Comment Log Display

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.