By Michael G. Romey, Ryan Waterman, and Aron Potash
On March 18, 2011, a San Francisco Superior Court ruling (PDF) put the brakes on California’s implementation of its 2008 Scoping Plan, which established the State’s roadmap to achieve the greenhouse gas (GHG) emissions reduction goal expressed in the Global Warming Solutions Act of 2006 (AB 32). Pointing to alleged substantive and procedural flaws in how the California Air Resources Board (CARB) complied with the California Environmental Quality Act (CEQA) when approving the Scoping Plan, the court enjoined CARB from any further implementation of the measures contained in the Scoping Plan until after CARB “comes into complete compliance with its obligations” under CEQA. The decision brings into question whether CARB will be able to proceed as planned with implementing by January 2012 the cap-and-trade scheme, which is the centerpiece of the first economy-wide program in the United States to limit GHG emissions.
California drew international attention in 2006 by enacting AB 32, which requires the state to reduce GHG emissions to 1990 levels by 2020. CARB was charged with implementing AB 32 and approved a Scoping Plan (PDF) in December 2008, which created a detailed roadmap of programs that CARB planned to promulgate to reach the 2020 GHG goal, including a economy-wide cap-and-trade program. Since that time, CARB has approved a number of regulations contemplated by the Scoping Plan, including the GHG cap-and-trade program this past December 2010 (PDF).
Not wavering from its January 2011 tentative decision (PDF), the court found that CARB violated CEQA by failing to fully evaluate possible alternatives to the measures described in the Scoping Plan, and focused specifically on the cap and trade program. The court wrote that:
ARB’s extensive evaluation of the proposed cap and trade program…provides the public with information about cap and trade only. CEQA requires that ARB undertake a similar analysis of the impacts of each alternative so that the public may know not only why cap and trade was chosen, but also why the alternatives were not.
The decision criticized the Scoping Plan CEQA analysis for failing to specifically discuss in detail a carbon fee alternative to cap-and-trade. Cap-and-trade is not a “fait accompli,” the court wrote.
The decision enjoins “further implementation of the measures contained in the Scoping Plan”, including the cap-and-trade program scheduled to go into effect on January 1, 2012, “until CARB comes into complete compliance with its obligations under its certified regulatory program and CEQA.”
The court ordered the plaintiffs, who include a number of environmental groups, to prepare a Writ of Mandate consistent with the decision. CARB has publicly announced that it intends to appeal this ruling. In addition, CARB has announced an intent to clarify the scope of the order, which enjoins CARB’s implementation of all measures in the Scoping Plan, presumably including programs like improved energy efficiency, clean car standards, and low-carbon fuel regulations. CARB contends that the scope of the Writ should have been limited to the cap-and-trade program itself, which petitioners targeted in their petition.
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