Since the passage of the Global Warming Solutions Act of 2006 (otherwise known as AB 32), the California Air Resources Board (ARB) has met all of the Act’s deadlines for reaching the 2020 goal of reducing California’s greenhouse gas emissions to 1990 levels. This includes ARB’s December 2008 approval of the Scoping Plan (PDF), which established a blueprint for how ARB intends to meet the 2020 greenhouse gas reduction goal, and its December 2010 approval of cap-and-trade regulations, which would create the most comprehensive greenhouse gas program in the nation.
A recent development in Association of Irritated Residents v. California Air Resources Board, a case challenging the Scoping Plan, has put into question the Scoping Plan’s approval, and the implementation of ARB’s cap-and-trade regulations by extension. On January 24, 2011, a San Francisco Superior Court Judge issued a tentative decision that, if entered as the court’s final decision, would delay further implementation of the Scoping Plan. The tentative decision concluded that ARB acted within its discretion in approving the Scoping Plan, and that its environmental analysis of the Scoping Plan under the California Environmental Quality Act (CEQA) was mostly correct. However, the petitioners convinced the court that ARB’s analysis of alternatives to the Scoping Plan was insufficient, and that ARB acted improperly by adopting the Scoping Plan five months before it published its responses to public comments on the CEQA document.
What happens now? If the court sticks with its tentative decision, then it will issue a writ “enjoining any implementation of the Scoping Plan until after [ARB] has come into complete compliance” with CEQA, and ARB will have a strategic choice to make. It could immediately appeal and seek to stay the court’s order during the pendency of the appeal; it could proceed to do the CEQA fix; or it could choose to take both paths in parallel.
One interesting question is how broad the scope of a writ enjoining ARB’s implementation of the Scoping Plan would be. On one extreme, the court could completely enjoin any activities that implement the Scoping Plan, which could even extend to the cap-and-trade regulations and many other ARB activities under the Scoping Plan. Another interpretation might be for the court to allow ARB to continue work so long as it is not publicly implementing the Scoping Plan by hosting public workshops, meetings, etc. or passing new regulations or enforcing existing regulations. If the tentative decision holds, the exact scope of the writ is likely to be the subject of further briefing and argument before the court.
Time will tell whether this decision, when final, will prove to be a minor speed bump in ARB’s implementation of AB 32, or the first serious delay the ARB has experienced in over four years of implementing AB 32.