Environmental groups that claim California's cap-and-trade system could increase air pollution in spots are taking their arguments to U.S. EPA.

The Center on Race, Poverty and the Environment filed a complaint last week under Title VI of the Civil Rights Act, which prohibits racial discrimination by recipients of federal funding.

The group has already achieved one court victory on cap and trade. Last year, San Francisco Superior Court Judge Ernest Goldsmith ordered the state Air Resources Board to redo its analysis that underpinned the selection of cap and trade over more direct regulations of climate-changing gases, an obstacle that coincided with the agency's decision to delay implementation by a year (ClimateWire, June 30, 2011).

The new complaint makes similar arguments to those in the lawsuit, which held that people of color are disproportionately affected by pollution from California's large greenhouse gas emitters. While nearly half of all Californians live within 6 miles of an emissions source subject to the state's cap-and-trade program, people of color make up 62 percent of that population, compared to 46 percent outside the 6-mile zone, the complaint says. Cap and trade allows companies to trade permits without necessarily reducing greenhouse gases at any one facility, which deprives nearby residents of reductions in other air pollutants that would occur, it claims.

CRPE's lawyer, Brent Newell, said that Title VI complaints have become a more viable option under President Obama and EPA Administrator Lisa Jackson, whom he credited with prioritizing environmental justice concerns. The agency is supposed to decide whether to investigate complaints within 20 days of their filing, but of about 250 complaints filed with EPA since 1993, the agency has met its schedule 6 percent of the time, often taking over a year, according to a third-party report last year.

Newell's optimism is based partly on a 2011 EPA decision in a case brought by CRPE against the California Department of Pesticide Regulation. The complaint cites the case, which dealt with methyl bromide being disproportionately applied near schools attended by Latino children (E&ENews PM, Aug. 25, 2011).

"The fact they made this finding and analyzed and set out in a decision how EPA determines whether there's a violation of Title VI, it's incredibly important," Newell said. If EPA decides to take the case, it has 180 days to issue a preliminary finding, after which it would decide on a remedy for any harm found.

But outside legal experts said it would still be an uphill battle for the plaintiffs. "I think the agency's trying to do something here; it's just that these cases are genuinely hard," said Eileen Gauna, an environmental law professor at the University of New Mexico. EPA did not respond to a request for comment.

The group's original lawsuit against the state's selection of cap and trade is still on appeal. Newell made oral arguments last week in California's 1st District Court of Appeal; there is no timeline for a decision.

California Air Resources Board spokesman Dave Clegern said that local air districts already regulate conventional air pollutants and that the state's overarching climate law, A.B. 32, specifies that those pollutants should not increase as a result of greenhouse gas reduction measures. "The thing about greenhouse gas emissions is we need an overall reduction, and everyone will feel the benefits from that," he said.