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Just Transitions?


Sarah Krakoff (@sarah_krakoff) is Raphael J. Moses Professor of Law, University of Colorado Law School.

“Either Way the Outlook is Dire, Especially for the Poor.” So concludes a journalist after reviewing a draft report by the International Panel on Climate Change (IPCC) on the environmental justice and human rights consequences of climate change. The 800-plus page report, which is not yet publicly available, details the effects of a 1.5 degree Celsius increase on food systems, water, shelter, infrastructure, and health. Even if countries meet their pledges under the Paris Accords (from which the U.S. withdrew under President Trump) 1.5 degrees of warming by 2030 is locked in. If countries fail to meet their commitments, the world will be well on its way to 2 degrees of warming or more.

“The risks to human societies … are higher with 1.5 degrees Celsius of global warming compared to today, and higher still with 2 degrees Celsius global warming compared with 1.5 degrees … These risks are greatest for people facing multiple forms of poverty, inequality and marginalization. —Draft IPCC Report, 2018

On one hand, there is nothing new about this. Environmental harms, and harms of all sorts, have disproportionate impacts on people, communities, and regions with preexisting vulnerabilities. Earthquakes, fires, floods, and drought do not themselves discriminate. But structural wealth insulates people from the ill effects of natural disasters and helps them to recover more quickly. As Mike Davis and John Mcphee have documented, albeit in distinct tones, wealth also constructs the very path of nature’s disasters, steering them away from privilege to the extent possible. Malibu’s ritzy canyon dwellers benefitted from fire suppression, and Pasadena’s craftsmen-style homes from the lassoing of the Los Angeles River, while L.A.’s population as a whole lost public spaces and healthy riparian areas. Climate change has made the unnatural inequalities of natural disasters more visible and acute, but the landscape of injustice preceded sky-rocketing greenhouse gas emissions. Laws, including environmental laws, sometimes shaped that unjust landscape, and at others did little to counter the unequal distribution of environmental and economic benefits.

The nasty rub, however, is that the solutions to climate change are also likely to fall hardest on the poor. The draft report acknowledges this too, and urges that principles of justice and fairness be integrated into the necessary transition to a zero-carbon economy. Otherwise, human communities most vulnerable to the dire impacts of climate change will also be left behind by efforts to redress it. This is not an argument for continuing to emit greenhouse gases. Poor communities are worse off with business-as-usual inequality, which would continue to erode the natural systems on which we all rely. Rather it is a dark reminder that no matter what we do, we entrench inequality unless we deliberately aim to do otherwise.

Two places in the American west—Navajo and Hopi lands in Arizona and the Crow Tribe’s territory in Montana—serve as object lessons in the climate crisis’ double-edged inequality. They also reveal the ways that U.S. laws and policies construct inequality’s context, including its racialized features. The Crow Tribe, Navajo Nation, and Hopi Tribe—indigenous nations with federally recognized sovereign status—have economies that are largely dependent on coal revenue. At Crow, a single coal mine accounts for fifty percent of the Tribe’s non-federal income. The Absaloka Mine, which opened in in 1974, also employs 170 people. As the market for coal dried up, the Tribe had to lay off 1,000 of its 1,300 employees. Crow has background poverty and unemployment rates of 31.5% and 24% respectively, so the community feels these losses acutely.

The Navajo Nation and Hopi Tribe are also facing job and revenue losses due to the decline of coal. The Navajo Generating Station (NGS) is scheduled to close in 2019. NGS is a 2,250 mega-watt power plant that supplies electricity to pump water from Lake Mead to Phoenix through the Central Arizona Project, a 336-mile long canal across the desert. NGS’s owners, including the Salt River Project, the Bureau of Reclamation and other southwest utilities, announced last year that it was no longer economical to run the plant. Coal prices had risen while natural gas became more abundant and cheaper; market principles therefore dictated the sale of the coal-fired generating station. NGS is located on the Navajo Nation, and employs approximately 400 people, about 80% of whom are tribal members. NGS gets all of its coal from the Kayenta Mine, located on Black Mesa. The Navajo Nation and Hopi Tribe receive royalties and taxes from Peabody Energy totaling roughly $51 million annually. For Hopi, the coal revenue constitutes nearly half of the tribal government’s annual budget, and for Navajo somewhere in the range of six percent. For Navajo and Hopi, there are also ripple effects from the loss of high paying jobs at NGS and the mines. With background unemployment and poverty rates similar to those at Crow, tribal members making upwards of $100,000 per year are mainstays for their families and communities. Like all major industrial facilities, NGS and the mine also provide secondary economic benefits to surrounding stores and service businesses.

Initially, Navajo Nation President Russell Begaye expressed hope that the Trump Administration would extend the life of NGS and the Kayenta Mine. President Trump and Interior Secretary Ryan Zinke have promised to bring back coal and usher in an era of America-first “energy dominance.” But the massive coal subsidies that would be required are proving unpalatable to federal regulators. The Federal Energy Regulatory Commission (FERC) recently rejected a plan that would have paid utilities extra to stockpile coal, concluding that propping up the domestic coal industry would do nothing to stabilize, let alone improve, the resilience of the energy grid. An October, 2017 deadline for finding a purchaser for NGS has come and gone, with nothing other than rumors about potential buyers for the plant. Like so many earlier promises to Indian country, it seems that the one to keep coal alive was hollow.

As many Navajo and Hopi people see it, the deaths of NGS and the Kayenta Mine are long overdue, even though they know their communities will suffer economically. The mine and the generating station have wreaked decades of environmental havoc and social disruption on their people. The discovery of vast coal resources under Black Mesa resulted in a decades-long land dispute between the Navajo Nation and the Hopi Tribe, sparked by the mining company’s desire for certainty about which government to pursue for lease agreements. The dispute stemmed from the federal government’s careless language in executive orders demarcating the Tribes’ territories. Thousands of Navajo tribal members lived on Black Mesa in the disputed area, and were forcibly relocated when the lands were deemed to fall on the Hopi side of the line. Many thousands more were affected by a forty-year freeze on all development covering 1.5 million acres of land. The freeze, imposed by Assistant Secretary of the Interior Robert Bennett, prevented Navajo residents throughout the western side of the reservation from getting electricity, phone lines, or even fixing their roofs or corrals until the land claims dispute was resolved. Together, the land dispute and the conversion of the Navajo Nation and Hopi Tribe to mono-source economies resulted in the deliberate underdevelopment of vast portions of the Navajo and Hopi reservations. Perhaps most ironically, as Black Mesa was strip-mined and NGS pumped pollutants into the Navajo air-shed, virtually none of the electricity generated at NGS flowed to Navajo or Hopi households or business. To this day, nearly a third of Navajo homes lack access to running water or electricity.

At the same time, Navajo and Hopi people have borne the brunt of NGS and the mines’ environmental destruction. In addition to air pollution, for years, the coal mines required tremendous amounts of water to slurry the coal to the Mojave Generating Station (which has since closed.) Pristine aquifers that underlie Black Mesa were drawn down, and according to many tribal members local springs have dried up, causing land subsidence and leaving insufficient water for farming and drinking. The shift away from coal is therefore necessary not only to address global climate change, but also to restore the health and integrity of the Navajo and Hopi landscapes.

The Crow Tribe, Navajo Nation, Hopi Tribe, and other communities that have suffered fossil fuel development’s environmental harms are also the most vulnerable to the effects of climate change. Their arid homelands will undergo prolonged cycles of drought, more extreme weather patterns, and disruptions to ecological systems at the heart of their cultures. At the same time, their economies are being rocked by the sudden decline of coal. This one-two-three punch stems from the long history of intertwined discriminatory effects of development and conservation. Laws and policies that fostered resource extraction and development left legacies of boom-and-bust economies, and environmental protection never quite reached areas that much of the rest of the country viewed as desolate sacrifice zones. At the height of late 1960s environmental activism, the Sierra Club and other national environmental groups traded dams in the Grand Canyon (canceled due to environmentalist wins) for the Navajo Generating Station (permitted after environmentalist concessions). And in the longer history of preservation laws, Native people were violently deprived of their landscapes in order to foster conservation for White settlers. The Crow Tribe, whose vast aboriginal territory extended from Yellowstone to the great plains, was evicted from the country’s first national park in the name of saving it for non-Indians.

The Draft IPPC report sounds in this larger context of inequality. The report urges that the poor should not bear the brunt of shifting to a zero-carbon world, but what might a just transition from a coal-dependent economy look like? As it turns out, there are some good ideas. Moving Forward: A Transition Plan for the Navajo Generating Station, a report by the Institute for Energy Economics, drafted in conjunction with DinéHózhó L3C (a Navajo community-based non-profit), analyzed the situation on the Navajo Nation. The Report concluded that with federal leadership and funding, it would be possible to provide temporary employment for plant and mine workers while spurring a long-term business and economic plan. Relying on Congress’s analogous efforts in the context of base closures, the Report outlines key features of a just transition: federal financial support for business transitions, payments to Tribal budgets, severance and temporary payments to employees, and funding for a “Transition Organization.” The Transition Organization would include representatives from Arizona’s business community, Arizona state and local governments, Navajo tribal and chapter governments, and unions and employee organizations. The goals would be to find one-to-one job replacement for all employees, to work with existing businesses to find transition employment, and to seed long-term sustainable and diversified economic activity. The report estimates that the transition would require a total federal contribution, over five years, of $380 million. This may well be optimistic, but it provides an informed blue-print for how to phase out coal that is grounded in specific facts about the region and its players. Even if the price estimate is too low, it is much smaller than the one the Trump administration was willing to pay to subsidize coal.

And yet… we can say definitively that federal leadership and funding for such an effort will not be forthcoming.

At this pivotal moment, it is important to focus on both aspects of this looming tragedy for the world’s poor. On one hand, the reasons for their double-vulnerability to climate change and its solutions are complex and deeply rooted in law and politics. On the other, just and equitable approaches are not inconceivable. They are just a long step away– across histories of color-coded injustice, which were shaped by laws and policies serving the interests (whether extractive or conservationist) of the powerful.