Apr 04 2011

One Step Forward, Two Steps Back: 9th Circuit Sends California’s AB 32 Back to Reconsider Alternatives

Mount Whitney, in California, is the highest point in the contiguous US, via wikimedia

The 9th Circuit recently issued its final ruling that a key part of California’s landmark climate change bill, AB 32, had not properly considered all alternatives and must be reevaluated.  The part in question is the “scoping plan” that the Air Resources Board was required to develop under the bill as a way to achieve the goal of reducing greenhouse gases to 1990 levels by 2020. The plan was challenged by several environmental justice advocacy groups because it relied heavily on a cap-and-trade system to achieve the required results, a method the groups say would harm poverty stricken areas by allowing pollution sources to buy their way out of reducing emissions.  The organizations argue that air pollution disproportionately affects low-income areas and may get worse if polluters could buy their way to compliance.  The 9th Circuit decided that the Air Resources Board had not properly analyze all potential alternatives to the cap-and-trade program and therefore violated the requirements of the California Environmental Quality Act.  The scoping plan has been sent back to the agency to be reconsidered, delaying implementation of AB 32.  This decision comes less than a year after Proposition 23, which would have suspended AB 32 until unemployment had dropped below 5.5%, was defeated by California voters.

Complete text of the final decision from the Ninth Circuit (pdf)

Legal Planet: “The recent court decision blocking California’s scoping plan to reduce greenhouse gas emissions: One-stop shopping for recent Legal Planet commentary”

Several of the bloggers on Legal Planet have been commenting extensively on the recent California court decision that will block the California Air Resources Board from moving forward with its AB 32 Scoping Plan and related regulations.  I’ve provided links below to a series of our posts on this decision.

The court, ruling on a lawsuit brought by environmental justice advocates under the California Environmental Quality Act,  found that the ARB’s adoption of its scoping plan  – created by the ARB to implement AB 32, California’s landmark law to reduce the greenhouse gases that cause climate change to 1990 levels by 2020 — violated the California Environmental Quality Act.  The court found that the ARB didn’t adequately analyze potential alternatives to a “cap-and-trade” program.  At the same time, the court rejected challenges to the plan based on several other grounds.

Greenberg Blawg: “Update on San Francisco Case Halting AB32: Judge makes final his ruling to put California’s greenhouse gas bill on hold”

Last month, we reported on the tentative ruling issued by a San Francisco Superior Court judge calling into question the fate of California’s Global Warming Solutions Act of 2006 (better known as AB32). (Click here for the previous blog post.)

Well, last week, Judge Ernest Goldsmith affirmed that ruling. His final order halts implementation of AB32 because the California Air Resources Board violated CEQA (the California Environmental Quality Act) by failing to adequately consider certain alternatives to the cap-and-trade system CARB was set to implement.

Legal Planet: “Assessing the Environmental Justice Arguments against Cap and Trade”

As Cara wrote yesterday, a California court has put AB 32 on hold temporarily on the grounds that in preparing its scoping plan, the California Air Resources Board failed to assess alternatives to its plan with appropriate detail.  In particular, the court took issue with CARB’s failure , under the California Environmental Quality Act, to assess carbon taxes as an alternative to an economy wide cap and trade scheme (though as both Cara and I have written, the court case should at worst delay AB 32′s implementation and the court rejected all of the plaintiffs’ substantive challenges to the scoping plan).

Environmental Law Prof Blog: “A Historical Perspective on the AB 32 Lawsuit”

The folks at Legal Planet have done a great job discussing the California Superior Court decision, Association of Irritated Residents, et al. v.  California Air Resources Board (available here), which enjoins further AB32 rulemaking and implementation until the Air Resources Board adequately considers alternatives to cap-and-trade.

I agree very much with Sean Hecht that the environmental justice groups’ challenge is an expression of their values, and more specifically of their concerns about both the efficacy and the equity of cap-and- trade as a regulatory instrument.  The groups that filed this lawsuit, particularly Communities for a Better Environment (CBE), also strongly opposed the Regional Clean Air Incentives Market (RECLAIM) program, the cap-and-trade program instituted by the South Coast Air Quality Management District (SCAQMD) in 1994 to control the emissions of NOx and SOx from utilities and industrial facilities in the LA air district.  As it turns out, their concerns were well-founded.

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