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Comment 124 for Public Input on Cap-and-Trade Auction Proceeds Second Investment Plan (investplan2-ws) - 1st Workshop.
First Name: Gordon
Last Name: Piper
Email Address: rgpiper33@gmail.com
Affiliation: Retired Civil Rights Agency admin.
Subject: Comments to ARB Draft Cap-and-Trade-Auction Proceeds Second Investment Plan: Fiscal Year
Comment:
The Draft Second Investment Plan, like the First Investment Plan, is in direct conflict with State and Federal Constitutional requirements and Civil Rights and Environmental laws and regulations. It needs to be amended to bring the plan, policies, regulations and programs back into compliance and avoid perpetuating systemic and pervasive discrimination. By providing benefits and services to only 25% of the California census tracts largely to the exclusion of the other 75%, are in direct conflict with: 1. The Equal Protection clause in the California Constitution prohibiting discrimination by government agencies and guaranteeing that no person is discriminated against by government agencies and guaranteeing that no person is discriminated against by State government agencies; 2. The California Unruh Civil Rights Act prohibition against arbitrary discrimination in the provision of services, privileges and advantages by a public agency based on considerations of race, color, national origin, ancestry, and geographic location and that mandates each person be entitled to equal services, privileges, and advantages in the State of California; 3. The Equal Protection clause in the 14th Amendment to the United States Constitution which prohibits discrimination by State and local government agencies and provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws” ; 4. Government Code Section 11135 (a) which states that no person is denied the right to participate in or the benefits of a program receiving State assistance; and also in the implementing Regulations in the California Code of Regulations Title 22 Sections 98211 (c) and 98100; 5. California Constitution prohibitions against affirmative action and preferential-treatment-based considerations of race, color, national origin or ancestry in public contracting and public employment; 6. California Resources Code Section 71110 in the California Resources Code which mandates The California Environmental Protection Agency, in designing its mission for programs, policies, and standards shall do all of the following: (a) Conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensure the fair treatment of all races, cultures, and income levels, including minority populations and low income populations of the state”, but which has not been effectively complied with by either CAL EPA or the ARB in its current Cap-And-Trade Auction Proceeds Interim Guidance to Agencies that Administer Greenhouse Gas Reduction Funds Monies, the September 4, 2015 ARB proposed Cap-and-Trade Proceeds Funding Guideline for Agencies that Administering California Climate Investments and the Draft Second Investment Plan. 7. The California Fair Employment and Housing Act and implementing regulations that are supposed to ensure nondiscrimination in employment practices related to hiring, terminating or training; 8. In 1996, the voters approved Proposition 209. Section 31 of Article I in the California Constitution prohibits discrimination against any individual or group on the basis of race, color, ethnicity or national origin in the operation of public employment or contracting. The preferential treatment in the First Investment Plan and the proposed continuation of preferential treatment in the Draft ARB Second Investment Plan, unless revised, could continue undercut this ban on affirmative action and preferential treatment in public contracts and public employment. 9. Title VI of the Civil Rights Act of 1964 and implementing Title VI regulations of Federal agencies in relation to the Effectuation of Title VI compliance that apply to State agencies that accept Federal funds and combine those with State GGRF funds for programs that do not comply with the various equal treatment and non-discrimination requirements outlined in Title VI and the implanting Regulations for ensuring equal treatment and non-discrimination and that require that “no person is denied the right to participate in or the benefits of a program receiving Federal assistance; and 10. Title VII of the Civil Rights Act of 1964 with respect to the requirements for non-discrimination in employment practices related to hiring, terminating or training. There is substantial evidence that the proposed Second Investment Plan like the First Investment Plan is really very much like “a Pandora’s box” that: 1. Perpetuates “environmental racism” and racial discrimination in violation of State and Federal civil rights laws and regulations; 2. Violates constitutional “equal protection” requirements in the California Constitution and U.S. Constitution that are supposed to bar discrimination by public agencies in their services, benefits and in providing access to benefits to all persons; 3. Is inconsistent with the State of California’s codified definition of “environmental justice” found in Government Code Section 65040.12 that states “environmental justice means the fair treatment of people of all races, cultures, and incomes with respect to the development adoption, implementation, and enforcement of environmental laws, regulations, and policies”; 4. Some of the allocations made in the First Investment Plan and discussed in the Draft Second Investment Plan reference specific Legislation passed in 2012 that provided a framework for how the Cap-and-Trade auction proceeds would be appropriated and expended. The ARB staff focused only on AB 1532, SB 535 and SB 1018 as the driving force behind their interpretation of how the allocations had to be appropriated and expended. But there are other laws, such as the Civil Rights laws and codified definition of Environmental Justice that require state actions to be fair to all races, incomes and geographic locations to benefit all California residents. The ARB and other state agencies must ensure that their policies and actions don’t ignore the equal protection mandates in the state and federal laws and are fair to all races, cultures and incomes despite recently approved environmental laws that may have provisions that conflict with requirements of other State Civil Rights Laws or Constitutional requirements. Rather, the Second Year Investment Plan should stop these violations and correct the approach by strengthening the balance of investments to benefit all races, cultures, incomes and all geographic locations; 5. Covers up and fails to reference and address the series of discriminatory implementing guidelines, procedural manuals, and requests for proposals developed by either the Air Resources Board and different State agencies administering GGRF fund investments and programs, including the ARB’s “Cap-and-Trade Auction Proceeds Interim Guidance to Agencies Administering Greenhouse Gas Reduction Fund Monies” issued November 3, 2014 and the draft ARB “Cap and Trade Auction Proceeds Guidance to Agencies Administering California Climate Investments” ; 6. By targeting funding to only communities of color which comprise 25% of California’s census tracts and only half of its counties, and redlining individuals and organizations that might qualify for these funds and grants who live in the other 75% of the census tracts, the State of California’s discriminatory use of federal funds for the Low Income Weatherization Program, the Green Trees for the Golden State Tree Planting Grant Program, High Speed Rail Program and many more similarly funded Greenhouse Gas Reduction Fund (GGRF) programs violate Title VI, in direct conflict with these agencies’ written certifications to Federal agencies that they will comply with Title VI when they accept Federal funds; 7. Undercuts the AB 32 goal of maximizing the economic benefits to all California, the Green House Reduction benefits to all California, and health benefits to all geographic locations in California and the environmental benefits to all geographic locations in California; 8. The Investment Plan forces state agencies and grantees to engage in preferential treatment of so-called disadvantaged communities targeting most benefits to minority communities of color which conflicts with the requirements of the Unruh Civil Rights Act, the equal protection clauses in the California and US Constitutions, and the prohibition against preferential treatment/affirmative action related to race in section 31 of the California Constitution; 9. The ARB pilot program of providing technical assistance exclusively to disadvantaged communities, which primarily benefited minority communities of color and highlighted in the draft ARB Second Investment Plan, appears to undercut the provisions of the Unruh Civil Rights Act and Title VI. CAL FIRE provided this type of technical assistance program using Title VI funds, but did not offer technical assistance to potential applicants who were not in disadvantaged communities; 10. The language concerning co-benefits promoting jobs and training in disadvantaged communities in both the Second Year Investment Plan and ARB’s Draft Guidelines needs to be revised. Letting it stand encourages disparate treatment and disparate impact on hiring and training that favors primarily communities of color and denies opportunities to millions of non-Hispanic Caucasians and whites who are more likely excluded from these programs and co-benefits. To maximize the economic benefits to all California through GGRF fund investments, the Second Year Investment Plan needs to go beyond the 25% census tracts and ensure that these benefits and services are available to all geographic locations. Not doing so can create significant legal liability for the ARB and the other governmental agencies, nonprofit subcontractors and grantees that rely on ARB’s procedures and assume they are consistent with State and Federal law; 11. Ignores the language in AB 32 (38592) (b) that states: Nothing in this division shall relieve any person, entity, or public agency of compliance with other applicable federal, state, or local laws or regulations, including state air and water quality requirements, and other requirements for protecting public health or the environment. Ignores AB 32 (38596) that states: The provision of this division are severable. If any provision of this division or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. No where does the Second-Year Investment Plan or the guidance to state agencies administering these GGRF funds mention the mandate to comply with State and Federal nondiscrimination laws; 12. The First Investment Plan and the ARB’s Interim Cap-and-Trade Guidance and Draft Final Guidance used faulty CalEnvrioScreen 2.0 methodology developed by the California Environmental Protection Agency that disparately impacts a huge class of millions of non-Hispanic-Caucasians or whites, and provides a disproportionately large share of GGRF benefits would go to minority communities of color in 25% of California census tracts. The US Justice Department’s Title VI manual indicates that the evidence of disparate treatment and disparate impact can be used to establish a violation of Title VI. California courts will also look at disparate treatment and disparate impact as evidence of intent to discriminate. The ARB needs to change the Draft Second Investment Plan and the use of CalEnviroScreen 2.0 to avoid perpetuating these violations; 13. Major funded GGRF programs such as High Speed Rail, the Low Income Weatherization Program and Urban and Community Forestry Grant Programs received close to 100% of the funding to disadvantaged communities that involved improper use of State and Federal funds in violation of the requirements of California’s Unruh Civil Rights Act, Title VI of the Civil Rights Act of 1964 and the Title VI certifications of State agencies that require they comply with Title VI and the detailed requirements of the Title VI Regulations of Federal agencies. The percentages for targets in many of these programs are significantly above the 25% standard that was originally established for benefitting disadvantaged communities or the 10% of GGRF funds going to projects located within disadvantaged communities. Unless changes are made, the ARB’s Draft Second Year Investment Plan continues these program targets and recommends many of the same investments for GGRF funds which will perpetuate these violations and appear to grant arbitrary privileges or advantages in violation of these laws; 14. The Draft Second Year Investment Plan does not delineate the percentages, but based on the charts that attached to the plan, the percentages will continue to exceed the 25% standard—in many cases 100% of the funding going to only disadvantaged communities, despite these conflicts with state and federal non discrimination laws; 15. There is a continuing intent to perpetuate this systemic and pervasive discrimination, despite my providing significant evidence of discrimination to staff in California Environmental Protection Agency, ARB, the Department of Justice, Department of Fair Employment and Housing, the California Governor, the Governor’s Office of Planning and Research, the Department of Finance that developed First Investment Plan, and individual agencies including CAL FIRE and California Department of Community Services and Development. No changes have been made to date, and the Draft Second Year Investment Plan continues to overlook these violations; 16. A staff member in the Department of Finance revealed in early 2015 that some programs selected for GGRF investments in FY2014-2015 (such as the High Speed Rail Program) had little or nothing to do with Greenhouse Gas Reduction goals. To achieve the set aside standards and balance the large amount of funds going to non-GGRF goals, the Finance Department raised the allocation for investment for disadvantaged communities for the $17 million in GGRF funds in urban forestry programs at CAL FIRE to 100%. This is a continuing and growing problem, as the allocations for the High Speed Rail Program have doubled this year, putting further pressure to increase the percentage of funds going to disadvantaged communities in the remaining GGRF-funded programs. This “tail wagging the dog” in terms of funding percentages that were reflected in the First and now the Draft Second Investment Plan is driving some violations of the requirements of State and Federal laws, regulations and Constitutional prohibitions against affirmative action and preferential treatment. It appears political expediency is taking precedence over Constitutional law and requirements of State and Federal Civil Rights law and regulations. The ARB should take a clear stand correcting the past mistakes and ensuring that the use of GGRF funds is managed in a fair and equitable manner, without violating State and Federal prohibitions against discrimination. The Draft Second Year Investment Plan should: 1. Recommend that the Legislature amend the SB 535 in terms of the framework that is putting such a heavy emphasis on maximizing the benefits, to make these programs fair to all races, cultures and incomes, and in all geographic locations, or work with State Department of Justice to address provisions in SB 535 that appear to be unconstitutional and in conflict with requirements of other State and Federal laws; 2. Change the percentages of funding designated for disadvantaged communities and open up the GGRF programs in FY 2016-17- and FY 2018-19 to competitive applications for projects in any of the 8000 California census tracts; 3. Set aside $25 million a year or 75% of the amount of funding allocated in FY2015-16 and FY 2016-17 for the State Urban and Community Forestry Program for competitive, non-discriminatory tree planting and tree maintenance grant programs, to be administered by California ReLeaf and the California Urban Forest Council for projects in California; 4. Eliminate or modify CalEnviroScreen2.0 so that there is no longer disparate treatment and disparate impact to counties and census tracts not considered disadvantaged communities under current CalEnvrioScreen2.0 criteria; 5. So that the current ARB Interim Guidelines for Agencies Administering Greenhouse Gas Reduction Funds comply with State and Federal Civil Rights laws, suspend the use of discriminatory guidelines and replace them with new guidelines that allocate investments in a non discriminatory manner and are fair to all races, cultures and incomes; 6. Require extensive training of staff responsible for developing and implementing state programs on the requirements of Title VI and Title VII of the Civil Rights Act of 1964, the Unruh Civil Rights Act, Government Code Section 11135 (a) and Section 31 of Article I in the State Constitution barring preferential treatment as it relates to drafting and implementing policies and regulations. In particular, CAL FIRE executive, legal and grant staff and staff for the urban and community forestry program, California Department of Finance staff, California Department of Community Services and Development, California Air Resources Board Staff and California Environmental Protection Agency staff; 7. Provide annual training and clear, easy to understand and up-to-date educational material on what certification of compliance with Title VI and the Title VI regulations of application Federal agencies for state agencies, non-State agencies and nonprofits that receive funds and grants for technical assistance on behalf of GGRF-funded programs that are combined with Federal funds.; 8. Conduct regular monitoring and compliance review of all certifications, and of all proposed Cap-and-Trade Auction Proceeds Investment Plans, proposed grant guidelines and requests for proposals to ensure that they comply with non-discrimination laws at the State and Federal level. I have spent more than a year since October 2014 conducting research on the initial GGRF funded programs and the Cap-and-Trade Auction Proceeds First Investment Plan and Draft Second Plan. I would be happy to share details of my research to assist the ARB in correcting these serious and rampant violations. I may be reached at rgpiper33@gmail.com.
Attachment: www.arb.ca.gov/lists/com-attach/137-investplan2-ws-Vm5Uf1xvWTkBKldm.docx
Original File Name: 8-23-15 Comments To California Air Resources Board re GGRF Guidelines (1).docx
Date and Time Comment Was Submitted: 2015-12-13 17:25:57
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