in Environmental Protection, 14 HARV. J.L. & PUB. POL'Y 297 (1992) (surveying market-based regulations).
18. See Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 STAN. ENVTL. L.J. 300, 301, n.3 (1995) (describing support for market-based pollution regulations); Symposium, Free Market Environmentalism: The Role of the Market in Environmental Protection, 14 HARV. J.L. & PUB. POL'Y 297 (1992) (surveying market-based regulations).
19. See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1346 (1985) [hereinafter Ackerman & Stewart, Reforming Environmental Law (I)] (arguing that market-based pollution trading programs will save billions of dollars annually).
20. See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1346 (1985) [hereinafter Ackerman & Stewart, Reforming Environmental Law (I)] (arguing that market-based pollution trading programs will save billions of dollars annually).
21. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 179-88 (1988) [hereinafter Ackerman & Stewart, Reforming Environmental Law (II)]; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158-62 (1988); Cass Sunstein, Democratizing America Through Law, 25 SUFFOLK U. L. REV. 949, 964-66 (1991); Driesen, Emisssions Trading, supra note 6, at 295 (noting "the quasi-religious faith in programs labeled economic incentives and [the] demonization of traditional regulation").
22. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 179-88 (1988) [hereinafter Ackerman & Stewart, Reforming Environmental Law (II)]; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158-62 (1988); Cass Sunstein, Democratizing America Through Law, 25 SUFFOLK U. L. REV. 949, 964-66 (1991); Driesen, Emisssions Trading, supra note 6, at 295 (noting "the quasi-religious faith in programs labeled economic incentives and [the] demonization of traditional regulation").
23. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 179-88 (1988) [hereinafter Ackerman & Stewart, Reforming Environmental Law (II)]; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158-62 (1988); Cass Sunstein, Democratizing America Through Law, 25 SUFFOLK U. L. REV. 949, 964-66 (1991); Driesen, Emisssions Trading, supra note 6, at 295 (noting "the quasi-religious faith in programs labeled economic incentives and [the] demonization of traditional regulation").
24. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 179-88 (1988) [hereinafter Ackerman & Stewart, Reforming Environmental Law (II)]; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158-62 (1988); Cass Sunstein, Democratizing America Through Law, 25 SUFFOLK U. L. REV. 949, 964-66 (1991); Driesen, Emisssions Trading, supra note 6, at 295 (noting "the quasi-religious faith in programs labeled economic incentives and [the] demonization of traditional regulation").
25. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 179-88 (1988) [hereinafter Ackerman & Stewart, Reforming Environmental Law (II)]; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158-62 (1988); Cass Sunstein, Democratizing America Through Law, 25 SUFFOLK U. L. REV. 949, 964-66 (1991); Driesen, Emisssions Trading, supra note 6, at 295 (noting "the quasi-religious faith in programs labeled economic incentives and [the] demonization of traditional regulation").
26. For a few empirical surveys of emissions trading see Robert W. Hahn & Gordon L Hester, Marketable Permits: Lessons for Theory and Practice, 16 ECOLOGY. L. Q. 361, 381-91 (1989) (trading lead credits to reduce lead in gasoline successfully reduced costs but delayed compliance); Driesen, Emissions Trading, supra note 6, at 311-18 (reviewing pollution trading's mixed record of environmental performance).
27. For a few empirical surveys of emissions trading see Robert W. Hahn & Gordon L Hester, Marketable Permits: Lessons for Theory and Practice, 16 ECOLOGY. L. Q. 361, 381-91 (1989) (trading lead credits to reduce lead in gasoline successfully reduced costs but delayed compliance); Driesen, Emissions Trading, supra note 6, at 311-18 (reviewing pollution trading's mixed record of environmental performance).
28. See Driesen, Emissions Trading, supra note 6, at 296; Perry S. Goldschein, Going Mobile: Emissions Trading Gets a Boost from Mobile Source Emission Reduction Credits, 13 UCLA J. ENVTL. L. & POL'Y 225, 230 (1994/95). However, Driesen argues that critics are wrong; technology-based regulations set performance standards that can be met by any means chosen by the polluter. See id. at 297-304.
29. See Driesen, Emissions Trading, supra note 6, at 296; Perry S. Goldschein, Going Mobile: Emissions Trading Gets a Boost from Mobile Source Emission Reduction Credits, 13 UCLA J. ENVTL. L. & POL'Y 225, 230 (1994/95). However, Driesen argues that critics are wrong; technology-based regulations set performance standards that can be met by any means chosen by the polluter. See id. at 297-304.
30. See Driesen, Emissions Trading, supra note 6, at 296; Perry S. Goldschein, Going Mobile: Emissions Trading Gets a Boost from Mobile Source Emission Reduction Credits, 13 UCLA J. ENVTL. L. & POL'Y 225, 230 (1994/95). However, Driesen argues that critics are wrong; technology-based regulations set performance standards that can be met by any means chosen by the polluter. See id. at 297-304.
31. Often, traditional environmental regulation has required pollution to be reduced by amounts achievable through the use of control technology already proven to be effective, affordable, and already in use to some degree. For example, the Clean Air Act requires that Reasonably Available Control Technology (RACT) be used by existing sources to reduce air pollution, while new industrial plants must comply with the Lowest Achievable Emission Rate (LAER) through more state of the art controls. See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 776-77 (2d ed. 1996).
32. Ses Hockenstein et al., supra note 3, at 14 ("[Command-and-control] regulations force all firms to shoulder identical shares of the mitigation burden, regardless of the relative costs of this burden to them. This is a significant drawback because experience has shown that some firms can lower pollution at much less cost than others. Thus, while the command-and-control approach can effectively limit emissions of pollutants, it typically exacts unduly high societal costs in the process.").
33. See John J. Fialka, Breathing Easy: Clear Skies are Goal as Pollution is Turned into a Commodity, WALL ST. J., Oct. 3, 1997, at A1 (discussing how Wisconsin Electric Power Co. saved $100 million by buying pollution credits from other industries that had reduced their sulfur dioxide emissions instead of installing scrubbers); Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1348 (noting that "the Clean Air Act bubble policy alone, in limited use for only a few years, has achieved compliance cost savings of over $700 million without and reduction (and in some cases an increase) in pollution control").
34. See John J. Fialka, Breathing Easy: Clear Skies are Goal as Pollution is Turned into a Commodity, WALL ST. J., Oct. 3, 1997, at A1 (discussing how Wisconsin Electric Power Co. saved $100 million by buying pollution credits from other industries that had reduced their sulfur dioxide emissions instead of installing scrubbers); Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1348 (noting that "the Clean Air Act bubble policy alone, in limited use for only a few years, has achieved compliance cost savings of over $700 million without and reduction (and in some cases an increase) in pollution control").
35. Global trading in carbon dioxide credits was called for in the Kyoto Protocol to the United Nations Framework Convention on Climate Change. See generally Driesen, Cheap Fix?, supra note 8.
36. See Daniel J. Dudek & John Palmisano, Emissions Trading: Why is this Thoroughbred Hobbled?, 13 COLUM. J. ENVTL. L., 217, 219-23 (1988); Ackerman & Stewart, Reforming Environmental Law (II), supra note 11, at 171-72.
37. See Daniel J. Dudek & John Palmisano, Emissions Trading: Why is this Thoroughbred Hobbled?, 13 COLUM. J. ENVTL. L., 217, 219-23 (1988); Ackerman & Stewart, Reforming Environmental Law (II), supra note 11, at 171-72.
38. Dudek & Palmisano, supra note 18, at 235. But see infra Parts III.B.2-III.B.3. 20. See Heinzerling, supra note 9, at 311-14; Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1353-55; Stewart, supra note 11, at 160, 164; Sunstein, supra note 11, at 966-68.
39. See Heinzerling, supra note 9, at 302 (noting that Cass Sunstein, Bruce Ackerman, and Richard B. Stewart have suggested that pollution trading programs are superior to technology-based regulations from a democratic perspective because they begin with an explicit discussion about what level of pollution is acceptable); Stewart, supra note 11, at 160, 164; Sunstein, supra note 11, at 966-68. But see discussion infra Part III.C..3. 22. See Heinzerling, supra note 9, at 302. 23. Sunstein, supra note 11, at 967 .
40. See generally PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT (1993); MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995); ROBERT GOTTLIEB, FORCING THE SPRING: THE TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT (1993 ).
41. See generally PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT (1993); MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995); ROBERT GOTTLIEB, FORCING THE SPRING: THE TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT (1993 ).
42. See generally PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL MOVEMENT (1993); MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995); ROBERT GOTTLIEB, FORCING THE SPRING: THE TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT (1993 ).
43. See Hockenstein et al., supra note 3, at 14.
44. See SHABECOFF, supra note 24, at 203-30; GOTTLIEB, supra note 24, at 117-61.
45. See generally, Dudek & Palmisano, supra note 18.
46. See SHABECOFF, supra note 24 at 258-60; DOWIE, supra note 24, at 105-17; GOTTLIEB, supra note 24, at 160-61.
47. See Dudek & Palmisano, supra note 18, at 224-25.
48. This results in "no net increase" in emissions but allows avoidance of pollution control responsibilities. See id. at 225-26.
49. See id. at 227.
50. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 866 (1984) (holding "that the EPA's definition of the term 'source' is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth").
51. Emissions Trading Policy Statement, 51 Fed. Reg. 43,814 (1986); see Dudek & Palmisano, supra note 18, at 228.
52. See, e.g., Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1341-42 ("A system of tradeable rights will tend to bring about a least-cost allocation of control burdens . . . . It will . . . reduce the incentives for litigation, simplify the issues in controversy, and facilitate more intelligent setting of priorities.").
53. See Sherri Bittenberg & Robert Stavins, Project 88: Harnessing Market Forces to Protect Our Environment, HARVARD ENERGY AND ENVIRONMENTAL POLICY CENTER WORKING PAPER (1989); Thomas J. Graff, Harnessing Market Forces to Protect Out Environment, 20 EDF COLUMN 1, ¶ 3 (last modified Mar. 24, 1999) 〈http://www.edf.org/pubs/EDF-Letter/1989/Feb/j_market.html〉; Harvard Environment and Natural Resources Program, Outreach (visited Apr. 1, 1999) 〈http://ksgnotes1.harvard.edu/BCSIA/ENRP.nsf/web/Outreach〉.
54. See Sherri Bittenberg & Robert Stavins, Project 88: Harnessing Market Forces to Protect Our Environment, HARVARD ENERGY AND ENVIRONMENTAL POLICY CENTER WORKING PAPER (1989); Thomas J. Graff, Harnessing Market Forces to Protect Out Environment, 20 EDF COLUMN 1, ¶ 3 (last modified Mar. 24, 1999) 〈http://www.edf.org/pubs/EDF-Letter/1989/Feb/j_market.html〉; Harvard Environment and Natural Resources Program, Outreach (visited Apr. 1, 1999) 〈http://ksgnotes1.harvard.edu/BCSIA/ENRP.nsf/web/Outreach〉.
55. See Sherri Bittenberg & Robert Stavins, Project 88: Harnessing Market Forces to Protect Our Environment, HARVARD ENERGY AND ENVIRONMENTAL POLICY CENTER WORKING PAPER (1989); Thomas J. Graff, Harnessing Market Forces to Protect Out Environment, 20 EDF COLUMN 1, ¶ 3 (last modified Mar. 24, 1999) 〈http://www.edf.org/pubs/EDF-Letter/1989/Feb/j_market.html〉; Harvard Environment and Natural Resources Program, Outreach (visited Apr. 1, 1999) 〈http://ksgnotes1.harvard.edu/BCSIA/ENRP.nsf/web/Outreach〉.
56. Pub. L. No. 101-549, 104 Stat. 2399 (codified as amended at 42 U.S.C. §§ 7401-671 (1994)); Bush Breaks Acid Rain Logjam, Commends EDF, 20 EDF LETTER 1, ¶ 3 (last visited Apr. 11, 1999) 〈http://www.edf.org/pubs/edf%2Dletter/1989/aug/a%5Facidrain.html〉.
57. See 42 U.S.C. § 7511a(g)(4) (1994).
58. The emissions trading strategy targets a severe and persistent public health problem. About 117 million U.S. residents breath unhealthy air during at least parts of the year, due to levels of ozone, a prime constituent of urban smog, in excess of the new federal health standard. See American Lung Association, Outdoor Air Pollution (last modified Dec. 9, 1998) 〈http://www.lungusa.org/air/outdoor_factsheet.html〉; American Lung Association, Ozone Air Pollution (last modified Apr. 18, 1998) 〈http://www.lungusa.org/air/envozone.html〉; U.S. Environmental Protection Agency, Regulating Smog and Paniculate Air Pollution: An Integrated Approach (last modified Sep. 11, 1998) 〈http://www.epa.gov/oar/oaqps/regusmog/infozone. html〉 ("In 1995, approximately 70 million U.S. residents were living in counties with ozone levels that exceed EPA's [old] ozone standard."). See generally American Lung Association, OUT OF BREATH: POPULATIONS-AT-RISK TO ALTERNATIVE OZONE LEVELS (1995).
59. The emissions trading strategy targets a severe and persistent public health problem. About 117 million U.S. residents breath unhealthy air during at least parts of the year, due to levels of ozone, a prime constituent of urban smog, in excess of the new federal health standard. See American Lung Association, Outdoor Air Pollution (last modified Dec. 9, 1998) 〈http://www.lungusa.org/air/outdoor_factsheet.html〉; American Lung Association, Ozone Air Pollution (last modified Apr. 18, 1998) 〈http://www.lungusa.org/air/envozone.html〉; U.S. Environmental Protection Agency, Regulating Smog and Paniculate Air Pollution: An Integrated Approach (last modified Sep. 11, 1998) 〈http://www.epa.gov/oar/oaqps/regusmog/infozone. html〉 ("In 1995, approximately 70 million U.S. residents were living in counties with ozone levels that exceed EPA's [old] ozone standard."). See generally American Lung Association, OUT OF BREATH: POPULATIONS-AT-RISK TO ALTERNATIVE OZONE LEVELS (1995).
60. The emissions trading strategy targets a severe and persistent public health problem. About 117 million U.S. residents breath unhealthy air during at least parts of the year, due to levels of ozone, a prime constituent of urban smog, in excess of the new federal health standard. See American Lung Association, Outdoor Air Pollution (last modified Dec. 9, 1998) 〈http://www.lungusa.org/air/outdoor_factsheet.html〉; American Lung Association, Ozone Air Pollution (last modified Apr. 18, 1998) 〈http://www.lungusa.org/air/envozone.html〉; U.S. Environmental Protection Agency, Regulating Smog and Paniculate Air Pollution: An Integrated Approach (last modified Sep. 11, 1998) 〈http://www.epa.gov/oar/oaqps/regusmog/infozone. html〉 ("In 1995, approximately 70 million U.S. residents were living in counties with ozone levels that exceed EPA's [old] ozone standard."). See generally American Lung Association, OUT OF BREATH: POPULATIONS-AT-RISK TO ALTERNATIVE OZONE LEVELS (1995).
61. The emissions trading strategy targets a severe and persistent public health problem. About 117 million U.S. residents breath unhealthy air during at least parts of the year, due to levels of ozone, a prime constituent of urban smog, in excess of the new federal health standard. See American Lung Association, Outdoor Air Pollution (last modified Dec. 9, 1998) 〈http://www.lungusa.org/air/outdoor_factsheet.html〉; American Lung Association, Ozone Air Pollution (last modified Apr. 18, 1998) 〈http://www.lungusa.org/air/envozone.html〉; U.S. Environmental Protection Agency, Regulating Smog and Paniculate Air Pollution: An Integrated Approach (last modified Sep. 11, 1998) 〈http://www.epa.gov/oar/oaqps/regusmog/infozone. html〉 ("In 1995, approximately 70 million U.S. residents were living in counties with ozone levels that exceed EPA's [old] ozone standard."). See generally American Lung Association, OUT OF BREATH: POPULATIONS-AT-RISK TO ALTERNATIVE OZONE LEVELS (1995).
62. See REPORT OF THE NATIONAL PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS 11 (1993) (recommending adoption of market-based approaches to reduce pollution); REPORT OF THE NATIONAL PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS (visited Apr. 1, 1999) 〈http://www.usgs.gov/npr/npr-2/npr-2-4.html〉;
63. See REPORT OF THE NATIONAL PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS 11 (1993) (recommending adoption of market-based approaches to reduce pollution); REPORT OF THE NATIONAL PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER AND COSTS LESS (visited Apr. 1, 1999) 〈http://www.usgs.gov/npr/npr-2/npr-2-4.html〉;
64. Heinzerling, supra note 9, at 301, n.2 (describing support for market-based pollution regulations).
65. See, e.g., Alexandra Teitz, Assessing Point Source Discharge Permit Trading: Case Study in Controlling Selenium Discharges to the San Francisco Bay Estuary, 21 ECOLOGY L.Q. 79 (1994);
66. David Sohn & Madeline Cohen, From Smokestacks to Species: Extending the Tradable Permit Approach From Air Pollution to Habiat Conservation, 15 STAN. ENVTL. L. J. 405 (1996); Fialka, supra note 16 (discussing President Clinton's plan to expand pollution trading world-wide and the Environmental Defense Fund's consulting with British Petroleum on a world wide carbon dioxide market).
67. See, e.g., U.S. ENVIRONMENTAL PROTECTION AGENCY, DRAFT FRAMEWORK FOR WATERSHED-BASED TRADING, EPA 800-R-96-001 (May 1996).
68. 2 EMISSION ENTITLEMENTS (1994); UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, GREENHOUSE GAS EMISSIONS TRADING: DEFINING THE PRINCIPLES, MODALITIES, RULES AND GUIDELINES FOR VERIFICATION, REPORTING AND ACCOUNTABILITY (1998).
69. 2 EMISSION ENTITLEMENTS (1994); UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, GREENHOUSE GAS EMISSIONS TRADING: DEFINING THE PRINCIPLES, MODALITIES, RULES AND GUIDELINES FOR VERIFICATION, REPORTING AND ACCOUNTABILITY (1998).
70. See generally, Driesen, Cheap Fix?, supra note 8 (emissions trading is a cheap fix, not a free lunch or an enduring solution to pollution problems).
71. The South Coast Air Quality Management District (SCAQMD) was created to achieve and maintain healthful air quality in the South Coast Air Basin, a four-county region which includes Los Angeles and Orange counties and parts of Riverside and San Bernardino counties in California. This area of 12,000 square miles is home to more than 14 million people - almost half the population of the State of California. It is the second most populous urban area in the United States. See South Coast Air Quality Management District, Introducing AQMD (last modified Jan. 27, 1999) 〈http://www.aqmd.gov/aqmd/intraqmd.html〉.
72. See Matthew Polesetsky, Will a Market in Air Pollution Clean the Nation's Dirtiest Air? A Study of the South Coast Air Quality Management District's Regional Clean Air Market, 22 ECOLOGY L.Q. 359, 362, n.9 (1995) (noting that the South Coast Air Basin has the worst ozone and nitrogen oxide levels in the country); The Alliance of Small Emitters/Metal Indus, v. South Coast Air Quality Management Dist., 70 Cal. Rptr. 54, 55 (Cal. App. 2d 1997) (According to the federal government the greater Los Angeles basin has the most polluted air in the entire nation, indeed the only area rated as experiencing 'extreme air pollution.'); Marla Cone, 9 AQMD Advisors Quit in Protest of New Smog Plan Health: Scientists, Economists Express Concern that Agency's Policies will not Ensure Healthful Air. They also Fault the District as Lax in Enforcing Penalties, L.A. TIMES, Aug. 9, 1996, at A1 (noting that despite decades of progress, the South Coast Air Basin has the nation's "foulest air" and violates federal health standards for ozone on the average of every three days).
73. See Matthew Polesetsky, Will a Market in Air Pollution Clean the Nation's Dirtiest Air? A Study of the South Coast Air Quality Management District's Regional Clean Air Market, 22 ECOLOGY L.Q. 359, 362, n.9 (1995) (noting that the South Coast Air Basin has the worst ozone and nitrogen oxide levels in the country); The Alliance of Small Emitters/Metal Indus, v. South Coast Air Quality Management Dist., 70 Cal. Rptr. 54, 55 (Cal. App. 2d 1997) (According to the federal government the greater Los Angeles basin has the most polluted air in the entire nation, indeed the only area rated as experiencing 'extreme air pollution.'); Marla Cone, 9 AQMD Advisors Quit in Protest of New Smog Plan Health: Scientists, Economists Express Concern that Agency's Policies will not Ensure Healthful Air. They also Fault the District as Lax in Enforcing Penalties, L.A. TIMES, Aug. 9, 1996, at A1 (noting that despite decades of progress, the South Coast Air Basin has the nation's "foulest air" and violates federal health standards for ozone on the average of every three days).
74. See DEBORAH S. SHPRENTZ, BREATHTAKING: PREMATURE MORTALITY DUE TO PARTICULATE AIR POLLUTION IN 239 AMERICAN CITIES 58-73 (1996). Every year, some 64,000 people in the U.S. die prematurely from cardiopulmonary causes linked to particulate air pollution, their lives shortened by an average of one to two years. Los Angeles tops the list in premature deaths with 5,873 per year. In comparison, only 1,458 people died from car accidents in Los Angeles in a comparable year, making tailpipe emissions at least as deadly as the car itself. Los Angeles' air pollution early death rate is followed by New York (4,024), Chicago (3,479) Philadelphia (2,599) and Detroit (2,123). See Deborah S. Sphrentz, Breath-Taking: Premature Mortality Due to Paniculate Air Pollution in 239 American Cities (last modified Mar. 10, 1999) 〈http://www.nrdc.org/nrdcpro/bt/tableGu.html〉; Natural Resource Defense Council, Danger in the Air (last modified Dec. 16, 1998) 〈http://www.nrdc.org/find/aibresum.html〉; Maria Cone, Grit in L.A. Blamed in 6,000 L.A. Deaths Yearly, L.A. TIMES, May 9, 1996, at A1.
75. See DEBORAH S. SHPRENTZ, BREATHTAKING: PREMATURE MORTALITY DUE TO PARTICULATE AIR POLLUTION IN 239 AMERICAN CITIES 58-73 (1996). Every year, some 64,000 people in the U.S. die prematurely from cardiopulmonary causes linked to particulate air pollution, their lives shortened by an average of one to two years. Los Angeles tops the list in premature deaths with 5,873 per year. In comparison, only 1,458 people died from car accidents in Los Angeles in a comparable year, making tailpipe emissions at least as deadly as the car itself. Los Angeles' air pollution early death rate is followed by New York (4,024), Chicago (3,479) Philadelphia (2,599) and Detroit (2,123). See Deborah S. Sphrentz, Breath-Taking: Premature Mortality Due to Paniculate Air Pollution in 239 American Cities (last modified Mar. 10, 1999) 〈http://www.nrdc.org/nrdcpro/bt/tableGu.html〉; Natural Resource Defense Council, Danger in the Air (last modified Dec. 16, 1998) 〈http://www.nrdc.org/find/aibresum.html〉; Maria Cone, Grit in L.A. Blamed in 6,000 L.A. Deaths Yearly, L.A. TIMES, May 9, 1996, at A1.
76. See DEBORAH S. SHPRENTZ, BREATHTAKING: PREMATURE MORTALITY DUE TO PARTICULATE AIR POLLUTION IN 239 AMERICAN CITIES 58-73 (1996). Every year, some 64,000 people in the U.S. die prematurely from cardiopulmonary causes linked to particulate air pollution, their lives shortened by an average of one to two years. Los Angeles tops the list in premature deaths with 5,873 per year. In comparison, only 1,458 people died from car accidents in Los Angeles in a comparable year, making tailpipe emissions at least as deadly as the car itself. Los Angeles' air pollution early death rate is followed by New York (4,024), Chicago (3,479) Philadelphia (2,599) and Detroit (2,123). See Deborah S. Sphrentz, Breath-Taking: Premature Mortality Due to Paniculate Air Pollution in 239 American Cities (last modified Mar. 10, 1999) 〈http://www.nrdc.org/nrdcpro/bt/tableGu.html〉; Natural Resource Defense Council, Danger in the Air (last modified Dec. 16, 1998) 〈http://www.nrdc.org/find/aibresum.html〉; Maria Cone, Grit in L.A. Blamed in 6,000 L.A. Deaths Yearly, L.A. TIMES, May 9, 1996, at A1.
77. See DEBORAH S. SHPRENTZ, BREATHTAKING: PREMATURE MORTALITY DUE TO PARTICULATE AIR POLLUTION IN 239 AMERICAN CITIES 58-73 (1996). Every year, some 64,000 people in the U.S. die prematurely from cardiopulmonary causes linked to particulate air pollution, their lives shortened by an average of one to two years. Los Angeles tops the list in premature deaths with 5,873 per year. In comparison, only 1,458 people died from car accidents in Los Angeles in a comparable year, making tailpipe emissions at least as deadly as the car itself. Los Angeles' air pollution early death rate is followed by New York (4,024), Chicago (3,479) Philadelphia (2,599) and Detroit (2,123). See Deborah S. Sphrentz, Breath-Taking: Premature Mortality Due to Paniculate Air Pollution in 239 American Cities (last modified Mar. 10, 1999) 〈http://www.nrdc.org/nrdcpro/bt/tableGu.html〉; Natural Resource Defense Council, Danger in the Air (last modified Dec. 16, 1998) 〈http://www.nrdc.org/find/aibresum.html〉; Maria Cone, Grit in L.A. Blamed in 6,000 L.A. Deaths Yearly, L.A. TIMES, May 9, 1996, at A1.
78. See South Coast Air Quality Management District, Smog and Health (last modified Mar. 19, 1997) 〈http://www.aqmd.gov/smog/inhealth.html〉 [hereinafter SCAQMD, Smog and Health]. A 1989 study funded by AQMD and conducted by Dr. Jane Hall of Cal State Fullerton found that ninety-eight percent of the four-county basin's population of 13 million is exposed to unhealthful air, with children especially vulnerable. In addition, 1,600 people die prematurely each year as a result of exposure to air pollution, according to the study. Millions of residents of the South Coast Basin breathe dirty air some one-third the days of the year. Ozone levels here are often twice the federal health standard. See id. In 1995, the standard was exceeded on 98 days at one or more Basin locations, most frequently in the east San Gabriel Valley. Lungs are ozone's primary target. Studies on animals show that ozone damages cells in the lung's airways, causing inflammation and swelling. It also reduces the respiratory system's ability to fight infection and remove foreign particles. Ozone may pose a particular health threat to the 1.4 million residents who already suffer from respiratory problems such as asthma, emphysema and chronic bronchitis. Ozone may also pose a health threat to the young, elderly and cardiovascular patients. See id.
79. See South Coast Air Quality Management District, Smog and Health (last modified Mar. 19, 1997) 〈http://www.aqmd.gov/smog/inhealth.html〉 [hereinafter SCAQMD, Smog and Health]. A 1989 study funded by AQMD and conducted by Dr. Jane Hall of Cal State Fullerton found that ninety-eight percent of the four-county basin's population of 13 million is exposed to unhealthful air, with children especially vulnerable. In addition, 1,600 people die prematurely each year as a result of exposure to air pollution, according to the study. Millions of residents of the South Coast Basin breathe dirty air some one-third the days of the year. Ozone levels here are often twice the federal health standard. See id. In 1995, the standard was exceeded on 98 days at one or more Basin locations, most frequently in the east San Gabriel Valley. Lungs are ozone's primary target. Studies on animals show that ozone damages cells in the lung's airways, causing inflammation and swelling. It also reduces the respiratory system's ability to fight infection and remove foreign particles. Ozone may pose a particular health threat to the 1.4 million residents who already suffer from respiratory problems such as asthma, emphysema and chronic bronchitis. Ozone may also pose a health threat to the young, elderly and cardiovascular patients. See id.
80. See South Coast Air Quality Management District, Smog and Health (last modified Mar. 19, 1997) 〈http://www.aqmd.gov/smog/inhealth.html〉 [hereinafter SCAQMD, Smog and Health]. A 1989 study funded by AQMD and conducted by Dr. Jane Hall of Cal State Fullerton found that ninety-eight percent of the four-county basin's population of 13 million is exposed to unhealthful air, with children especially vulnerable. In addition, 1,600 people die prematurely each year as a result of exposure to air pollution, according to the study. Millions of residents of the South Coast Basin breathe dirty air some one-third the days of the year. Ozone levels here are often twice the federal health standard. See id. In 1995, the standard was exceeded on 98 days at one or more Basin locations, most frequently in the east San Gabriel Valley. Lungs are ozone's primary target. Studies on animals show that ozone damages cells in the lung's airways, causing inflammation and swelling. It also reduces the respiratory system's ability to fight infection and remove foreign particles. Ozone may pose a particular health threat to the 1.4 million residents who already suffer from respiratory problems such as asthma, emphysema and chronic bronchitis. Ozone may also pose a health threat to the young, elderly and cardiovascular patients. See id.
81. Lisa Getter, Cancer Risk From Air Pollution Still High, Study Says; Environment: Samples in L.A. Area Indicate Hazard is 426 Times More than Level Set by EPA in 1990. Report is the First to Measure Carcinogenic Dangers of Breathing, L.A. TIMES, Mar. 1, 1999, at A1.
82. Of the more than 9.6 million people who live in Los Angeles County, nearly four million are Latino, about 3.5 million are White, 1.1 million are Asian/Pacific Islander and about one million are African-American. See Los Angeles County, County of Los Angeles Statistical Data (last modified May 12, 1998) 〈http://www.co.la.ca.us/statistics.htm〉.
83. "Environmental justice" describes the goal of remedying the disproportionate burden of environmental pollution and resource degradation experienced by racial and ethnic minorities and poor people. A related term 'environmental racism' has been used to describe the disparate environmental risks borne by racial minorities. Another related but broader term, 'environmental equity', implies that environmental benefits and risks should be borne equally by all segments of society. See U.S. Environmental Protection Agency, Environmental Justice (last modified Dec. 3, 1998) 〈http://www.epa.gov/swerosps/ej/index.html〉 (EPA defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies"); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, NAT'L L.J., Sept. 21, 1992, at S1; Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at A1. See generally CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed. 1993); U.S. ENVIRONMENTAL PROTECTION AGENCY, "ENVIRONMENTAL EQUITY" REDUCING RISK FOR ALL COMMUNITIES (1992).
84. "Environmental justice" describes the goal of remedying the disproportionate burden of environmental pollution and resource degradation experienced by racial and ethnic minorities and poor people. A related term 'environmental racism' has been used to describe the disparate environmental risks borne by racial minorities. Another related but broader term, 'environmental equity', implies that environmental benefits and risks should be borne equally by all segments of society. See U.S. Environmental Protection Agency, Environmental Justice (last modified Dec. 3, 1998) 〈http://www.epa.gov/swerosps/ej/index.html〉 (EPA defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies"); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, NAT'L L.J., Sept. 21, 1992, at S1; Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at A1. See generally CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed. 1993); U.S. ENVIRONMENTAL PROTECTION AGENCY, "ENVIRONMENTAL EQUITY" REDUCING RISK FOR ALL COMMUNITIES (1992).
85. "Environmental justice" describes the goal of remedying the disproportionate burden of environmental pollution and resource degradation experienced by racial and ethnic minorities and poor people. A related term 'environmental racism' has been used to describe the disparate environmental risks borne by racial minorities. Another related but broader term, 'environmental equity', implies that environmental benefits and risks should be borne equally by all segments of society. See U.S. Environmental Protection Agency, Environmental Justice (last modified Dec. 3, 1998) 〈http://www.epa.gov/swerosps/ej/index.html〉 (EPA defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies"); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, NAT'L L.J., Sept. 21, 1992, at S1; Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at A1. See generally CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed. 1993); U.S. ENVIRONMENTAL PROTECTION AGENCY, "ENVIRONMENTAL EQUITY" REDUCING RISK FOR ALL COMMUNITIES (1992).
86. "Environmental justice" describes the goal of remedying the disproportionate burden of environmental pollution and resource degradation experienced by racial and ethnic minorities and poor people. A related term 'environmental racism' has been used to describe the disparate environmental risks borne by racial minorities. Another related but broader term, 'environmental equity', implies that environmental benefits and risks should be borne equally by all segments of society. See U.S. Environmental Protection Agency, Environmental Justice (last modified Dec. 3, 1998) 〈http://www.epa.gov/swerosps/ej/index.html〉 (EPA defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies"); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, NAT'L L.J., Sept. 21, 1992, at S1; Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at A1. See generally CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed. 1993); U.S. ENVIRONMENTAL PROTECTION AGENCY, "ENVIRONMENTAL EQUITY" REDUCING RISK FOR ALL COMMUNITIES (1992).
87. "Environmental justice" describes the goal of remedying the disproportionate burden of environmental pollution and resource degradation experienced by racial and ethnic minorities and poor people. A related term 'environmental racism' has been used to describe the disparate environmental risks borne by racial minorities. Another related but broader term, 'environmental equity', implies that environmental benefits and risks should be borne equally by all segments of society. See U.S. Environmental Protection Agency, Environmental Justice (last modified Dec. 3, 1998) 〈http://www.epa.gov/swerosps/ej/index.html〉 (EPA defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies"); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, NAT'L L.J., Sept. 21, 1992, at S1; Roberto Suro, Pollution-Weary Minorities Try Civil Rights Tack, N.Y. TIMES, Jan. 11, 1993, at A1. See generally CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed. 1993); U.S. ENVIRONMENTAL PROTECTION AGENCY, "ENVIRONMENTAL EQUITY" REDUCING RISK FOR ALL COMMUNITIES (1992).
88. The term "people of color" refers to racial and ethnic minorities (other than of European descent) in the aggregate, including Latinos, African-Americans, Asian-Pacific Islanders, Native Americans and other "non-Whites". The term "minority" has lost relevance, since in Los Angeles minorities taken together are in the majority. See Los Angeles County, supra note
89. The population of the entire State of California has recently become "majority minority", with the makeup of the U.S. population expected to follow the same trend.
90. See Kristina Lindgren, Smog Affects Poor, Young, Nonwhite the Most; Research: Air pollution tends to be worst in low-income area of Southern California, economists claim. Youth suffer playing outdoors, L.A. TIMES, May 21, 1992, at B8.
91. See discussion infra Part II.B.1 (on the experience in Los Angeles) and Part III.B (on the broader policy implications). The environmental justice question frames the central analysis in this article because until recently few claims had been made as to whether pollution trading programs affect environmental justice. As an unresolved concern, the environmental justice impacts of pollution trading demand close scrutiny. Also, since trading advocates assert that equivalent reductions in air pollution will be provided through pollution trading compared to technology-based regulations, we examine this claim in depth.
92. See South Coast Air Quality Management District, The Southland's War on
93. See South Coast Air Quality Management District, The Southland's War on Smog: Fifty Years of Progress Toward Clean Air, Part 1 (last modified Mar. 4, 1997) 〈http://www.aqmd.gov/monthly/marchcov.html〉. Oil companies and the Chamber of Commerce mounted stiff opposition to air quality regulations as early as 1947 when they opposed the repeal of a state law giving manufacturers the right to "necessary" discharge of smoke and fumes, and the creation of an air pollution permit system. See id.
94. See Steve Padilla, Coalition Sees High Costs, Lost Jobs in AQMD Clean Air Plan, L.A. TIMES, Feb. 7, 1990, at B1
95. (the air quality plan includes 120 rules which, among other things, restrict the use of certain chemicals or mandate extra pollution controls on manufacturing). See generally Daniel P. Selmi, Transforming Economic Incentives From Theory to Reality: The Marketable Permit Program of the South Coast Air Quality Management District, 24 ENVTL. L. RPTR. 10,695 (1994); SOUTH COAST Am QUALITY MANAGEMENT DISTRICT & SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS, AIR QUALITY MANAGEMENT PLAN: SOUTH COAST AIR BASIN (1989). This visionary plan identified the need for a virtual phase-out in the use and combustion of petrochemical-based fuels and products in order to meet health standards for pollutants in smog. It divided proposed air pollution control measures into three tiers: Tier I were already available technologies, Tier II measures were technologies and management strategies expected to be ready for implementation in the next 10 to 15 years and Tier III measures were based on conceptual technologies not yet developed. See generally Selmi, supra; SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT & SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS, supra.
96. Pub. L. No. 101-549, 104 Stat. 2399 (codified in 42 U.S.C. §§ 7401-671).
97. See Judy Pasternak, AQMD Approves Changes to Region's Clean Air Plan; Pollution: Revision is criticized by environmentalists and small businesses and praised by trade associations, L.A. TIMES, July 13, 1991, at Al;
98. Polesetsky, supra note 45, at 362-65 (noting that the RFG included at various times Chevron, Unocal, Shell, Mobil, Texaco, ARCO, and several of the other largest polluters);
99. Maria Cone, AQMD Plan for Blue Skies Turns Hazy, L.A. Times, Aug. 21, 1993, at B1 (reporting that the largest polluters - oil refineries, power utilities, and major aerospace firms - stand to gain from RECLAIM because they can save millions of dollars a year but that smaller, less-polluting businesses would lose money under RECLAIM).
100. As SCAQMD Executive Officer James Lents wrote to the SCAQMD Board of Directors: [Rule 1610] provides an alternative strategy for reducing emissions at a potentially lower cost . . . [and] adverse impacts on compliance costs for regulated industries will not occur. Businesses affected by District stationary source regulations have shown increasing interest in having the option of implementing mobile source emission control strategies to acquire emissions reduction credits. Proposed Rule 1610 addresses this interest. Letter from James Lents, Executive Officer, SCAQMD, to SCAQMD Board of Directors to the SCAQMD Board (Dec. 28, 1992) (urging certification of the Environmental Assessment for Rule 1610 and adoption of Rule 1610) (on file with author); see also Maria L. La Ganga, Firms Can Earn Pollution Credits by Buying Old Cars; Environment: AQMD approves groundbreaking plan to let companies delay costly smog-reduction efforts, L.A. TIMES, Jan. 9, 1993, at A1.
101. See Goldschein, supra note 13, at 254-55. Though each individual vehicle represents a miniscule portion of the pollution problem, mobile sources collectively represent a significant portion. See id. at 239. Furthermore, a small number of vehicles account for a disproportionate amount of motor vehicle emissions. See id. at 241. The vast majority of these dirty vehicles are older vehicles. See id. Because of minimal or nonexistant emission control equipment, deterioration, and poor maintenance, older vehicles can generate very high emission levels. See id.
102. See Goldschein, supra note 13, at 254-55. Though each individual vehicle represents a miniscule portion of the pollution problem, mobile sources collectively represent a significant portion. See id. at 239. Furthermore, a small number of vehicles account for a disproportionate amount of motor vehicle emissions. See id. at 241. The vast majority of these dirty vehicles are older vehicles. See id. Because of minimal or nonexistant emission control equipment, deterioration, and poor maintenance, older vehicles can generate very high emission levels. See id.
103. See Goldschein, supra note 13, at 254-55. Though each individual vehicle represents a miniscule portion of the pollution problem, mobile sources collectively represent a significant portion. See id. at 239. Furthermore, a small number of vehicles account for a disproportionate amount of motor vehicle emissions. See id. at 241. The vast majority of these dirty vehicles are older vehicles. See id. Because of minimal or nonexistant emission control equipment, deterioration, and poor maintenance, older vehicles can generate very high emission levels. See id.
104. See Goldschein, supra note 13, at 254-55. Though each individual vehicle represents a miniscule portion of the pollution problem, mobile sources collectively represent a significant portion. See id. at 239. Furthermore, a small number of vehicles account for a disproportionate amount of motor vehicle emissions. See id. at 241. The vast majority of these dirty vehicles are older vehicles. See id. Because of minimal or nonexistant emission control equipment, deterioration, and poor maintenance, older vehicles can generate very high emission levels. See id.
105. South Coast Air Quality Management District, Regulation XVI - Mobile Source Offset Programs, Rule 1610(b)(6) (last modified Mar. 11, 1999) 〈http://www.aqmd.gov/rules/html/tofc 16.html〉 [hereinafter SCAQMD, Offset Programs]. Rule 1610 represents a form of open market trading. It does not set an overall cap on emissions which declines each year. Nor does it mandate participation in trading from a tightly restricted universe of participants. Instead, any industry subject to a technology-based regulation listed in Rule 1610 can voluntarily choose to purchase car scrapping credits in lieu of compliance with the industry rules.
106. South Coast Air Quality Management District, Regulation XVI - Mobile Source Offset Programs, Rule 1610(b)(6) (last modified Mar. 11, 1999) 〈http://www.aqmd.gov/rules/html/tofc 16.html〉 [hereinafter SCAQMD, Offset Programs]. Rule 1610 represents a form of open market trading. It does not set an overall cap on emissions which declines each year. Nor does it mandate participation in trading from a tightly restricted universe of participants. Instead, any industry subject to a technology-based regulation listed in Rule 1610 can voluntarily choose to purchase car scrapping credits in lieu of compliance with the industry rules.
107. See Maria Cone, Smog Market to Offer Pollution by the Pound; Environment: RECLAIM, the world's first free-enterprise program to clean up urban air, will make its debut Jan. 1 with the participation of nearly 400 businesses, L.A. TIMES, Dec. 28, 1993, at B1; Selmi, supra note 55, at 10,695-711 (1994) (detailing the development of the RECLAIM program leading up to its final adoption). Originally, RECLAIM was proposed to include trading in volatile organic compounds (VOCs), but that idea was dropped because of practical difficulties with VOC monitoring and enforcement and concern about localized increases in toxic VOC emissions. See discussion infra Part II.B.2 and Part III.C.4.
108. x per year, except certain exempt public service facilities. See South Coast Air Quality Management District, Regulation XX - Regional Clean Air Incentives Market (RECLAIM), Rule 2001(b) (last modified Apr. 15, 1998) 〈http://www.aqmd.gov/rules/html/tofc20.html〉
109. x, emissions from permitted stationary source facilities in the Basin. See Selmi, supra note 55, at 10,698.
110. See SCAQMD, RECLAIM Rules, supra note 62, at Rule 2002(e)(1).
111. See Cone, supra note 61, at B1.
112. For example, the SCAQMD Annual Report for 1996 states, in 1996 [SCAQMD] continued its efforts to increase flexibility, streamline requirements and reduce fees for businesses under [its] Regulatory Reform Initiatives. For example, [SCAQMD] adopted a novel and widely heralded measure to allow businesses to help meet their air pollution reduction requirements by scrapping old lawn and gardening equipment, rather than employing costly new controls at their facilities. South Coast Air Quality Management District, South Coast Air Quality Management District 1996 Annual Report (last modified March 10, 1997) 〈http://www.aqmd.gov/pubinfo/ 96annual.html〉.
113. See South Coast Air Quality Management District, Regulation XXV - Intercredit Trading, Rule 2506 (last modified Dec. 23, 1997) 〈http://www.aqmd.gov/rules/html/tofc25. html〉 [hereinafter SCAQMD, Intercredit Trading]; South Coast Air Quality Management District, Board Meeting Date: April 11, 1997 Agenda No. 37, Adopt Proposed Rule 2506 - Area Source Credits (last modified Apr. 10, 1997) 〈http://www.aqmd.gov/hb/970437a.html〉. Interestingly, Rule 2506 specifically states that "[u]se of ASC's pursuant to any other District rule or regulation prior to approval by EPA into the SIP of such rule or regulation may be subject to enforcement action pursuant to the federal Clean Air Act." SCAQMD, Intercredit Trading, at Rule 2506(k)(2).
114. See South Coast Air Quality Management District, Regulation XXV - Intercredit Trading, Rule 2506 (last modified Dec. 23, 1997) 〈http://www.aqmd.gov/rules/html/tofc25. html〉 [hereinafter SCAQMD, Intercredit Trading]; South Coast Air Quality Management District, Board Meeting Date: April 11, 1997 Agenda No. 37, Adopt Proposed Rule 2506 - Area Source Credits (last modified Apr. 10, 1997) 〈http://www.aqmd.gov/hb/970437a.html〉. Interestingly, Rule 2506 specifically states that "[u]se of ASC's pursuant to any other District rule or regulation prior to approval by EPA into the SIP of such rule or regulation may be subject to enforcement action pursuant to the federal Clean Air Act." SCAQMD, Intercredit Trading, at Rule 2506(k)(2).
115. See South Coast Air Quality Management District, Regulation XXV - Intercredit Trading, Rule 2506 (last modified Dec. 23, 1997) 〈http://www.aqmd.gov/rules/html/tofc25. html〉 [hereinafter SCAQMD, Intercredit Trading]; South Coast Air Quality Management District, Board Meeting Date: April 11, 1997 Agenda No. 37, Adopt Proposed Rule 2506 - Area Source Credits (last modified Apr. 10, 1997) 〈http://www.aqmd.gov/hb/970437a.html〉. Interestingly, Rule 2506 specifically states that "[u]se of ASC's pursuant to any other District rule or regulation prior to approval by EPA into the SIP of such rule or regulation may be subject to enforcement action pursuant to the federal Clean Air Act." SCAQMD, Intercredit Trading, at Rule 2506(k)(2).
116. See SCAQMD, Intercredit Trading, supra note 66, at Rule 2506(a), Rule 2506(k)(1).
117. See SCAQMD, Offset Programs, supra note 60, at Rule 1605.
118. See id. at Rule 1612.
119. See id. at Rule 1613.
120. See id. at Rule 1620.
121. See id. at Rule 1623. See also Maria Cone, Lawn Mower Buyback Plan Approved; Smog: Policy will let firms purchase and scrap homeowners' gas-powered equipment in exchange for pollution credits, L.A. TIMES, May 11, 1996, at A20.
122. See id. at Rule 1623. See also Maria Cone, Lawn Mower Buyback Plan Approved; Smog: Policy will let firms purchase and scrap homeowners' gas-powered equipment in exchange for pollution credits, L.A. TIMES, May 11, 1996, at A20.
123. See Bill Kelly, Intercredit Trading Market Proposed, 3 AQMD ADVISOR 4, 4-5 (March 1996); Howard Fine, AQMD Banking on Broader Smog Credit Plan, ORANGE CO. BUS. J., Feb. 12, 1996, at 3 (noting that the intercredit trading program would not result in any additional emissions reductions, but rather make it easier for companies to reduce emissions under existing rules).
124. See Bill Kelly, Intercredit Trading Market Proposed, 3 AQMD ADVISOR 4, 4-5 (March 1996); Howard Fine, AQMD Banking on Broader Smog Credit Plan, ORANGE CO. BUS. J., Feb. 12, 1996, at 3 (noting that the intercredit trading program would not result in any additional emissions reductions, but rather make it easier for companies to reduce emissions under existing rules).
125. See SCAQMD, Intercredit Trading, supra note 66, at Rule 2501; South Coast Air Quality Management District, AQMD News - AQMD Approves Air Quality Investment Program, (last modified Feb. 23, 1999) 〈http://www.aqmd.gov/news1/Archives/aqip1.html〉 [hereinafter SCAQMD, Air Quality Investment Program].
126. See SCAQMD, Intercredit Trading, supra note 66, at Rule 2501; South Coast Air Quality Management District, AQMD News - AQMD Approves Air Quality Investment Program, (last modified Feb. 23, 1999) 〈http://www.aqmd.gov/news1/Archives/aqip1.html〉 [hereinafter SCAQMD, Air Quality Investment Program].
127. See SCAQMD, Intercredit Trading, supra note 66, at Rule 2501; South Coast Air Quality Management District, AQMD News - AQMD Approves Air Quality Investment Program, (last modified Feb. 23, 1999) 〈http://www.aqmd.gov/news1/Archives/aqip1.html〉 [hereinafter SCAQMD, Air Quality Investment Program].
128. See South Coast Air Quality Management District, Board Meeting Date: March 14, 1997 Agenda No. 2, Set Public Hearing April 11, 1997 to Adopt Proposed Rule 2501 - Air Quality Investment Program (last modified Mar. 10, 1997) 〈http://www.aqmd.gov/ hb/97032a.html〉; South Coast Air Quality Management District, Board Meeting Date: February 12, 1999 Agenda No. 18, Rule and Control Measure Forecast (last modified Feb. 9, 1999) 〈http://www.aqmd.gov/hb/990218a.html〉.
129. See South Coast Air Quality Management District, Board Meeting Date: March 14, 1997 Agenda No. 2, Set Public Hearing April 11, 1997 to Adopt Proposed Rule 2501 - Air Quality Investment Program (last modified Mar. 10, 1997) 〈http://www.aqmd.gov/ hb/97032a.html〉; South Coast Air Quality Management District, Board Meeting Date: February 12, 1999 Agenda No. 18, Rule and Control Measure Forecast (last modified Feb. 9, 1999) 〈http://www.aqmd.gov/hb/990218a.html〉.
130. Recall that the 1990 Clean Air Act Amendments authorized states and regions to develop EIPs as central policy strategies for reducing urban smog. See discussion supra Part I.B.
131. See Economic Incentive Program Rules, 59 Fed. Reg. 16,609, 16,710 (1994).
132. See Open Market Trading Rule for Ozone Smog Precursors, 60 Fed. Reg. 39,668 (1995) (to be codified at 40 C.F.R. Ch. 1) (proposed Aug. 3, 1995); Open Market Trading Rule for Ozone Smog Precursors, 60 Fed. Reg. 44,290 (1995) (to be codified at 40 C.F.R. Ch. 1) (proposed Aug. 25, 1995). Due to concerns raised by environmentalists, the Open Market Trading Rule was never approved as a final federal regulation by EPA, but serves instead as guidance to the states and regional districts.
133. Air pollution sources fall into three categories. "Mobile sources" include autos, trucks and other transportation related activities. "Stationary sources" include factories, power plants and other discrete, fixed facilities. "Area sources" include all other air pollution emitted by many diverse small sources, such as from the use of consumer products like paints, barbecue grills, and from small stationary sources.
134. See discussion infra Part II.B.1 and Part III.B.
135. See discussion infra Part II.B.2-3 and Part III.C.
136. See Robert Perciaseppe, Address at Joint Meeting of the Enforcement Subcommittee and Air & Water Subcommittee of the National Environmental Justice Advisory Council (Dec. 9, 1998) (on file with authors).
137. See Exec. Order No. 12898, 59 Fed. Reg. 7629 (1994) (federal policy requires that environmental injustice be assessed and addressed). See discussion infra Part III.B.
138. See Declaration of Bruce Lohmann in Support of Complainants Opposition to Respondents' Response to Environmental Justice Complaint at 22, Communities for a Better Environment v. South Coast Air Quality Management Dist., EPA File No.10 R-97-R9 (US EPA, Office of Civil Rights 1998) ("[T]he cars that were scrapped came from all over the South Coast Air Basin, a four-county area.") [hereinafter Lohmann Declaration]; South Coast Air Quality Management District, Rule 1610/A11 Vehicles Scrapped (undated map) (on file with authors).
139. See discussion infra, Part IV.A.
140. See generally Letter from Richard Toshiyuki Drury et al., Communities for a Better Environment, to Anne Goode, U.S. Environmental Protection Agency (Nov. 23, 1998) (Re: CBE et al. v. SCAQMD et al., No. 10R-97-R9; CBE's response to SCAQMD's June 26, 1998 Brief in the Title VI Civil Rights Act complaint filed against the SCAQMD over the car scrapping program) (on file with authors).
141. The equipment is similar to the vapor control nozzles common at gasoline stations in many states, only much larger.
142. Vapor recovery during marine loading was required by SCAQMD, Rule 1142, which EPA approved for inclusion in the State Implementation Plan, making the requirement enforceable under the federal Clean Air Act. See Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision; San Diego County Air Pollution Control District; San Joaquin Valley Unified Air Pollution Control District; South Coast Air Quality Management District, 59 Fed. Reg. 64,132 (1994) (codified at 40 C.F.R. Part 52) (proposed Dec. 13, 1994).
143. See Shipra Bansal & Scott Kuhn, Stopping an Unfair Trade: Environmental Justice, Pollution Trading, and Cumulative Impacts in Los Angeles, ENVTL. L. NEWS, Spring 1998, at 16, 17-18. A marine vapor recovery system can reduce VOC emissions by at least ninety-five percent during any loading, lightering, ballasting or housekeeping events. See id. at 20.
144. See Shipra Bansal & Scott Kuhn, Stopping an Unfair Trade: Environmental Justice, Pollution Trading, and Cumulative Impacts in Los Angeles, ENVTL. L. NEWS, Spring 1998, at 16, 17-18. A marine vapor recovery system can reduce VOC emissions by at least ninety-five percent during any loading, lightering, ballasting or housekeeping events. See id. at 20.
145. See Los Angeles County Building and Construction Trades Council and the Steamfitters and Pipefitters Local 250, Comments on the Draft Environmental Impact Report for the Renewal of Unocal's Lease for Berths 148-151, in FINAL ENVIRONMENTAL IMPACT REPORT FOR BERTHS 148-151 PORT OF Los ANGELES 17, 23 (1996). The Environmental Impact Report documented that workers at the marine terminal would be exposed to a total cancer risk of 162 in a million if that facility's lease was renewed to allow four additional ships per month to unload.
146. The Clean Air Act establishes that if technology-based standards do not reduce life-time excess cancer risks to the individual most exposed to hazardous air emissions to less than one in one million, the EPA Administrator shall promulgate standards under this subsection for such source category, in order to protect human health and the environment. See 42 U.S.C. § 7412(f)(2)(A) (1994). The same risk level forms the basis for delisting hazardous air pollutants providing that the cancer risks from sources is less than one on a million. See 42 U.S.C. § 7412(c)(9)(b)(i) (1994).
147. The average "background" cancer risk from exposure to toxic chemicals in the air of Los Angeles is 426 in one million. See Getter, supra note 48, at A1.
148. Similar trading patterns have developed under RECLAIM. The region's largest polluters, particularly refineries, have been the most active purchasers of RECLAIM emission reduction credits. See Douglas Young, Unocal Stocking up on Pollution Credit as Refinery Selloff Nears, L.A. Bus. J., Mar. 17, 1997, at 13 (noting that Unocal and Chevron were the top two purchasers of pollution credits in 1996. Three other refineries were among the top 10 purchasers: Mobil, Texaco, and Powerine Oil Company).
149. See Bansal & Kuhn, supra note 89, at 18. The South Coast Air Basin is home to 13,862,513 people. Of this number, 4,988,739 are people of color and 8,873,774 are white. See U.S. Census Bureau, Census Bureau Population topics and Household Economic Topics (visited Apr. 1, 1999) 〈http://www.census.gov/population/www/index.html〉. Los Angeles County has a population of 8,863,164, and 43.1 percent are people of color. See Los Angeles County, supra note 49. The population demographics around the marine terminals were determined using EPA's Landview software program. See U.S. Environmental Protection Agency, LandView III Mapping Tool (last modified June 8, 1998) 〈http://www.epa.gov/swerosps/bf/lvinfo.htm〉 (LandView III uses U.S. census data to determine population demographics around selected facilities).
150. See Bansal & Kuhn, supra note 89, at 18. The South Coast Air Basin is home to 13,862,513 people. Of this number, 4,988,739 are people of color and 8,873,774 are white. See U.S. Census Bureau, Census Bureau Population topics and Household Economic Topics (visited Apr. 1, 1999) 〈http://www.census.gov/population/www/index.html〉. Los Angeles County has a population of 8,863,164, and 43.1 percent are people of color. See Los Angeles County, supra note 49. The population demographics around the marine terminals were determined using EPA's Landview software program. See U.S. Environmental Protection Agency, LandView III Mapping Tool (last modified June 8, 1998) 〈http://www.epa.gov/swerosps/bf/lvinfo.htm〉 (LandView III uses U.S. census data to determine population demographics around selected facilities).
151. A review of the 1994 Toxic Release Inventory data reveals that 1,964,445 pounds of air pollution and 198,956 pounds of water pollution was released from facilities in the Wilmington-San Pedro area. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT/CALIFORNIA STATE UNIVERSITY FULLERTON FOUNDATION, THE DISTRIBUTION OF CURRENT AND FUTURE EXPOSURE TO OZONE, FINE PARTICULATE MATTER, CARBON MONOXIDE, AND NITROGEN DIOXIDE AMONG DEMOGRAPHIC GROUPS IN THE SOUTH COAST AIR BASIN, FINAL REPORT 5 (April 1993); ERIC MANN, L.A.'s LETHAL AIR: NEW STRATEGIES FOR POLICY, ORGANIZING, AND ACTION 27-34 (1991) (noting that four of the country's top twenty air polluters are located in the Wilmington and San Pedro areas).
152. A review of the 1994 Toxic Release Inventory data reveals that 1,964,445 pounds of air pollution and 198,956 pounds of water pollution was released from facilities in the Wilmington-San Pedro area. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT/CALIFORNIA STATE UNIVERSITY FULLERTON FOUNDATION, THE DISTRIBUTION OF CURRENT AND FUTURE EXPOSURE TO OZONE, FINE PARTICULATE MATTER, CARBON MONOXIDE, AND NITROGEN DIOXIDE AMONG DEMOGRAPHIC GROUPS IN THE SOUTH COAST AIR BASIN, FINAL REPORT 5 (April 1993); ERIC MANN, L.A.'s LETHAL AIR: NEW STRATEGIES FOR POLICY, ORGANIZING, AND ACTION 27-34 (1991) (noting that four of the country's top twenty air polluters are located in the Wilmington and San Pedro areas).
153. See SCAQMD, Smog and Health, supra note 47. In 1991, a study by Dr. Jane Hall of Cal State Fullerton showed that minorities as a whole were exposed more often to poor air quality since affordable housing is located where the air is more polluted. African-Americans and Hispanics generally breathe the worst air, partly because they tend to work in outdoor occupations. See MANN, supra note 95, at 31 (asserting that in Los Angeles, seventy-one percent of African Americans and fifty percent of Latinos live in the areas with the worst air quality); Susan Moffat, Minorities Found More Likely to Live Near Toxic Sites, L.A. Times, Aug. 30, 1995, at B1 (people of color in Los Angeles County are three times more likely than whites to live within half a mile of hazardous waste treatment or dumping centers); Eric Mann, L.A.'s Smogbusters: Pollution in Los Angeles, THE NATION, Sept. 17, 1990, at 257, 268 (1990) (noting that the Latino and Black communities in East Los Angeles, Huntington Park, and Watts are disproportionately impacted by industrial facilities and pollution). See also Lindgren, supra note 52, at B8.
154. See SCAQMD, Smog and Health, supra note 47. In 1991, a study by Dr. Jane Hall of Cal State Fullerton showed that minorities as a whole were exposed more often to poor air quality since affordable housing is located where the air is more polluted. African-Americans and Hispanics generally breathe the worst air, partly because they tend to work in outdoor occupations. See MANN, supra note 95, at 31 (asserting that in Los Angeles, seventy-one percent of African Americans and fifty percent of Latinos live in the areas with the worst air quality); Susan Moffat, Minorities Found More Likely to Live Near Toxic Sites, L.A. Times, Aug. 30, 1995, at B1 (people of color in Los Angeles County are three times more likely than whites to live within half a mile of hazardous waste treatment or dumping centers); Eric Mann, L.A.'s Smogbusters: Pollution in Los Angeles, THE NATION, Sept. 17, 1990, at 257, 268 (1990) (noting that the Latino and Black communities in East Los Angeles, Huntington Park, and Watts are disproportionately impacted by industrial facilities and pollution). See also Lindgren, supra note 52, at B8.
155. See SCAQMD, Smog and Health, supra note 47. In 1991, a study by Dr. Jane Hall of Cal State Fullerton showed that minorities as a whole were exposed more often to poor air quality since affordable housing is located where the air is more polluted. African-Americans and Hispanics generally breathe the worst air, partly because they tend to work in outdoor occupations. See MANN, supra note 95, at 31 (asserting that in Los Angeles, seventy-one percent of African Americans and fifty percent of Latinos live in the areas with the worst air quality); Susan Moffat, Minorities Found More Likely to Live Near Toxic Sites, L.A. Times, Aug. 30, 1995, at B1 (people of color in Los Angeles County are three times more likely than whites to live within half a mile of hazardous waste treatment or dumping centers); Eric Mann, L.A.'s Smogbusters: Pollution in Los Angeles, THE NATION, Sept. 17, 1990, at 257, 268 (1990) (noting that the Latino and Black communities in East Los Angeles, Huntington Park, and Watts are disproportionately impacted by industrial facilities and pollution). See also Lindgren, supra note 52, at B8.
156. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT/CALIFORNIA STATE UNIVERSITY FULLERTON FOUNDATION, supra note 95, at 5.
157. The study looked at manufacturing facilities required to report environmental releases of hazardous chemicals under the Toxic Release Inventory (TRI) program of the Emergency Planning and Community Right-to-Know Act (EPCRA). See 42 U.S.C. § 11001 (1994).
158. See generally LAURETTA M. BuRKE, ENVIRONMENTAL EQUITY IN Los ANGELES (1993) (National Center for Geographic Information and Analysis Technical Report 93-6).
159. See Joel Thomas Boer & Dr. James L. Sadd, In Whose Back Yard? The Demography of Populations Proximate to Hazardous Waste Facilities in Los Angeles County, ENVTL L. NEWS 10, 14 (1996).
160. See id.
161. The term "inter-pollutant trading" refers to the allowing of emissions of one pollutant to persist or increase in exchange for reducing emissions of a different pollutant somewhere else. In the discussion, supra, hot-spots resulted from allowing concentrated emissions in one location in exchange for widely dispersed emission reductions throughout the region. Through inter-pollutant trading, the continued (or increased) emissions of more hazardous pollutants could be justified by other reductions in less hazardous pollutants.
162. See SCAQMD, Offset Programs, supra note 60, at Rule 1610(a).
163. See Bansal & Kuhn, supra note 89, at 18; U.S. Environmental Protection Agency, Office of Air Quality Planning & Standards, Speciation Profiles for Volatile Organic Compounds, USEPA SPECIATE software.
164. Using USEPA software called SPECIATE, Communities for a Better Environment's staff scientist, Shipra Bansal downloaded the average chemical breakdowns for VOC emissions at petroleum product storage facilities (a surrogate for marine terminals) and for VOC emissions out of tailpipes. See Bansal & Kuhn, supra note 89, at 18. While benzene makes up to thirty-two percent of fugitive emissions at the marine terminals according to this model, it makes up less than two percent of tailpipe emissions. See id. at 19. Emissions from marine terminals have up to 16 times more benzene than automobile air emissions. See id. No source testing data are available to verify the content of benzene or other toxic chemicals in the marine terminal VOC emissions. The same VOC profiles showed that twenty-two percent of the emissions by weight from marine terminals consisted of chemicals not found at all in tailpipe emissions. See id.
165. Benzene is listed as a "hazardous air pollutant" in the 1990 Clean Air Act and is on the California Proposition 65 list of cancer-causing chemicals. See J. HARTE, ET AL., TOXICS A TO Z 233-35 (1991);
166. Bansal & Kuhn, supra note 89, at 19; SAFE DRINKING WATER AND Toxic ENFORCEMENT ACT OF 1986 (PROPOSITION 65), CAL. HEALTH & SAFETY CODE § 25249.8 (West 1998).
167. x) in the presence of sunlight to form photochemical smog, including ground level ozone for which state and federal health standards have been established.
168. See Recommended Policy on Control of Volatile Organic Compounds, 42 Fed. Reg. 35,314 (1977); Requirements for Preparation, Adoption and Submittal of Implementation Plans; Approval and Promulgation of Implementation Plans, 57 Fed. Reg. 3941 (1992) (codified at 40 C.F.R. Parts 51 and 52) (proposed Feb. 3, 1992) (re-defining VOC). See Air Quality: Revision to Definition of Volatile Organic Compounds - Exclusion of Acetone, 60 Fed. Reg. 31,635 (1995) (codified at 40 C.F.R. Part 51) (proposed June 16, 1995) (citing William P. L. Carter, Development of Ozone Reactivity Scales for Volatile Organic Compounds, J. AIR & WAST MGT. ASSOC. (1994). Table III of Carter's paper gives a list of organic compounds ranked by a maximum incremental reactivity (MIR) scale, with higher scores for VOCs that are more likely to react to form ground level ozone in smog.).
169. x are precursors to acid rain formation. Combustion gases can act as precursors to the formation of fine particles, or particulate matter, another serious air pollution problem.
170. x are emitted when fossil fuels are burned at a variety of industrial-commercial-institutional combustion sources and transportation-related sources. Hundreds of other co-pollutants are released during combustion of fossil fuels including fine particles, polycyclic aromatic hydrocarbons, mercury and other hazardous air pollutants and products of in-complete combustion. See U.S. ENVIRONMENTAL PROTECTION AGENCY, INDUSTRIAL COMBUSTION COORDINATED RULEMAKING: ORGANIZATIONAL STRUCTURE AND PROCESS 10 (1997).
171. See Selmi, supra note 55, at 10,697.
172. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, RECLAIM PROGRAM THREE-YEAR AUDIT AND PROGRESS REPORT 104-13 (1998) [hereinafter SCAQMD, RECLAIM PROGRAM AUDIT]; Scott L. Johnson & David M. Pekelney, Economic assessment of the Regional Clean Air Incentives Market: a new emissions trading program for Los Angeles, 72 LAND ECONOMICS 277, 292 (1996) (reporting the methodology used to assess the potential economic and environmental impacts of the RECLAIM emissions trading programs). Johnson and Pekelney report that RECLAIM will result in "changes in geographic distribution [which] include peak ozone concentrations that are lower in the western and central areas of the Basin and higher in some areas of southern Los Angeles County and northern Orange County, compared to CAC [command-and-control] regulations." See id.
173. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, RECLAIM PROGRAM THREE-YEAR AUDIT AND PROGRESS REPORT 104-13 (1998) [hereinafter SCAQMD, RECLAIM PROGRAM AUDIT]; Scott L. Johnson & David M. Pekelney, Economic assessment of the Regional Clean Air Incentives Market: a new emissions trading program for Los Angeles, 72 LAND ECONOMICS 277, 292 (1996) (reporting the methodology used to assess the potential economic and environmental impacts of the RECLAIM emissions trading programs). Johnson and Pekelney report that RECLAIM will result in "changes in geographic distribution [which] include peak ozone concentrations that are lower in the western and central areas of the Basin and higher in some areas of southern Los Angeles County and northern Orange County, compared to CAC [command-and-control] regulations." See id.
174. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, RECLAIM PROGRAM THREE-YEAR AUDIT AND PROGRESS REPORT 104-13 (1998) [hereinafter SCAQMD, RECLAIM PROGRAM AUDIT]; Scott L. Johnson & David M. Pekelney, Economic assessment of the Regional Clean Air Incentives Market: a new emissions trading program for Los Angeles, 72 LAND ECONOMICS 277, 292 (1996) (reporting the methodology used to assess the potential economic and environmental impacts of the RECLAIM emissions trading programs). Johnson and Pekelney report that RECLAIM will result in "changes in geographic distribution [which] include peak ozone concentrations that are lower in the western and central areas of the Basin and higher in some areas of southern Los Angeles County and northern Orange County, compared to CAC [command-and-control] regulations." See id.
175. See SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, RECLAIM PROGRAM THREE-YEAR AUDIT AND PROGRESS REPORT 104-13 (1998) [hereinafter SCAQMD, RECLAIM PROGRAM AUDIT]; Scott L. Johnson & David M. Pekelney, Economic assessment of the Regional Clean Air Incentives Market: a new emissions trading program for Los Angeles, 72 LAND ECONOMICS 277, 292 (1996) (reporting the methodology used to assess the potential economic and environmental impacts of the RECLAIM emissions trading programs). Johnson and Pekelney report that RECLAIM will result in "changes in geographic distribution [which] include peak ozone concentrations that are lower in the western and central areas of the Basin and higher in some areas of southern Los Angeles County and northern Orange County, compared to CAC [command-and-control] regulations." See id.
176. See U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Clearinghouse for Inventories and Emissions Factors, COMPILATION OF AIR POLLUTANT EMISSIONS FACTORS, AP-42, FIFTH EDITION, VOL. I: STATIONARY POINT AND AREA SOURCES 3-4 (1995) (last modified July 3, 1997) 〈http://www.epa.gov/ttnchie1/ap42pdf/c00s00. pdf〉 [hereinafter U.S. EPA, AP-42]. A variety of techniques are available to estimate emissions. The reliability of these estimates increases with sophistication of method and cost of methods. In general, direct source testing and continuous emissions monitoring provide better representation of a tested source's emissions than using emission factors or engineering judgment.
177. See discussion infra Part III.C.4. There are inherent problems with monitoring and enforcement associated with pollution trading. In Los Angeles, noncompliance rates by industry are high for the pollution monitoring requirements of the RECLAIM trading program.
178. See U.S. EPA, AP-42, supra note 113, at 2. "Because emission factors essentially represent an average of a range of emission rates, approximately half of the subject sources will have emission rates greater than the emission factor and the other half will have emission rates less than the factor. As such, a permit limit using an AP-42 emission factor would result in half of the sources being in noncompliance." Id.
179. See Letter from Jim Jenal, Richard Toshiyuki Drury & Alan Ramo, Communities for a Better Environment (CBE), to James M. Lents, Ph.D., Executive Officer, SCAQMD 4 (June 25, 1993) (CBE's COMMENTS ON DRAFT RECLAIM RULES AND ENVIRONMENTAL ASSESSMENT) (on file with authors). See also Selmi, supra note 55, at 10,705.
180. Cf. Letter from Jim Jenal, Richard Toshiyuki Drury & Alan Ramo to James M. Lents, supra note 116, at 4.
181. th ed.)).
182. See Letter from Wang, Mgr., Oper. & Envtl. Issues, Western States Petroleum Association, to Jim Lents, Exec. Officer, SCAQMD 3 (April 27, 1994) (source testing needed to ensure compliance with Rule 1142 limits) (on file with authors).
183. See Letter from Richard Toshiyuki Drury et al., to Anne Goode, supra note 86 (citing UNOCAL, VAPOR SOURCES: PERMIT APPLICATION SECTION 5 (Mar. 25, 1992) which contains data supporting a permit to install a vapor reduction system at the Wilmington Marine Terminal). The actual, measured emission rates in Unocal's Vapor Sources are significantly higher, from 12 to 1247 times higher, than what Unocal reported to SCAQMD on its Rule 1142/1610 compliance forms. Adding together all of Unocal's under-reported and unreported marine loading emissions from 245 loading events from January 12, 1995 through March 31, 1998, reveals that Unocal purchased 3 million fewer pounds worth of Mobile Source Emission Reduction Credits than required.
184. Communities for a Better Environment (CBE) is a non-governmental organization that works with people affected by industrial pollution to improve environmental health and achieve environmental justice. The authors are current and former employees of CBE.
185. See Lohmann Declaration, supra note 84, at 11-12.; Declaration of Bruce Lohmann in Support of Plaintiffs' Motion for Preliminary Injunction at 11-12, Communities for a Better Environment v. Chevron Corp. (1998) (on file with authors).
186. See Lohmann Declaration, supra note 84, at 11.
187. See Letters from David P. Howekamp, Director, Air Division, EPA Region 9, to Barry Wallerstein, Acting Executive Officer, SCAQMD (June 23, 1998) (Aug. 12, 1998) (on file with authors).
188. See Lohmann Declaration, supra note 84, at 2-3; SCAQMD, Offset Programs, supra note 60, at Rule 1610(i).
189. See Lohmann Declaration, supra note 84, at 2, 21.
190. See id. at 5-6, 10. See also South Coast Air Quality Management District, Board Meeting Date: June 12, 1998 Agenda No. 4 (citing SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ATTACHMENT C: RULE 1610 OLD VEHICLE SCRAPPING SURVEY REPORT (March 1998)) (last modified June 26, 1998) 〈http://www.aqmd.gov/hb/98064a.html〉 [hereinafter SCAQMD, Board Meeting June 12, 1998].
191. See id. at 5-6, 10. See also South Coast Air Quality Management District, Board Meeting Date: June 12, 1998 Agenda No. 4 (citing SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ATTACHMENT C: RULE 1610 OLD VEHICLE SCRAPPING SURVEY REPORT (March 1998)) (last modified June 26, 1998) 〈http://www.aqmd.gov/hb/98064a.html〉 [hereinafter SCAQMD, Board Meeting June 12, 1998].
192. See id. at 5-6, 10. See also South Coast Air Quality Management District, Board Meeting Date: June 12, 1998 Agenda No. 4 (citing SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, ATTACHMENT C: RULE 1610 OLD VEHICLE SCRAPPING SURVEY REPORT (March 1998)) (last modified June 26, 1998) 〈http://www.aqmd.gov/hb/98064a.html〉 [hereinafter SCAQMD, Board Meeting June 12, 1998].
193. Each endpoint in the estimated range of the number of scrapped cars represents an estimate from a different source, rounded to the nearest 100,000. Lohman, based on interviews with licensed car scrappers, estimated that 60,000 to 120,000 cars were scrapped each year in the South Coast Air Basin, a range he then refined to 75,000 to 100,000 scrapped cars annually. See Lohmann Declaration, supra note 84, at 10. Other SCAQMD staff concluded that an annual average of 236,000 cars were scrapped from 1994 to 1997, based on statewide data received by the Department of Motor Vehicles on junked cars, adjusted to account for 'junked' vehicles that were revived. See South Coast AirQuality Management District, Presentation to the Technology Committee Meeting (Apr. 24, 1998), reprinted in Lohmann Declaration, supra note 84, Exhibit D, at 5; SCAQMD, Board Meeting June 12, 1998, supra note 126, at Attachment D.
194. Each endpoint in the estimated range of the number of scrapped cars represents an estimate from a different source, rounded to the nearest 100,000. Lohman, based on interviews with licensed car scrappers, estimated that 60,000 to 120,000 cars were scrapped each year in the South Coast Air Basin, a range he then refined to 75,000 to 100,000 scrapped cars annually. See Lohmann Declaration, supra note 84, at 10. Other SCAQMD staff concluded that an annual average of 236,000 cars were scrapped from 1994 to 1997, based on statewide data received by the Department of Motor Vehicles on junked cars, adjusted to account for 'junked' vehicles that were revived. See South Coast AirQuality Management District, Presentation to the Technology Committee Meeting (Apr. 24, 1998), reprinted in Lohmann Declaration, supra note 84, Exhibit D, at 5; SCAQMD, Board Meeting June 12, 1998, supra note 126, at Attachment D.
195. See Lohmann Declaration, supra note 84, at 10.
196. See id. at 7-9.
197. Id. at 7, 11-12.
198. See generally Carl B. Moyer et al., PERSPECTIVES ON VEHICLE SCRAPPING IN AIR QUALITY PROGRAMS, DRAFT FINAL REPORT (July 1995) (prepared for California Electric Transportation Coalition). As the report's abstract and summary states, "[I]t does not appear likely than scrapping can provide a major attainment strategy for a federal ozone nonattainment area classified as Extreme or Severe. . . . New assessments of scrapping are beginning to provide evidence that scrapping cannot become a major part of hydrocarbon and carbon monoxide attainment plans, even if the programs can successfully target high-emitting vehicles through remote-sensing or other measurement means. The supply of vehicles. . . appears too limited to yield much more than about one percent reductions in the inventories of these pollutants." See Bansal & Kuhn, supra note 89, at n.38.
199. See ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS 49 (1997) ("Market values, ripped out of a broader context of socially shared norms, declare that opportunism, cutting corners, taking advantage are not only legitimate but virtuous, since squeezing out the maximum possible price that the market will bear maximizes efficiency.").
200. See U.S. Securities and Exchange Comission, The U.S. Securities and Exchange Commission: What It Is, and What It Does, (last modified Dec. 23, 1996) 〈http://www.sec.gov/ asec/asecart.htm〉. "The SEC is an independent, nonpartisan, quasi-judicial regulatory agency with responsibility for administering the federal securities laws. The purpose of these laws is to protect investors in securities markets that operate fairly and to ensure that investors have access to disclosure of all material information concerning publicly traded securities . . . . Often referred to as the 'truth in securities' law, the Securities Act of 1933 requires that investors receive financial and other significant information concerning securities being offered for public sale. This act also prohibits deceit, misrepresentations and other fraud in the sale of securities. [The Securities Exchange Act of 1934] requires that investors have access to current financial and other information regarding securities, particularly those that trade publicly on exchanges or over-the-counter. This Act also prohibits companies, securities brokerage firms and others from engaging in fraudulent and unfair behavior, for example sales practice abuses and insider trading." (emphasis added) See id.
201. See U.S. Securities and Exchange Comission, The U.S. Securities and Exchange Commission: What It Is, and What It Does, (last modified Dec. 23, 1996) 〈http://www.sec.gov/ asec/asecart.htm〉. "The SEC is an independent, nonpartisan, quasi-judicial regulatory agency with responsibility for administering the federal securities laws. The purpose of these laws is to protect investors in securities markets that operate fairly and to ensure that investors have access to disclosure of all material information concerning publicly traded securities . . . . Often referred to as the 'truth in securities' law, the Securities Act of 1933 requires that investors receive financial and other significant information concerning securities being offered for public sale. This act also prohibits deceit, misrepresentations and other fraud in the sale of securities. [The Securities Exchange Act of 1934] requires that investors have access to current financial and other information regarding securities, particularly those that trade publicly on exchanges or over-the-counter. This Act also prohibits companies, securities brokerage firms and others from engaging in fraudulent and unfair behavior, for example sales practice abuses and insider trading." (emphasis added) See id.
202. See Selmi, supra note 55, at 10,701; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2002(e)(1).
203. See Selmi, supra note 55, at 10,698-699; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 42.
204. x emissions between 1994 and 2000 was established at eleven percent per year. See Selmi, supra note 55, at 10,701.
205. See Driesen, Cheap Fix?, supra note 8, at 60, n.328 (citing CHRIS ROLFE, TURNING DOWN THE HEAT: EMISSIONS TRADING AND CANADIAN IMPLEMENTATION OF THE KYOTO PROTOCOL 311 (1998)). Another California smog trading program, named "SEED," is also based on hot air emissions. Under SEED, the Sacramento Metropolitan Air Quality Management District (SMAQMD) issued pollution credits that were generated by the decommissioning of B-52 bombers that formerly flew out of the region. The SMAQMD issued five tons per year of VOC credits, representing the pollution that used to be released by the bombers. Those credits have been purchased by companies including Intel, Campbell's Soup, Aerojet, and others, which have used to credits to avoid installing pollution control equipment. However, the credits are pure "hot air." Destruction of the bombers was required under the START treaty. Therefore, their pollution would have been eliminated in any case. As a result of the SEED program, the B-52 pollution continues despite the fact that the bombers are gone. In essence, they continue to pollute from the grave. See Letter from Richard Drury et al., Communities for a Better Environment, to Carol Browner, U.S. Environmental Protection Agency (June 12, 1998) (Re: Request that EPA Reject SMAQMD Rules 107, 204, and 205 (the SEED Program)) (citing Chris Bowman, Mather's B-52 Loss May Help Clean Air, SACRAMENTO BEE, Sep. 1, 1996, at B1) (on file with authors).
206. See Driesen, Cheap Fix?, supra note 8, at 60, n.328 (citing CHRIS ROLFE, TURNING DOWN THE HEAT: EMISSIONS TRADING AND CANADIAN IMPLEMENTATION OF THE KYOTO PROTOCOL 311 (1998)). Another California smog trading program, named "SEED," is also based on hot air emissions. Under SEED, the Sacramento Metropolitan Air Quality Management District (SMAQMD) issued pollution credits that were generated by the decommissioning of B-52 bombers that formerly flew out of the region. The SMAQMD issued five tons per year of VOC credits, representing the pollution that used to be released by the bombers. Those credits have been purchased by companies including Intel, Campbell's Soup, Aerojet, and others, which have used to credits to avoid installing pollution control equipment. However, the credits are pure "hot air." Destruction of the bombers was required under the START treaty. Therefore, their pollution would have been eliminated in any case. As a result of the SEED program, the B-52 pollution continues despite the fact that the bombers are gone. In essence, they continue to pollute from the grave. See Letter from Richard Drury et al., Communities for a Better Environment, to Carol Browner, U.S. Environmental Protection Agency (June 12, 1998) (Re: Request that EPA Reject SMAQMD Rules 107, 204, and 205 (the SEED Program)) (citing Chris Bowman, Mather's B-52 Loss May Help Clean Air, SACRAMENTO BEE, Sep. 1, 1996, at B1) (on file with authors).
207. See Driesen, Cheap Fix?, supra note 8, at 60, n.328 (citing CHRIS ROLFE, TURNING DOWN THE HEAT: EMISSIONS TRADING AND CANADIAN IMPLEMENTATION OF THE KYOTO PROTOCOL 311 (1998)). Another California smog trading program, named "SEED," is also based on hot air emissions. Under SEED, the Sacramento Metropolitan Air Quality Management District (SMAQMD) issued pollution credits that were generated by the decommissioning of B-52 bombers that formerly flew out of the region. The SMAQMD issued five tons per year of VOC credits, representing the pollution that used to be released by the bombers. Those credits have been purchased by companies including Intel, Campbell's Soup, Aerojet, and others, which have used to credits to avoid installing pollution control equipment. However, the credits are pure "hot air." Destruction of the bombers was required under the START treaty. Therefore, their pollution would have been eliminated in any case. As a result of the SEED program, the B-52 pollution continues despite the fact that the bombers are gone. In essence, they continue to pollute from the grave. See Letter from Richard Drury et al., Communities for a Better Environment, to Carol Browner, U.S. Environmental Protection Agency (June 12, 1998) (Re: Request that EPA Reject SMAQMD Rules 107, 204, and 205 (the SEED Program)) (citing Chris Bowman, Mather's B-52 Loss May Help Clean Air, SACRAMENTO BEE, Sep. 1, 1996, at B1) (on file with authors).
208. See Driesen, Cheap Fix?, supra note 8, at 60, n.328 (citing CHRIS ROLFE, TURNING DOWN THE HEAT: EMISSIONS TRADING AND CANADIAN IMPLEMENTATION OF THE KYOTO PROTOCOL 311 (1998)). Another California smog trading program, named "SEED," is also based on hot air emissions. Under SEED, the Sacramento Metropolitan Air Quality Management District (SMAQMD) issued pollution credits that were generated by the decommissioning of B-52 bombers that formerly flew out of the region. The SMAQMD issued five tons per year of VOC credits, representing the pollution that used to be released by the bombers. Those credits have been purchased by companies including Intel, Campbell's Soup, Aerojet, and others, which have used to credits to avoid installing pollution control equipment. However, the credits are pure "hot air." Destruction of the bombers was required under the START treaty. Therefore, their pollution would have been eliminated in any case. As a result of the SEED program, the B-52 pollution continues despite the fact that the bombers are gone. In essence, they continue to pollute from the grave. See Letter from Richard Drury et al., Communities for a Better Environment, to Carol Browner, U.S. Environmental Protection Agency (June 12, 1998) (Re: Request that EPA Reject SMAQMD Rules 107, 204, and 205 (the SEED Program)) (citing Chris Bowman, Mather's B-52 Loss May Help Clean Air, SACRAMENTO BEE, Sep. 1, 1996, at B1) (on file with authors).
209. See Selmi, supra note 55, at 10,699. The baseline allocation of pollution credits was further inflated as a result of two other provisions of RECLAIM adopted at industry's insistence. One allows industry to add emission reduction credits previously earned under the limited program in effect before RECLAIM to be added to their baseline allocation. The other provision, in a give away to the oil industry, allowed oil refiners to increase their baseline emissions allocation to reflect the increased refinery pollution associated with reformulated fuels production.
210. x to be emitted over a ten-year period under RECLAIM compared to the emissions projected under the Air Quality Management Plan that it replaced).
211. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 247 (RECLAIM Advisory Committee members Gail Ruderman Feuer, Natural Resources Defense Council and Tim Carmichael, Coalition for Clean Air, in April 16, 1998 letter appended to RECLAIM program report and audit).
212. Id. at 29, 245-246.
213. A State Implementation Plan (SIP) details how compliance with the National Ambient Air Quality Standards will be achieved in each air quality control region (AQCR). To develop a SIP, each state first has to determine existing and projected levels of the criteria air pollutant in each AQCR within the state's baoundaries. See PERCIVAL ET AL., supra note 14, at 792-93.
214. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 29, 245-46.
215. See Steven Church, Report Gives Smog-Trading Program an F Grade, SAN BERNADINO COUNTY SUN, May 8, 1998, at B1; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at id. at 42, 247, 252.
216. See Steven Church, Report Gives Smog-Trading Program an F Grade, SAN BERNADINO COUNTY SUN, May 8, 1998, at B1; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at id. at 42, 247, 252.
217. See Steven Church, Report Gives Smog-Trading Program an F Grade, SAN BERNADINO COUNTY SUN, May 8, 1998, at B1; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at id. at 42, 247, 252.
218. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 38.
219. See id.
220. See id. at 42, 247.
221. x credits would command $11,257 per ton. See id. at 63.
222. x credits would command $11,257 per ton. See id. at 63.
223. x credits would command $11,257 per ton. See id. at 63.
224. See infra Part III.C.
225. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 55-57. A lot of these transactions involved transfers from facilities to third-party brokers and then transfers back again to the facilities when the brokers were unable to sell the credits for a price. More than 400 trades have been recorded in which RECLAIM Trading Credits were actually sold for a real price in the first three years of the RECLAIM program.
226. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1349.
227. See Maria Cone, Anti-Smog Plan Praised, Jeered as Hearings Begin; Environment: Hours of Testimony Reveal Bitter Divisions over Pollution-Trading Concept. Stakes are High for Air Quality and the State's Economy, L. A. Times, Sept. 10, 1993, at A3.
228. x emitted to focusing on the total pounds of air contaminants emitted. For the first time, under RECLAIM, the mass of air contaminant emissions from industrial facilities is limited. This is good for air quality because it creates a level of certainty regarding future emissions. It was, however, a major adjustment for the business community. This "shift in consciousness" needed to occur during the first few years of RECLAIM. The slight over-allocations in the first few years were necessary to allow the shift to occur. SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 242.
229. See id. at 36, 247.
230. See supra Part II.A. on the Intercredit Trading proposal.
231. See Selmi, supra note 55, at 10,698.
232. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1343-46 (objecting to two features of technology-based regulation, that existing permits are free, and they are non-transferable). In calling for marketable permits to be auctioned by the government, Ackerman and Stewart note that their "market reform will be opposed by businesses who (despite their promarket rhetoric) will predictably resist the prospects of buying pollution rights after all these years of polluting for free. . . . See id. at 1344, n.27. "While it is possible to design efficient auction systems that ameliorate, or eliminate entirely, the financial burdens imposed upon polluters", Ackerman and Stewart would "oppose these schemes on principle." See id. They "believe that just as firms are obliged to pay for other raw materials they require for their production process, they should be obliged to pay for the air and water degrade." See id.
233. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1343-46 (objecting to two features of technology-based regulation, that existing permits are free, and they are non-transferable). In calling for marketable permits to be auctioned by the government, Ackerman and Stewart note that their "market reform will be opposed by businesses who (despite their promarket rhetoric) will predictably resist the prospects of buying pollution rights after all these years of polluting for free. . . . See id. at 1344, n.27. "While it is possible to design efficient auction systems that ameliorate, or eliminate entirely, the financial burdens imposed upon polluters", Ackerman and Stewart would "oppose these schemes on principle." See id. They "believe that just as firms are obliged to pay for other raw materials they require for their production process, they should be obliged to pay for the air and water degrade." See id.
234. See M. JEFF HAMOND ET AL., TAX WASTE, NOT WORK 68 (1997) (holding that auctioning pollution permits and using the revenue to offset existing tax distortions would be preferable to other approaches).
235. See J. ANDREW HOERNER, ALTERNATIVE APPROACHES TO OFFSETTING THE COMPETITIVE BURDEN OF A CARBON/ENERGY TAX 28-29 (1997) (A grandfathered permit system would place U.S. competitiveness at greater hazard than an auctioned permit system or equivalent pollution tax because no new revenues would be generated to offset adverse economic impacts on workers, consumers and businesses) (on file with authors).
236. SCAQMD does impose small fees on emissions to help fund its regulatory program, but they are not set at high enough levels to change price signals to promote significant pollution reductions. SCAQMD has adopted a fee schedule for the issuance of air quality permits to stationary sources. RECLAIM facilities are required to file Annual Emissions Reports and pay annual fees based on their emission of air contaminants. The fees help cover costs to evaluate, plan, inspect, and monitor air quality efforts. See South Coast Air Quality Management District, Regulation III - Fees, Rule 301(o) (last modified July 1, 1998) 〈http://www.aqmd.gov/rules/html/tofc3.html〉; CAL. HEALTH & SAFETY CODE § 40510 (West 1998).
237. Industry's ten year "free ride" includes the two years that proposed industrial regulations were shelved pending development of RECLAIM, and the six to eight years after RECLAIM adoption that it will take for allocated emission credits to drop below actual emission levels. Assuming that proposals to open up the closed RECLAIM market to interchangeable credits prevail, the free ride for industrial stationary sources will continue. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 41-42.
238. In 1996, industry actively opposed expansion of RECLAIM to 1,000 more industrial facilities that emit VOCs because of concerns that significant industrial emissions reductions would be required, which would limit economic growth in the region. The South Coast Air Quality Management District abandoned its proposal for RECLAIM VOC trading, instead opting to expand open market trading of mobile and area source credits, which allow industry to avoid reducing its own emissions. See South Coast Air Quality Management District, AQMD News - New Trading System Eyed: Air Board Shelves Expansion of Smog Trading Market (last modified Feb. 23, 1999) 〈http://www.aqmd.gov/news1/Archives/vocr.html〉; Maria Cone, Anti-Smog Plan Appears Likely to Be Shelved, L.A. TIMES, Jan. 12, 1996, at A1.
239. In 1996, industry actively opposed expansion of RECLAIM to 1,000 more industrial facilities that emit VOCs because of concerns that significant industrial emissions reductions would be required, which would limit economic growth in the region. The South Coast Air Quality Management District abandoned its proposal for RECLAIM VOC trading, instead opting to expand open market trading of mobile and area source credits, which allow industry to avoid reducing its own emissions. See South Coast Air Quality Management District, AQMD News - New Trading System Eyed: Air Board Shelves Expansion of Smog Trading Market (last modified Feb. 23, 1999) 〈http://www.aqmd.gov/news1/Archives/vocr.html〉; Maria Cone, Anti-Smog Plan Appears Likely to Be Shelved, L.A. TIMES, Jan. 12, 1996, at A1.
240. See Michael Sandel, It's Immoral to Buy the Right to Pollute, N.Y. TIMES, Dec. 15, 1997, at A2.
241. FRED PARRY, How CAN ONE SELL THE AIR? CHIEF SEATTLE'S VISION 48 (1992) (inspired by Chief Seattle's speech in December 1854 to Isaac I. Stevens, the new Governor and Commissioner of Indian Affairs for the Washington Territories who was on a preliminary field trip to the various tribes he was planning to force onto reservations).
242. See generally Richard J. Lazarus, Fairness in Environmental Law, 27 ENVTL. L. 705, 711 (1997) (fairness should be the basis used in assessing proposed reforms affecting existing environmental law).
243. See Exec. Order No. 12898, supra note 83.
244. See GOTTLIEB, supra note 24, at 235 (by the early 1900's ethnicity has emerged as a significant though understated factor in how serious community and workplace environmental hazards were experienced).
245. At a seminal meeting of more than 600 environmental justice leaders, seventeen "Principles of Environmental Justice" were adopted at the First National People of Color Environmental Leadership Summit, held in Washington, D.C., in October 1991. See generally Karl Grossman, The People of Color Environmental Summit, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE & COMMUNITIES OF COLOR 272, 272-97(Robert D. Bullard ed., 1994).
246. See Exec. Order No. 12898, supra note 83; National Environmental Justice Advisory Council, Welcome to the National Environmental Justice Advisory Council! (last modified Nov. 18, 1998) 〈http://www.epa.gov/oeca/oej/nejac〉.
247. See generally Michael Fisher, Environmental Racism Claims Brought under Title VI of the Civil Rights Act, 25 ENVTL. L. 285 (1995) (Title VI of the Civil Rights Act of 1964 provides a useful basis for litigation over environmental racism).
248. See discussion supra Part II.B.1.
249. The National Environmental Justice Advisory Council was established as a federal advisory committee in September 1993 to advise the EPA Administrator on environmental justice. See National Environmental Justice Advisory Council, Welcome to the National Environmental Justice Advisory Council! (last modified Feb. 1, 1999) 〈http://es.epa.gov/oeca/ oej/nejac/mainpage.html〉.
250. See Letter from Haywood Turrentine, Chair, Natioanl Environmental Justice Advisory Council, to Carol Browner, Administrator, U.S. Environmental Protection Agency, Attachment (Mar. 11, 1998) (citing, for example, a resolution entitled Enforcement Resolution on [sic] Concerning Study of Disproportionate Impacts of Pollution Trading Programs, which was adopted by the National Environmental Justice Advisory Council (NEJAC) on Dec. 12, 1996) (on file with authors).
251. See Bansal & Kuhn, supra note 89, at 18. Communities for a Better Environment, working with NAACP Legal Defense Fund and the Center on Race, Poverty and the Environment, filed the administrative complaint. EPA's Title VI implementing regulations forbid it or its delegated agencies from taking actions that have "the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex." 40 C.F.R § 7.35(b) (1998) (emphasis added).
252. See Perciaseppe, supra note 82.
253. See id.
254. See Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 ECOLOGY L.Q. 1, 27 (1995) ("The environmental justice movement adheres to a social justice perspective of environmentalism, while EPA and many national environmental organizations adhere to a science and technology oriented perspective of environmentalism. A scientific framework of risk analysis . . . is ill suited to address social justice issues.").
255. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1350-51 (conceding that their proposed marketable permits system could allow the creation of relatively high concentrations of particular pollutants in small areas within the larger pollution control regions, i.e. "hot-spots"). While silent on the environmental justice implications of toxic hot-spots, Ackerman and Stewart contend that tolerating hot-spots is also a defect of best available technology regulations. See id. Nonetheless, the blindness of both systems to intraregional variation is a serious concern, according to Ackerman and Stewart, "deserving of the highest priority on the reform agenda." See id. at 1350-51, n.43.
256. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1350-51 (conceding that their proposed marketable permits system could allow the creation of relatively high concentrations of particular pollutants in small areas within the larger pollution control regions, i.e. "hot-spots"). While silent on the environmental justice implications of toxic hot-spots, Ackerman and Stewart contend that tolerating hot-spots is also a defect of best available technology regulations. See id. Nonetheless, the blindness of both systems to intraregional variation is a serious concern, according to Ackerman and Stewart, "deserving of the highest priority on the reform agenda." See id. at 1350-51, n.43.
257. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1350-51 (conceding that their proposed marketable permits system could allow the creation of relatively high concentrations of particular pollutants in small areas within the larger pollution control regions, i.e. "hot-spots"). While silent on the environmental justice implications of toxic hot-spots, Ackerman and Stewart contend that tolerating hot-spots is also a defect of best available technology regulations. See id. Nonetheless, the blindness of both systems to intraregional variation is a serious concern, according to Ackerman and Stewart, "deserving of the highest priority on the reform agenda." See id. at 1350-51, n.43.
258. See generally Ackerman & Stewart, Reforming Environmental Law (II), supra note 11; Dudek and Palmisano, supra note 18.
259. See Heinzerling, supra note 9, at 343.
260. See Barry Commoner, A Reporter at Large: The Environment, THE NEW YORKER, June 15, 1987, at 46, 46-52 (reporting major progress when environmental regulations have required prevention of pollution at its source, as opposed to control of pollution after its generation).
261. See Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standardsand "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267, 1270-71 (1985) (questioning whether other regulatory approaches would really perform better in practice that uniform standards).
262. See discussion infra Part II.B.2.-3.
263. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 42, 247.
264. x emissions from 1989 to 1996).
265. x reduction for all RECLAIM sources will be about eleven percent per year).
266. See supra text accompanying note 161.
267. See Lohmann Declaration, supra note 121, at 26; SCAQMD, Board Meeting June 12, 1998, supra note 126, at Attachment D.
268. See supra text accompanying note 153; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 242 (the overallocations in RECLAIM in the first few years were necessary to allow industry to adjust to and accept the concept of mass emission caps); Driesen, Cheap Fix?, supra note 8, at 64-66 (government officials eager to avoid accountability may treat emissions trading as an opportunity to avoid making specific decisions about where reductions will come from); Dudek & Palmisano, supra note 18, at 239-40 (paper trading, which refers to trading emission credits that never existed or that reflect reductions that would have happened anyway, has occurred but reforms can fix this abuse).
269. See supra text accompanying note 153; SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 242 (the overallocations in RECLAIM in the first few years were necessary to allow industry to adjust to and accept the concept of mass emission caps); Driesen, Cheap Fix?, supra note 8, at 64-66 (government officials eager to avoid accountability may treat emissions trading as an opportunity to avoid making specific decisions about where reductions will come from); Dudek & Palmisano, supra note 18, at 239-40 (paper trading, which refers to trading emission credits that never existed or that reflect reductions that would have happened anyway, has occurred but reforms can fix this abuse).
270. See, e.g., Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1346 (trading promises to reward innovative improvements in existing cleanup technologies); Driesen, Emissions Trading, supra note 6, at 334 (emissions trading discourages up front investment in innovation necessary to develop new technologies with some initial costs).
271. See, e.g., Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1346 (trading promises to reward innovative improvements in existing cleanup technologies); Driesen, Emissions Trading, supra note 6, at 334 (emissions trading discourages up front investment in innovation necessary to develop new technologies with some initial costs).
272. See Lester R. Brown & Jennifer Mitchell, Building a New Economy, in STATE OF THE WORLD 1998, at 168-87 (1998); BARRY COMMONER, MAKING PEACE WITH THE PLANET 79-102 (1990).
273. See Lester R. Brown & Jennifer Mitchell, Building a New Economy, in STATE OF THE WORLD 1998, at 168-87 (1998); BARRY COMMONER, MAKING PEACE WITH THE PLANET 79-102 (1990).
274. The United Nations Environment Program has defined cleaner production as: Cleaner production is the continuous application of an integrated preventive environmental strategy applied to processes, products, and services to increase ecoefficiency and reduce risks to humans and the environment. . . . Cleaner production requires changing attitudes, responsible environmental management and evaluating technology options. . . . The goal of cleaner production is to avoid generating pollution in the first place - which frequently cuts costs, reduces risks and identifies new opportunities. United Nations Environment Programme, Industry and Environment Office, A Definition For Cleaner Production (last modified Apr. 3, 1998) 〈http://www.unepie.org/cp/cp_ginf.html〉.
275. See, e.g., Ackerman & Stewart, Reforming Environmental law (I), supra note 10, at 1341 (pollution trading creates a powerful financial incentive for those who can clean up most cheaply to sell their permits to those whose treatment costs are highest).
276. See Dudek & Palmisano, supra note 18, at 234-36 (emissions trading creates incentives to use existing technologies, production, process, operations and maintenance changes in new ways that result in more emission control for less money).
277. See Robert N. Stavins, Harnessing The Marketplace: We Have to Do More with Less, EPA J., May-June 1992, at 22; Hockenstein et al., supra note 3, at 15.
278. See Driesen, Emissions Trading, supra note 6, at 304 ("[M]ore demanding traditional regulation often provides significant incentives to innovate.").
279. See Nicholas A. Ashford et al., Using Regulation to Change the Market for Innovation, 9 HARV. ENVTL. L. REV. 419, 420 (1985); Driesen, Emissions Trading, supra note 6, at 294, 298-99; see generally Commoner, supra note 181.
280. See Nicholas A. Ashford et al., Using Regulation to Change the Market for Innovation, 9 HARV. ENVTL. L. REV. 419, 420 (1985); Driesen, Emissions Trading, supra note 6, at 294, 298-99; see generally Commoner, supra note 181.
281. See generally Driesen, Cheap Fix?, supra note 8 (trading discourages capital investment in technology innovation).
282. See id. at 42-43 (industry operators, who might have innovated to escape expensive pollution control regulations, will tend to purchase emission credits instead).
283. See Ackerman & Stewart, Reforming Environmental Law (I), supra note 10, at 1341 (Pollution trading creates a powerful financial incentive for those who can clean up most cheaply to sell their permits to those whose treatment costs are highest).
284. See Driesen, Cheap Fix?, supra note 8 at 42-43.
285. See Selmi, supra note 55, at 10,703.
286. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 53.
287. See Lohmann Declaration, supra note 121, at 10.
288. See id. at 23; see generally SCAQMD, Board Meeting June 12, 1998, supra note 126.
289. See id. at 23; see generally SCAQMD, Board Meeting June 12, 1998, supra note 126.
290. See Maria Cone, AQMD Tightens Rules of Car Scrapping, Environment: Vehicles must be roadworthy. Panel adds 100 compounds to list of restricted toxic chemicals, L.A. TIMES, July 11, 1998, at B3.
291. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 44-45.
292. Public participation has proven very successful as a tactic to prevent and reduce pollution. For example, the Toxic Release Inventory data which is required by the Emergency Planning and Community Right to Know Act has proven very successful in mobilizing public opposition that has lead to pollution prevention and reduction. See generally Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY L.Q. 619 (1992); Gauna, supra note 177.
293. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 55.
294. See SCAQMD, Offset Programs, supra note 60, at Rule 1610; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2000-2015.
295. See SCAQMD, Offset Programs, supra note 60, at Rule 1610; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2000-2015.
296. Cf. Heinzerling, supra note 9, at 318 (noting that the history of the 1990 Clean Air Act Amendments challenges the view that "establishing a system of marketable permits will promote democratic values, such as deliberation, decentralization, and freedom from faction. . . . In reality, Congress paid little attention to [debating the overall pollution limits]. . . [and] the 1990 Amendments owes much of its content to the influence of special interest groups.")
297. Id. at 343.
298. Id.
299. See KUTTNER, supra note 132, at 6.
300. See Selmi, supra note 55, at 10,703-704; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2004(b).
301. See Selmi, supra note 55, at 10,704-705; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2012(c)(2)(A).
302. See Selmi, supra note 55, at 10,704-705; see also SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 75; Southern California Gas Company, Position Paper: Regional Clean Air Incentives Market (RECLAIM) 2 (1993) (on file with authors). In the car scrapping program, in contrast, it's impractical to monitor emission reductions because the program is based on projections of emissions avoided in the future. As discussed above, these projections have been grossly over inflated.
303. x sources from using continuous emissions monitoring. See SCAQMD, RECLAIM Rules, supra note 62, at Rule 2012. Instead, SCAQMD relies on emissions factors for these smaller sources. Such emission factors may be inaccurate according to U.S. EPA, because some emissions factors are derived from tests that may vary by an order of magnitude or more. Even when the major process variables are accounted for, emission factors developed may be the result of averaging source tests that differ by factors of five or more. See U.S. EPA , AP-42 , supra note 113, at 3.
304. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 76-77.
305. See id. at 77.
306. See id., at 84-85.
307. See Selmi, supra note 55, at 10,697.
308. According to the U.S. EPA, "there are hundreds of thousands of sources of VOC emissions including automobile emissions, gasoline vapors, chemical solvents, and consumer products like paint." See U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Regional Approaches to Improving Air Quality: Ground Level Ozone (last modified Aug. 27, 1997) 〈http://www.epa.gov/oar/oaqps/airtrans/groundoz.html〉.
309. See U.S. EPA, AP-42, supra note 113, at 2-3.
310. See Ken Geiser, Rediscovering Materials Policy, in RETHINKING THE MATERIALS WE USE: A NEW FOCUS FOR POLLUTION POLICY 13, 18-19 (Ken Geiser & Francis H. Irwin eds., 1993). In one state where chemical use data reporting is required by law, better materials tracking has resulted in pollution prevention and cost savings. See generally KEN GEISER, TRACKING POLLUTION PREVENTION PROGRESS IN MASSACHUSETTS: PART TWO (1996).
311. See Ken Geiser, Rediscovering Materials Policy, in RETHINKING THE MATERIALS WE USE: A NEW FOCUS FOR POLLUTION POLICY 13, 18-19 (Ken Geiser & Francis H. Irwin eds., 1993). In one state where chemical use data reporting is required by law, better materials tracking has resulted in pollution prevention and cost savings. See generally KEN GEISER, TRACKING POLLUTION PREVENTION PROGRESS IN MASSACHUSETTS: PART TWO (1996).
312. See SCAQMD, RECLAIM Rules, supra note 62, at Rule 2004(b); see also Selmi, supra note 55, at 10,702;.
313. See Selmi, supra note 55, at 10,704.
314. See id at 10,704; SCAQMD, RECLAIM Rules, supra note 62, at Rule 2004.
315. See discussion supra Part II (about emissions factors).
316. See SCAQMD, RECLAIM PROGRAM AUDIT, supra note 112, at 29.
317. Ses Driesen, Emissions Trading, supra note 6, at 303-04.
318. See SCAQMD, Air Quality Investment Program, supra note 74.
319. See discussion supra Part II.B.1-B.2.
320. See JONATHAN BAERT WIENER, DESIGNING GLOBAL CLIMATE POLICY: EFFICIENT MARKETS VERSUS POLITICAL MARKETS 5 (Center for the Study of American Business Policy Study No. 143, 1997).
321. As defined in the Emergency Planning and Community Right-To-Know Act. See 42 U.S.C. § 11001 (1998).
322. A model prepared by Regional Economic Modeling Inc. (REMI) has been used by California's South Coast Air Quality Management District for socio-economic impact assessment as part of the development of Air Quality Management Plans, and could be adapted for this purpose. See generally Johnson & Pekelney, supra note 112.
323. See 42 U.S.C. § 7502(c)(1) (1998).
324. See NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL, PUBLIC PARTICIPATION AND ACCOUNTABILITY SUBCOMMITTEE, THE MODEL PLAN FOR PUBLIC PARTICIPATION 1-9 (1996).
325. See Michael Belliveau, Smoke and Mirrors: Will Global Pollution Trading Save the Climate or Promote Injustice and Fraud? CORPORATE WATCH (October 1998) (last modified Mar. 1, 1999) 〈http://www.corpwatch.org/trac/feature/climate/pollution/belliveau. html〉; see generally Driesen, Cheap Fix?, supra note 8.
326. See Michael Belliveau, Smoke and Mirrors: Will Global Pollution Trading Save the Climate or Promote Injustice and Fraud? CORPORATE WATCH (October 1998) (last modified Mar. 1, 1999) 〈http://www.corpwatch.org/trac/feature/climate/pollution/belliveau. html〉; see generally Driesen, Cheap Fix?, supra note 8.
327. See generally CHRIS ROLFE, TURNING DOWN THE HEAT: EMISSIONS TRADING AND CANADIAN IMPLEMENTATION OF THE KYOTO PROTOCOL (1998).
328. th ed. 1994).
329. See Belliveau, supra note 239.
330. See id.; see generally Driesen, Cheap Fix?, supra note 8.
331. See Daphne Wysham, Profiting from Pollution, SAN JOSE MERCURY NEWS, Nov. 22, 1998, at 1P; See generally Driesen, Cheap Fix?, supra note 8; THE SUSTAINABLE ENERGY AND ECONOMY NETWORK (INSTITUTE FOR POLICY STUDIES, USA) AND THE INTERNATIONAL TRADE INFORMATION SERVICE (USA), THE WORLD BANK AND THE G-7: STILL CHANGING THE EARTH'S CLIMATE FOR BUSINESS (1998).
332. See Daphne Wysham, Profiting from Pollution, SAN JOSE MERCURY NEWS, Nov. 22, 1998, at 1P; See generally Driesen, Cheap Fix?, supra note 8; THE SUSTAINABLE ENERGY AND ECONOMY NETWORK (INSTITUTE FOR POLICY STUDIES, USA) AND THE INTERNATIONAL TRADE INFORMATION SERVICE (USA), THE WORLD BANK AND THE G-7: STILL CHANGING THE EARTH'S CLIMATE FOR BUSINESS (1998).
333. See Daphne Wysham, Profiting from Pollution, SAN JOSE MERCURY NEWS, Nov. 22, 1998, at 1P; See generally Driesen, Cheap Fix?, supra note 8; THE SUSTAINABLE ENERGY AND ECONOMY NETWORK (INSTITUTE FOR POLICY STUDIES, USA) AND THE INTERNATIONAL TRADE INFORMATION SERVICE (USA), THE WORLD BANK AND THE G-7: STILL CHANGING THE EARTH'S CLIMATE FOR BUSINESS (1998).
334. See Wysham, supra note 244, at 1P.
335. See id.
336. See id.
337. See Industries Push for Emissions Credits: Firms Want to Ensure Credit for Reductions of a Global Warming Treaty is Passed, SAN JOSE MERCURY NEWS, Jan. 3, 1999, at 6A.
338. See generally David Malin Roodman, THE NATURAL WEALTH OF NATIONS: HARNESSING THE MARKET FOR THE ENVIRONMENT 29-110 (1998); LESTER R. BROWN ET AL., SAVING THE PLANET: HOW TO SHAPE AND ENVIRONMENTALLY SUSTAINABLE GLOBAL ECONOMY 48-63 (1991).
339. See generally David Malin Roodman, THE NATURAL WEALTH OF NATIONS: HARNESSING THE MARKET FOR THE ENVIRONMENT 29-110 (1998); LESTER R. BROWN ET AL., SAVING THE PLANET: HOW TO SHAPE AND ENVIRONMENTALLY SUSTAINABLE GLOBAL ECONOMY 48-63 (1991).
340. See generally Frank Muller & J. Andrew Hoerner, Greening State Energy Taxes: Carbon Taxes for Revenue and the Environment, 12 PACE ENVTL. L. REV. 5 (1994); HAMOND, supra note 158.
341. See David Malin Roodman, Building a Sustainable Society, in STATE OF THE WORLD 1999, at 169, 171-74 (1999). See generally HAMOND ET AL., supra note 158.
342. See generally HOERNER, supra note 159; Roodman, supra note 251.
343. See discussion supra Part IV.A.