Californian was frontrunner for Biden’s environmental chief. Why that may be in jeopardy

Mary Nichols has been making environmental policy for decades, and is responsible for running a groundbreaking California program designed to reduce greenhouse gas emissions.

That program could be her undoing.

Nichols, who is retiring this month as chairwoman of the California Air Resources Board, has been the front-runner to lead the U.S. Environmental Protection Agency in the coming administration of President-elect Joe Biden. But her potential nomination ran into opposition earlier this month from 70 advocates for environmental justice, the movement that focuses on low-income and minority communities disproportionately affected by pollution.

Nichols was already facing some opposition from Republicans. The criticism from environmental justice advocates on the left complicated her chances further. While some environmental justice groups have come to Nichols’ defense in recent days, Biden’s transition team has begun pivoting toward other candidates.

“Mary was always going to require some effort to confirm given her long record on climate policy, but then when some of the environmental justice advocates came out so strongly against her, I think that raised concerns with the transition,” said Rich Gold, a former senior EPA adviser in the Clinton administration.

These advocates, including groups like the California Environmental Justice Alliance and Greenpeace USA, have been urging Biden not to choose Nichols. Their chief argument: a carbon-fighting program called cap-and-trade, inaugurated by the California Air Resources Board under Nichols’ leadership, gives polluters too much leeway to continue fouling the air in poor communities.

A source with the Biden transition said late Monday that Nichols remains “a serious contender” for the EPA post.

The New York Times was the first to report Monday that Biden’s transition team is searching for new candidates because of the environmental justice issue. The newspaper said possible alternative nominees include Michael Regan, a North Carolina environmental official, and New York University law professor Richard Revesz.

Richard Grow, a former EPA staffer in the federal agency’s West Coast office, said the Biden transition team includes people who are sympathetic to the environmental justice cause.

“They understand environmental justice,” Grow said. As for the letter from the environmental coalition, “I think it got some traction,” he said.

The letter says Nichols “has staunchly pursued and defended carbon trading, while minimizing state policies that required direct emission reductions and other climate policy implementing programs that benefit environmental justice communities.”

Nichols declined to comment through a spokesman.

Jane Williams, one of the signers of the letter and head of California Communities Against Toxics, said Nichols’ potential nomination “was a slap in the face to the California environmental justice movement, which has fought with her during her entire tenure at the California Air Resources Board.”

She said Biden and Vice President-elect Kamala Harris owe their electoral victory in large part to support from minority voters and have to be sensitive to environmental justice issues.

Nichols led California on climate change

Nichols vaulted onto the shortlist of EPA candidates because of her work on climate change, in particular her fight against the Trump administration’s efforts to roll back rules that restrict greenhouse gas emissions from motor vehicles. Trump also moved to revoke California’s exclusive right under federal law to impose air-pollution limits that are stricter than the federal government’s.

Nichols has led the air board since 2007, the year after then-Gov. Arnold Schwarzenegger signed legislation requiring California to ratchet down carbon pollution. Under Nichols, the cap-and-trade program became one of the main tools in California’s efforts to combat global warming.

The program, which launched in late 2012, was considered a pioneering approach to climate change. It puts a ceiling on the volume of carbon that can be emitted annually by hundreds of industrial companies and others in California; the ceiling drops every year.

But it’s a market-based approach that allows companies a considerable amount of flexibility; it was designed to put a price on carbon emissions without breaking the backs of businesses.

Polluters who are in danger of exceeding their cap can buy pollution credits on the open market or through quarterly auctions that are run by the Air Resources Board. Companies have spent billions of dollars on credits; the going rate is just under $17 a ton.

They can also meet a portion of their commitment by purchasing “offsets” — investments in projects that help restore forests and the like.

Paying for the privilege to pollute?

Thanks to cap-and-trade and other programs, greenhouse gas emissions in California have fallen — from 451 million tons in 2012 to 425.3 million in 2018, the most recent data available.

But the program has left environmental justice advocates fuming.

They argue that cap-and-trade effectively allows polluters to keep polluting, so long as they’re willing to spend money for the privilege. They say the effect of that pollution falls disproportionately on low-income communities, which are often home to belching smokestacks.

Nichols “did nothing to help people breathing the air in neighborhoods that are polluted,” Williams said. These policies have had the effect of “abandoning communities that are at the fence line of a refinery or a power plant.”

Complaints from the left about cap-and-trade mushroomed three years ago, when then-Gov. Jerry Brown proposed extending the program for another 10 years, to 2030. The bill, which needed a two-thirds super-majority, barely got through the Legislature, in part because of push-back from environmental justice lobbyists.

Brown also signed a companion bill that increases penalties for localized pollution.

Reacting to media reports that Nichols was in jeopardy of not getting the EPA post, a group of California environmental justice groups proposed three alternative candidates Monday, led by Kevin de Leon, the former California Senate president pro tem, who authored legislation advancing climate goals. The other candidates: Heather McTeer Toney and Mathy Stanislaus, both former EPA officials during Obama’s administration.

This story was originally published December 15, 2020 at 5:00 AM with the headline "Californian was frontrunner for Biden’s environmental chief. Why that may be in jeopardy."