Mary Nichols has been pivotal in California’s war on smog. But as her tenure ends next week, activists say she didn’t do enough to protect low-income communities and they scuttled her candidacy for Biden’s top environmental post. Wounded but tenacious, she’s contemplating her next battles.
“What were you thinking?” California’s top clean air enforcer Mary Nichols asked auto industry executives. “What were you thinking when you threw yourselves upon the mercy of the Trump administration to try to solve your problems?”
It was March of 2017, just two months into Donald Trump’s presidency, and the California Air Resources Board had gathered for a board meeting in Riverside to review the state’s clean car plans.
The topic was contentious: Even before Trump took office, automakers began pushing for him to revise rules fighting smog and climate change that they had agreed to years earlier. Not only was the Trump administration looking to roll back the standards, it was also weighing revoking the waiver that for decades has allowed California to set its own emission limits for cars.
In that boardroom, a top executive from a major auto industry trade group stood up in front of Nichols to tell her they hadn’t really meant to push things that far.
Nichols — her voice even and a small smile on her face — was having none of it.
“When we hear today that you didn’t really mean to question the validity of the California waiver, well, our newly confirmed head of the Environmental Protection Agency said he was prepared to do just that,” Nichols said.
In the meantime, Nichols worked behind the scenes, forging an unlikely and bold alliance with five major automakers to maintain California’s authority — enraging Trump and ensuring that the state would continue mandating the country’s cleanest cars and trucks.
Now Nichols, 75, will not seek reappointment when her term as air board chair ends next week — a position she’s held under three governors, starting in 1979.
It’s a government role that touches the lives of every single person in California and beyond. If you drive a car or take a bus, spray your hair, mow your lawn, or clean your tub, all of those are regulated by the Air Resources Board. Its rules ripple across the country and cost industries billions of dollars.
Nichols’ reputation as a tough but effective negotiator has earned her respect from regulators and regulated industries alike. Gina McCarthy, President-elect Joe Biden’s newly appointed climate czar, called Nichols a “Cheshire Cat” for her ability to quietly smile through negotiations, but still get “whatever the hell she wanted.”
Even executives from companies that have felt the weight of California’s strict standards and enforcement acknowledge Nichols’ power as a negotiator. Volkswagen, which California caught cheating on diesel emissions tests, must pay the state roughly $1.8 billion under a court settlement, yet the company still joined Nichols in defying the Trump administration.
“Mary’s strength is always in the fact that as ambitious and aggressive as she is — and by extension (the air board is) — she, at the end of the day, is also a pragmatist,” said Spencer Reeder, who negotiated the settlement as director of government affairs and sustainability at Volkswagen-owned Audi of America. “She is a good listener and understands where things will be more or less difficult.”
Nichols’ nearly 50-year war on air pollution began when health advisories for smog were declared almost every summer day in the Los Angeles region. Under her air board leadership for 21 years, cars, trucks and buses spew less particles and gases, port and railyard pollution has declined, consumer products have been reformulated and electric vehicle sales have climbed.
The board under her tenure also launched a landmark carbon trading program to combat climate change.
But those on the front lines of air pollution — many living in California’s low-income communities of color — have long criticized the program, saying it has allowed local hot spots of smog and toxic gases to continue.
“She’s had just indelible achievements. That can’t be questioned … (But) it’s unacceptable to continue down that path in a way that disregards communities that have borne the brunt of our fossil fuel-based economy and who have the worst air pollution,” said Gladys Limón, executive director of the California Environmental Justice Alliance based in Los Angeles.
The long-simmering opposition erupted earlier this month when Nichols emerged as a top contender to lead the EPA under Biden. Limón’s organization and more than 70 other environmental groups told Biden that Nichols has done too little to protect vulnerable Californians who live near polluting industries, like those in the port communities of Richmond and Wilmington.
It apparently proved to be a fatal blow to her candidacy. Instead, Biden nominated Michael Regan, a North Carolina official who prioritized environmental justice, as EPA administrator.
“We need leadership that will meaningfully engage and respond to frontline communities,” Limón said. “And that relationship, unfortunately, was not developed with Mary Nichols.”
The letter caught Nichols off-guard after her work to clean up diesel pollution billowing from California’s freight corridors and ports.
“We have been ahead of the country and the world in developing solutions for those problems,” Nichols said. “The idea that we have not done enough or have been indifferent to the needs of the people who are most affected by pollution is fundamentally wrong, unfair, and it’s insulting — not just to me but to the whole of my organization.”
‘We were facing a world that didn’t want us’
Nichols and environmental policy grew up together. She was a ten year old in Ithaca learning labor organizing songs from her family when President Dwight D. Eisenhower signed the first federal law funding air pollution research in 1955.
It was an upbringing that fused together academia, activism and the rough and tumble world of politics. Her father, Ben Nichols, was an engineering professor at Cornell University and three-term socialist mayor of Ithaca.
Her mother, Ethel Baron Nichols, who led the Ithaca public schools’ foreign language department, warned Nichols against learning to type for fear that it would limit Nichols’ career options to secretarial work. Her concern, Nichols remembered, was that “if you type, you’d always be typecast.”
When the Clean Air Act of 1963 began laying the groundwork for regulating air pollution, Nichols had just joined the March on Washington for civil rights and started her second year studying Russian literature at Cornell University.
Her first job after college, however, wasn’t in law or activism. She was hired as a part-time reporter, part-time secretary at the Wall Street Journal before graduating to full-time journalism.
But watching from the sidelines wasn’t for Nichols. She wanted to drive social change, so she left for a job reforming the criminal justice system. “I did not want to be continually asked to be somebody’s secretary — part time or full time or anything else,” she said. “I wanted to be one of the policymakers and one of the leaders, and so I decided to go to law school.”
She attended Yale during a time when few women enrolled in law school, and environmental law was barely in its infancy. Even then, her classmates noticed Nichols’ tenaciousness and pragmatism.
“That pattern of negotiating, of understanding power dynamics and understanding who’s on what side of a bargain was enormously helpful,” said retired US federal judge and former roommate Nancy Gertner, now a lecturer at Harvard Law School. “You have to understand that we were facing a world that didn’t want us … that we had to justify our existence. It didn’t matter what your pile of credentials were.”
Nichols’ environmental law career started the year after the Clean Air Act of 1970 established comprehensive air pollution limits nationwide.
She and her husband, attorney John Daum, moved to Los Angeles, where she took a job at the newly formed Center for Law in the Public Interest. It was a time when the area’s smog was so thick one resident told The New York Times, “We don’t breathe the smog here, we chew it.”
“I got into air pollution because it was pretty obvious that that was the major environmental problem in Los Angeles,” she said. “But it was also hard to figure out exactly what to do about it.”
About 45 years before Nichols berated auto-industry executives in that Riverside boardroom, she represented that city in one of the first lawsuits brought under the freshly minted Clean Air Act.
The EPA had rejected California’s plans to tackle smog-forming pollutants but hadn’t imposed a plan of its own. So in 1972, Riverside, suffering under a choking haze, retained Nichols’ firm to sue the EPA.
Nichols won her case, forcing the EPA to quickly develop a plan to bring California into compliance for clean air standards. Called a “political innovation,” the win kicked off a new era of clean air lawsuits where cities, states and environmental groups squared off against the EPA.
Clearing the air
Forty years ago, stage one smog alerts were declared every few days in the Los Angeles basin, yet for the past 22 years, alerts have plummeted to zero. Even on bad days, ozone, the main ingredient of smog, peaks at levels only a third of what they were then. The main reason: new cars, trucks and buses are roughly 99 percent cleaner than they were in 1970.
Nichols has been at the helm for much of that progress.
In 1974, air board Chair Tom Quinn asked Nichols — then very pregnant with the first of her two children — to join the board during California Gov. Jerry Brown’s first term. In 1979, he recommended that she take over his seat as chair.
“I thought she was just terrific. She was smart. She was committed. I thought this was like god has given me a gift,” said Quinn.
Nichols’ initial four-year term as chair was her first of many as a top bureaucrat in federal and state government.
She served in President Bill Clinton’s EPA as assistant administrator for air and radiation, where she helped tighten health standards for smog and set the first national limits for dangerous fine particle pollution.
Back in California, Gov. Gray Davis named Nichols Secretary of Natural Resources in 1999 before Gov. Arnold Schwarzenegger appointed her to chair the air board once again in 2007. She’s served under a rotating cast of governors ever since, from Schwarzenegger to Gov. Jerry Brown and Gov. Gavin Newsom.
“Mary Nichols is singular in her contribution to reducing air pollution and combating climate change because she was there longer than anyone else, or probably anyone else will ever be again,” Brown told CalMatters. “She brought knowledge. She brought judgment. And she brought skill in navigating the treacherous waters of government regulation.”
Nichols’ second tour at the air board came with a new responsibility: tackling climate-warming pollution. Nichols and the board worked with the Obama administration and major automakers to establish national greenhouse gas standards similar to California’s own first-in-the nation rules.
“California for decades now has been a path setter,” said Audi’s Reeder, who is headquartered in Sacramento. “They’ve been the one to really define what the future looks like in U.S. policy around transportation.”
As the Trump administration has worked to unravel those regulations, Nichols’ agency charted a detour around the rollbacks by cutting a deal with major carmakers. It also faced down opposition from oil companies, engine manufacturers, and ports to clean up dangerous diesel pollution around freight corridors.
In just the past year, the air board barrelled ahead with a first-in-the nation electric truck sales mandate, and set aggressive smog-cutting standards for both trucks and ships that are expected to eliminate some 10,000 tons of pollution per year and save thousands of lives.
And in September, Newsom signed an executive order directing the agency to eliminate sales of new gas-powered cars in the state by 2035. At the event to announce it, the governor paused before signing the order to deliver another speech. Nichols egged him on to seal the deal.
“I’m just a little worried,” she told him. “I want it signed!”
For decades, critics from oil and auto companies and other regulated industries have blamed air board rules for harming the economy and trying to force new technologies such as electric cars and trucks on consumers.
Assemblymember Jim Cooper, a business-aligned moderate Democrat from Elk Grove with backing from the oil and gas industry, said that the added costs disproportionately hurt the state’s low-income residents and people of color.
About a third of clean vehicle rebates, for instance, have gone to low-income and disadvantaged communities, according to the Center for Sustainable Energy. And air quality regulations add about $1,000 to the cost of every car, according to a 2004 UC Davis study.
By advancing the air board’s policies, Cooper said, “She has hurt California, and the most needy of Californians — the poor, disadvantaged communities.”
A casualty of cap and trade
Environmental justice advocates, however, say the opposite: that it’s actually the fossil fuel based-economy and inadequate environmental regulation that hurts low-income Californians and communities of color. Much of their frustration is aimed at cap and trade, the air board’s landmark program to cut greenhouse gases.
Conceived under Schwarzenegger before Nichols’ appointment and launched in 2013 during the Brown administration, the cap and trade program was the first in the country to create an economy-wide carbon market.
Companies that operate oil refineries, power plants and manufacturing facilities must meet a declining cap on greenhouse gases. They can do so by updating their facilities, or by buying credits without cutting their own emissions. The air board awards some free credits to industries considered at risk of leaving California. Companies can also offset some of their emissions by investing in projects like forest conservation, some of which are outside the state.
Cap and trade is the centerpiece of the state’s climate policies and provides funds for environmental projects, including in disadvantaged communities. But it also triggered criticism from those who say it doesn’t cut enough carbon and allows companies to continue polluting their communities.
Nichols “has staunchly pursued and defended carbon trading, while minimizing state policies that required direct emission reductions and other climate policy implementing programs that benefit environmental justice communities,” the groups wrote in their letter to Biden urging him to reject her as EPA administrator.
The advocates say Nichols ignored their concerns and has done too little to address pollution hotspots. “The needs and community-based solutions that have been raised have time and time again been dismissed or disregarded,” Limón said.
Environmental justice advocate Mari Rose Taruc, who is based in Oakland, added that Nichols “had blinders, and that’s what we were trying to get her to see.”
Nichols said the facts speak for themselves. “There is absolutely no evidence that air quality has gotten worse in environmental justice communities as a result of the cap and trade program,” she said, adding that an array of other state and regional rules are cleaning up local polluters.
Air quality remains unhealthful throughout much of California, with much more work to be done. But the biggest barrier to figuring out the impact of cap and trade on local communities is a lack of data and few studies. The air agency is working to fix that as it implements legislation to improve air pollution monitoring.
Assemblymember Cristina Garcia, a Democrat from Bell Gardens who authored the legislation, said Nichols was caught in the crossfire by a movement that is struggling to address the plight of polluted communities.
“Mary Nichols brings a wealth of knowledge, experiences, and relationships that we need and could put to work for the (environmental justice) agenda,” she said. “I just think for folks it wasn’t clear that it would ever be put to work for their agenda.”
Nichols’ supporters sympathized with the environmental justice advocates’ concerns, but say there’s more to Nichols’ career than cap and trade.
“I agree with the environmental justice community on that issue. However, I think you can’t just narrowly look at that,” said Joe Lyou, president of the Coalition for Clean Air and self-described critic of cap and trade who did not sign the letter to Biden. “You cannot discount the impact — beneficial impact — that her work and her efforts have had on those communities.”
The tumult around Nichols candidacy came as she weathered the pandemic at her home in the Hancock Park neighborhood of Los Angeles with her family and dog. After her husband died from cancer in 2016, she remodeled the house so she could share it with her son, who also is a lawyer, daughter-in-law, and grandson.
Nichols — with a mask dangling from her neck, and her usually close-cropped gray hair curling around her ears — said via a Zoom Interview last month that she tends not to look backwards.
“Part of what you see when you look at my career is that I’m already working on the next problem, the next issue,” she said. “I’m always questioning, how could I do better? How can I do more?”
For now, she said she’s still weighing her next steps — and has received some intriguing suggestions over the past few days. One thing she said she’s determined to do, however, is to write a book about the history of California’s clean air and climate policies, through the lens of her own experiences.
“I’ll have to decide if the EPA episode is a chapter, a footnote, or an endnote,” Nichols said. “It’s not planned to be a focus.”
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