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Reclaiming Our Health: The Decades-Long Fight to Close Refinery Pollution Loopholes

November 5, 2021
By
Oscar Espino-Padron Senior Attorney
Adrian Martinez Senior Attorney

A disaster of an experiment with pollution trading is coming to an end.

On Nov. 5, the Governing Board of the Southern California’s South Coast Air Quality Management District (Air District) — the agency responsible for regulating air pollution from stationary sources like refineries and powerplants — unanimously voted "yes" on the most important life-saving regulation to clean up stationary sources of pollution in decades.

The rule, which will require oil refineries to install readily available pollution controls, marks a critical turning point in a decades-long struggle by fenceline communities fighting a broken system built by the oil industry for the oil industry. After enduring decades of dangerously unhealthy air and living next door to unaccountable facilities who regularly pollute already overburdened communities with toxic chemicals like benzene, this rule is a watershed moment for Southern California’s fenceline communities, and the culmination of a very, very long struggle.

The benefits of this rule change speak for themselves. An Air District report estimates the rule’s public health benefits are worth $3.49 billion over the next 15 years. This rule is projected to save 370 lives from premature deaths, prevent more than 6,200 asthma attacks, and prevent 21,400 missed work days, keeping kids in school and adults at work instead of at home or in the hospital for respiratory harms caused by refinery pollution.

View a fact sheet about the benefits of the refinery rule.

On top of making it safer to breathe and improving the quality of life for thousands of fenceline community members, the rule also creates massive employment opportunities. The abysmally long delay of refineries in cleaning up their operations means that thousands of people will be put to work to install this pollution control equipment. The Air District has estimated that over the 12 years of this rule, an average of more than 1,800 jobs will be created. In its peak year, more than 4,000 jobs will be created.

To understand the significance of this change, it’s important to understand how we got here.

Part 1: The Air District Buys What the Oil Lobbyists Are Selling

In the early 1990s the Air District abandoned the mandatory rules fundamental to regulation, and instead took a dangerous detour into a new type of program alleged to reduce pollution called pollution trading. Like a juicer salesperson on late-night television, oil lobbyists invented and sold the air district on a grandiose vision for a pollution trading scheme that they claimed would deliver emissions reductions quickly and economically.

These lobbyists convinced the Air District to rip up its rules called “command and control,” which set specific requirements for large polluters to install what was then the best available pollution control technology. In its place, they created the Regional Clean Air Incentives Market — or RECLAIM. The trading was for nitrogen oxides or “NOx,” which are harmful pollutants that, when mixed with volatile organic compounds and baked in the sun, form smog. NOx are generated by burning fossil fuels, and they’re a major contributor to the blankets of smog that cover Los Angeles for more than a third of the year. It’s kind of like a stock market where people make money selling and trading, but instead of stocks, bonds, or commodities like grain and steel, they are trading the right to send pollution into the lungs of Southland residents.

The pollution trading program has been and continues to be a nightmare. It gave a veneer of pollution reductions happening with one big problem — the amount of reductions the law required was not actually occurring.

Part 2: The Air District Doubles Down on Its Failed Experiment 

By 2015, it was glaringly clear that the RECLAIM program was a massive failure. With far too many credits available, the glut made credits so cheap that mega-polluters like refineries were hoarding credits. This led to a shocking increase in refinery emissions over the course of 20 years, as refineries opted to buy credits instead of installing vitally needed and readily available pollution control equipment.

Faced with mounting evidence that RECLAIM was failing to create the promised pollution reductions, Air District staff recommended removing a lot of credits from the system. Staff hoped that this basic reform would drive the cost of credits up enough to at least nudge some of the region’s largest polluters to clean up their pollution.

But even this modest reform was too much for the oil industry. Oil industry lobbyists leapt back into action, creating their own alternative proposal full of loopholes so that polluters could keep polluting at will. Instead of supporting their own staff’s recommendations for a more health-protective proposal to curb harmful smog, the Air District’s appointed leaders approved industry’s far weaker plan. This decision was so outrageous that it elicited a scathing editorial in the Los Angeles Times, where the editorial board called out the agency, blasting its choice to “make it easier for oil refineries, power plants, and other big industrial operations to keep spewing smoggy emissions.”

The decision to back industry’s proposal left a deep stain on the Air District and a bitter taste in the mouths of folks who were frustrated with the RECLAIM program — and now even more frustrated that the agency had just rubber-stamped a plan to allow refineries to continue their deadly pollution.

Part 3: Frontline Communities Have Had Enough and Take the Air District to Court

The blatant illegality of the Air District’s maneuver was met with stiff resistance. Earthjustice, on behalf of Communities for a Better Environment, the Center for Biological Diversity, and the Sierra Club, along with the Natural Resources Defense Council, filed a lawsuit challenging the air district board’s approval of this unlawful plan. And we won.

Faced with the court case and mounting public pressure, the Air District’s Governing Board in 2017 at last relented and made a U-turn, directing staff to start dismantling the RECLAIM program and shift to command-and-control rules to finally clean up the largest industrial polluters in the region. The irony is the oil industry overreach in 2015 likely led to the backlash of dismantling their prized program that protected their pocketbooks for over 20 years.

At long last, the Air District began developing rules to curb the region’s largest stationary sources of pollution. Of those rules, the one that could eliminate the most pollution — and therefore the one that is most important — is the refinery rule.

Moving Forward: Regaining Our Agency For People, Not Polluters

The sad truth is that hundreds of lives could have been saved if we fixed this problem earlier. For nearly three decades, the Air District gave industry a free pass by letting lobbyists design an opaque trading scheme that allowed polluters to game the system and avoid cleaning up. The Air District is a pawn in industry’s deadly game, but the ultimate losers are the fenceline communities who have spent their entire lives struggling to breathe near these refineries. We can never get those years back, but what we can do is learn from our mistakes.

Trading did not work no matter how much industry lobbyists want to claim it did. Half of the equipment — hundreds of pieces at refineries — covered under the RECLAIM scheme did not install readily available and life-saving pollution controls. This dirty, decades-old equipment spewed out more pollution into communities than it should have for decades. And, this happened in the most ozone-choked area of the country, the South Coast Air Basin that includes millions of residents and families in Los Angeles, Orange, San Bernardino, and Riverside counties.

Mercifully, this three-decade disaster of an experiment with pollution trading is coming to an end. We have all learned a grave and painful lesson about what can happen if oil companies are allowed to exert unchecked control over their regulators for decades. In the end, the refinery rule is by no means perfect, but it is certain that these refineries will finally have to install life-saving pollution controls as we continue to work towards a transition away from fossil fuels. Most importantly, it is a slight bit of justice from an industry that has taken so much from the health and well-being of communities in the shadows of these fossil fuel behemoths.

Despite years of industry tactics to delay the refinery rule, our community partners at East Yard Communities for Environmental Justice and Communities for a Better Environment have stood strong against these industry efforts and organized to push the refinery rule across the finish line. As we turn to a new chapter at the Air District, the agency is taking a major step toward meaningful reductions and steering towards its mission to clean the air and protect the health of all residents. Earthjustice will continue to fight alongside communities that for far too long have been forced to breathe in air that’s so polluted it’s illegal.

Hear From Our Partners

“Rule 1109.1 does not focus specifically on global climate change impacts but focuses on what frontline Black and brown working-class residents experience living near refinery facilities. This rule will allow residents to breathe easier as we continue to organize and advocate for transition away from fossil fuel. If the SCAQMD Governing Board were to pass Refinery Rule 1109.1, it would signal that they are finally ready to do their job and hold refineries accountable and protect the public health. This rule signals future opportunities to push for mitigation, prevention, and the hope is transition. If the community can pass this, we can work towards any win no matter how little or small.” – Jan Victor Andasan, Community Organizer, East Yard Communities for Environmental Justice

“This rule is long overdue it's finally going to do what the failed RECLAIM pollution trading program did not do for over 20 years reduce Nitrogen Oxides at oil refineries by millions of pounds per year. These emissions affect people's breathing, exacerbate asthma, and create all this smog. The rule will provide some justice for communities such as Wilmington most exposed due to being so close to the refineries.” – Alicia Rivera, Wilmington Community Organizer, Communities for a Better Environment

This blog was originally published on Nov. 3, 2021. It has been updated to reflect the Air District's vote.

Kids play soccer near the Phillips 66 refinery in Wilmington, Calif.

Kids play soccer near the Phillips 66 refinery in Wilmington, Calif.

Hannah Benet for Earthjustice