Civil Rights Suit Attacks Trade in Pollution Credits

In an unprecedented complaint to be filed today, environmentalists are charging that a major air pollution strategy pioneered in the Los Angeles region and touted nationally violates the civil rights of people living in low-income, minority communities.

The legal challenge calls into question pollution trading--a nationwide initiative spawned in Southern California that is rapidly becoming a cornerstone in the quest to clean up the air. For the Clinton administration, it is a watershed issue, because two of the highest-priority environmental programs championed by the administration--environmental justice and pollution trading--could be on a collision course.

The California group Communities for a Better Environment today is filing a federal civil rights complaint against the South Coast Air Quality Management District and California Air Resources Board. Simultaneously, the environmental group is suing five large oil companies--Chevron, Tosco, Unocal, Ultramar and GATX--in federal court because they have not cleaned up emissions at refinery operations in San Pedro and El Segundo.

Under the AQMD’s “smog markets,” Los Angeles-area manufacturers can buy and scrap old, high-polluting cars driven by motorists, and in return collect credits without having to clean up emissions from their own operations. In recent years, the AQMD and the Clinton administration have favored pollution trading to give industries choices in how they clean up air pollutants, so they can cut their costs and expand their businesses.

The environmental group contends that “hot spots” of toxic compounds are created in the process, threatening the health of people in industrial areas such as San Pedro.

“It’s a defining issue for the president’s administration,” said Carlos Porras, Southern California director of Communities for a Better Environment. “This has national significance and we’re very interested to see where [the Clinton administration] draws the line.”

The complaint--which asks the U.S. Environmental Protection Agency to overturn the program and withdraw all funds to the AQMD--is the first in the nation charging that pollution trading violates people’s civil rights. Joined by the National Assn. for the Advancement of Colored People, the environmental group is using the same Title VI provision of the Civil Rights Act that activists used in the 1960s to desegregate schools and buses.

Top-ranking EPA officials are taking a hard look at the effects of the smog-trading programs on environmental justice--the concept of how minority communities and the poor are disproportionately exposed to toxic chemicals because they often live near factories and other polluters.

“We are taking their concerns very seriously,” said David Howekamp, the EPA’s regional director of air programs. “They are raising valid concerns, but we have come to no conclusion yet. This is a precedential issue for the agency as a whole.”

The groups allege that San Pedro and El Segundo residents are exposed to toxic, carcinogenic fumes when gasoline is loaded onto vessels at four marine terminals operated by Chevron, Ultramar, GATX and Tosco, which took over most Unocal operations in March.

Most California oil refineries, including Mobil in Torrance and Arco in Carson, have installed multimillion-dollar vapor-control equipment that eliminates 95% of the hydrocarbon fumes.

But the three terminals at Los Angeles Harbor and one off El Segundo have not installed the vapor controls. Instead, under a 1992 rule, the AQMD allows them to buy and scrap old cars, at a cost of about $600 a piece, that spew the same volume of pollutants as the terminals.

The Chevron, Unocal, Ultramar and GATX terminals released about 590 tons of hydrocarbons into the air over the past three years, including benzene, a compound linked to leukemia, according to AQMD data. In exchange, they scrapped more than 7,400 old cars.

Southern California oil companies advocate pollution credits because it gives them flexibility in how they run their operations yet still help reduce smog. They say the programs benefit all Southern Californians, because most smog and benzene comes from old vehicles, posing a health risk to 14 million people that eclipses the risk at the refinery terminals in San Pedro and El Segundo.

“We still believe that the emission credits program is of great value, it makes good sense,” said Barry Lane, a spokesman for Unocal, which has a subsidiary, Eco-Scrap, that junks cars for businesses that want to collect pollution credits.

Jeff Callender, a spokesman for Tosco, called the charges “totally false and misleading,” especially because his company just took over the terminal from Unocal in April and has not scrapped any cars or sought credits.

Oil companies declined to comment Tuesday on the specific allegations because they have not seen the lawsuits. But one attorney who represents the oil industry said the civil rights complaint has no legal standing because the effects on the communities are minor and unintended.

“It’s a creative [legal] strategy someone came up with because it follows the trend of political correctness. It’s all smoke and no fire,” said the attorney, who spoke without his clients’ official approval and asked to remain unidentified.

James Lents, the AQMD’s outgoing executive officer, said he believes that the agency is not violating civil rights because toxic hot spots around industries are reduced under a separate rule, which prohibits fumes that pose a risk exceeding 100 cases of cancer among every million people exposed. However, that standard is less stringent than environmentalists and some health officials have wanted. AQMD board members, skeptical of the cancer danger posed by the fumes, set the scaled-back standard in 1994.

Lents said that if a civil rights conflict does exist, it could be fixed “without doing away with a good trading program.”

“There is a concern about environmental justice and we certainly care about the issue,” he said. “But I don’t think the problem is the trading programs themselves; the problem is whether the toxics program is tough enough.”

Communities for a Better Environment attorney Richard Drury said the trading scheme allows workers and residents around San Pedro to be exposed to the equivalent of “thousands of cars idling at each marine terminal.”

The oil terminals, Porras added, “have a significant impact on the health of those communities, and those communities are, without question, communities of color. Poor urban communities have very little political voice and those are the voices we want to bring to the table.”

Some nearby residents have complained about asthma, headaches and dizzy spells, but no one has proved that the oil fumes are responsible. Community members are expected to confront Lents and other AQMD officials at a meeting in Carson tonight.

The issue is critical to California anti-smog efforts, because the AQMD expanded its trading strategies to thousands of businesses under new rules adopted in April and May. Michigan also has a program and Chicago and some states in the Northeast are developing similar ones.

“This is an issue that has to be resolved in short order,” the EPA’s Howekamp said. “These lawsuits will put pressure on everyone to resolve this question, since programs like these are spreading throughout the nation.”