California Dream 2.0

In Defense of California’s Low Carbon Fuel Standard

In late December, a federal court district judge in Fresno ruled that California’s Low Carbon Fuel Standard (LCFS) was unconstitutional because it violates the limits imposed on states by the Commerce Clause of the United States Constitution. The ruling halted its enforcement pending appeal to the U.S. Court of Appeals for the Ninth Circuit.

The suit was filed by refiners, truckers, and fuel production companies – most of which have the bulk of their operations out of state and would rather litigate than innovate, putting profits before people. It is yet another industry attack on the state’s landmark climate and energy law, AB 32, which consists of measures such as the LCFS that will be used to reduce California’s greenhouse gas pollution to 1990 levels by 2020.

California’s LCFS is a scientifically credible standard that was carefully designed to cut climate change pollution, protect and improve public health and drive innovation that delivers economic benefits. These are among the key reasons why Environmental Defense Fund joined California and three other environmental organizations in an appeal of the suit asking to keep the LCFS intact.

Cutting climate pollution

As designed, the LCFS reduces the amount of carbon released during the production, shipping and use of transportation fuels sold in California by 10% between now and 2020. This “lifecycle” approach to managing emissions from fuels was pioneered by Argonne National Labs and is the accepted standard used by the federal EPA and other states and nations.

Improving air quality

California has some of the worst air quality in the country. In addition to fighting climate change, the LCFS cuts pollution that poisons our air and water and results in respiratory ailments and diseases that cost us tens of billions of dollars a year in health care costs. By facilitating newer, less polluting transportation fuels, the LCFS can help California finally achieve attainment of federal health standards for air quality.

Driving innovation

The standard would deliver significant benefits to the state and national economy. California is home to the world’s most advanced biofuel and electric car companies, hydrogen infrastructure, and transportation fuel research institutions. These entities operate here because California has created an environment where scientific enterprises can prosper, and in the case of the LCFS, earn a return on investment by reducing pollution cheaply and quickly. Over the next decade, the standard provides new opportunity for innovators in and out of California to reap the rewards of developing cheap and lasting alternatives to gasoline.

The deep-pocketed oil industry can easily afford to protect its profits. Yet, as The New York Times recently noted in an editorial under the headline, ‘California’s Persistence,’ the industry is up against a state that ‘has a long and productive history as a leader in environmental policy, requiring cleaner cars and power plants and more energy-efficient appliances.’

We are confident that this standard will be restored on appeal, enabling California to continue doing what it excels at: driving advances in energy that grow the economy and protect our environment.

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Court Discharges Case against California Climate Law

More than two years after a suit was filed to stop California’s cap-and-trade program, a San Francisco superior court yesterday approved the state’s recently submitted environmental impact analysis, confirming that California has adequately studied options for how to meet its climate goals.

The California Air Resources Board (CARB) got a thumbs up on its AB 32 Scoping Plan that features more than 70 pollution-reducing measures including a cap-and-trade regulation that will establish North America’s largest carbon market. These measures will work in concert to cut climate pollution to 1990 levels by 2020.

Although the overall litigation on the Scoping Plan is not over (pending resolution of the appeals process), the question of whether CARB’s new analysis satisfies the court’s initial concerns is settled.  This decision removes what was once a major obstacle to adopting the state’s greenhouse gas reduction plan and gives the state another green light to start enforcing cap-and-trade in 2013.

Yesterday’s decision is the latest ruling in a suit that was filed in 2009, shortly after the state adopted the Scoping Plan, a blueprint for reducing climate change pollution.  The suit claimed among other things that California hadn’t properly analyzed the full range of options for reducing pollution. In an earlier decision this past May, the trial judge affirmed CARB’s authority to pursue a market-based program, but said the level of detail in the required alternatives analysis needed improvement. CARB followed that by preparing an expanded analysis submitted to the court in October.  Yesterday’s action was the court’s approval of that newly submitted analysis. 

Parties looking to undermine California’s leadership in fighting climate change may still use the courts to try to stop the state’s landmark cap-and-trade regulation over the next year. EDF remains confident that California’s progress towards a low-carbon economy can and will remain on course.




Also posted in Climate, Global Warming Solutions Act: AB 32 / Comments are closed

Decoding the Final Decision in the AB 32 Lawsuit

A Superior Court in San Francisco issued a final judgment today in a lawsuit filed in 2009 by environmental justice (EJ) groups concerning California’s groundbreaking 2006 law, the Global Warming Solutions Act (AB 32), which sets limits on global warming pollution in the state.

As expected, the ruling establishes a new timeline and preconditions for continued implementation and final approval of the AB 32 cap-and-trade regulation. The ruling confirms the California Air Resources Board’s (CARB) ability to use cap-and-trade and should not force a delay in the planned launch of the program on January 1, 2012, as long as the agency meets its California Environmental Quality Act (CEQA) requirements laid out by the court.

The judge found that CARB did not adequately complete its legally mandated review of alternatives to cap and trade and must do so, then gain approval by its board and the judge prior to proceeding with implementation. Even before today’s ruling was issued, CARB had assured the public that it was significantly bolstering its analysis. EDF is eager to be part of the public process to review and comment on the updated analysis and believes the new documents will further illustrate the proven, far-reaching benefits of using market forces to limit pollution.

It’s worth noting that the California Department of Public Health evaluated the potential impacts of a cap-and-trade program and found that the regulation was not likely to cause any adverse impacts to public health and welfare – especially if money raised from the program gets reinvested in California communities to help protect against the impacts of climate change, an essential element of the state’s plan.

In a press release issued shortly after the ruling was announced, CARB said that it will appeal the ruling, a legal procedure that will likely allow it to continue working on the regulatory design and finishing touches before the new analysis is final.

Also posted in Climate, Global Warming Solutions Act: AB 32 / Read 1 Response

EDF’s Take on Friday’s Ruling in California’s Cap-and-trade Lawsuit

Key Takeaways 

  • The court’s decision confirms that CARB has the legal authority to implement AB 32 Scoping Plan measures, including cap-and-trade, which is the cornerstone of the program and key to reducing pollution.  
  • EDF is confident that any further actions by the Petitioners and the State will be consistent with their goal of keeping AB 32 moving forward and achieving its goals.

Last Friday, a Superior Court judge in San Francisco issued a “Statement of Decision” requiring California to stop implementing its climate law, AB 32, until additional Environmental Quality Act work is completed and approved by the Court.

The decision supported certain assertions by the defendants, the California Air Resources Board (CARB), and assertions made by plaintiffs (the Association of Irritated Residents and other groups). 

In support of CARB’s defense of AB 32, the judge found that the state had the legal authority to determine what measures to pursue, including cap-and-trade, as part of the Scoping Plan developed to meet the law’s emissions reductions goals. It also found the state performed a sufficient analysis on the potential impacts of Scoping Plan measures. 

In support of the plaintiffs, the court reiterated concern with the length and breadth of the documents developed to assess alternatives to the cap-and-trade program, and that CARB began “implementing” the program through public workshops while comments to the program were still being considered. 

These concerns over the state’s procedure serve as the basis for a court order that commands CARB “to set aside its certification of the FED (CEQA Functional Equivalency Document) and enjoining any further implementation of the measures contained in the Scoping Plan…” until a new document is written, approved by the board and submitted to and approved by the court.

So what’s next? It is likely that a Writ of Mandate will be filed within 10 days of Friday’s decision. The Writ is the plaintiffs’ interpretation of the decision and will include their preferred remedies.

The judge will then decide on the final remedy. Any appeal to that decision would have to be filed within 60 days from the date the decision was entered. 

It is unclear exactly what the court-ordered remedy will consist of and whether it will affect all work on measures to reduce greenhouse gas pollution; most likely it will not. It is clear from examining arguments of both parties before the Court that CARB and the environmental justice groups bringing the action against the State are committed to improving California’s environment and fighting climate change and do not intend to bring AB 32 work to a halt.

EDF expects that the parties will work to narrow the remedy so that CARB can proceed with some or most of the work to implement AB 32 while a new analysis is finalized and approved by the Court. Such a narrowing of the Writ is possible under California Public Resources Code 21168.9(b) and will be critical to ensuring that CARB can pursue a plan that protects public health, grows the state’s clean energy economy and reduces pollution. 

Although the parties are the best arbiters of their legal strategy, either party can appeal Friday’s decision. As a general rule, for cases of this type in California, a lower court decision is immediately stayed (barred from being implemented) pending the outcome of the appeal – meaning more legal back-and-forth could be in the works. 

Stay tuned.  We will keep you posted.

Also posted in Clean Energy, Climate, Global Warming Solutions Act: AB 32 / Comments are closed

What’s New? Objections Filed in the AB 32 Lawsuit

The parties involved in the lawsuit “Association of Irritated Residents v. California Air Resources Board (CARB)” filed objections yesterday to the judge’s tentative ruling that could lead to a temporary suspension of the state’s landmark climate change plan.

Given the breadth of the materials filed in this suit and the scope of the  ruling, the arguments in the objections were both expected and appropriate. In fact, they shouldn’t be a surprise to anyone. 

As our post explained last week, the AB 32 Scoping Plan is a unique document that defines how California will cut global warming pollution to 1990 levels by 2020 while protecting our economy and attracting billions of investment dollars in companies with innovative clean energy technologies.

Petitioners, representing environmental justice interests, sued the state more than a year ago to block the plan’s implementation. On January 24th, the San Francisco Superior Court judge hearing the case issued a tentative ruling telling CARB that the package of measures in the plan was legal but that the analysis of the alternatives to those measures, and the process used to pass the plan, was defective. 

So what happens now? Pursuant to California Rule of Court 3.1590, the court may order a hearing from which a final ruling would follow a maximum of 10 days later.  Without a hearing, we expect to see a ruling within 50 days from the date the tentative decision was filed or before March 15th.

One of the most important aspects of the state’s objections, as EDF sees it, is the request for more clarity on what the court found was wrong with the process, and what part of the plan it intends to stop or ‘enjoin’ in its decision. 

More certainty on these issues is vital. For California to cut pollution as required, improve its air quality and protect and grow its economy, CARB and other state agencies need to use all of the tools at their disposal. They also need certainty that important initiatives—such as the Million Solar Roofs program, the 33% renewable portfolio standard, and energy efficiency standards—can proceed. 

While we aren’t going to prejudge whether the state met its burden to study alternative approaches to cap-and-trade, we are confident that whatever final decision the court makes, the state can and will take the steps needed so that it can continue implementing the Scoping Plan’s wide range of measures, including its emissions-trading program that’s scheduled to start in January 2012.

Though the parties are on opposite sides of the court, there is one common thread running through this case: both sides appear to be committed to making sure the state’s decision-making process, and the implications of those decisions, are analyzed in an open forum.  California’s Environmental Quality Act demands it, as does the environment, and all California citizens and communities deserve it.

Also posted in Clean Energy, Climate, Global Warming Solutions Act: AB 32 / Read 1 Response

EDF’s Take on AB 32 Scoping Plan Lawsuit

A Superior Court in San Francisco issued a tentative ruling last week in a lawsuit filed in 2009 by environmental justice (EJ) groups. The groups are asserting that the state’s Air Resources Board (CARB) failed to comply with statutory requirements of AB 32 and the California Environmental Quality Act (CEQA) when it adopted the law’s Scoping Plan—the blueprint for cutting pollution to 1990 levels by 2020—in late 2008.

The tentative ruling affirms CARB’s authority, under AB 32, to pursue a market-based cap-and-trade program combined with an extensive list of other emissions reduction measures.  The court’s finding aligns with arguments EDF made about AB 32’s broad grant of authority in an amicus brief filed for the case last July. The ruling also states that CARB should have more fully assessed alternatives to emissions trading in its companion CEQA document.  In response to this finding, the court requests that state regulators halt implementation of AB 32 and complete further analysis.  The court also raised a larger question about whether one of CARB’s long-standing procedures for regulatory adoption is potentially flawed at meeting the ‘spirit of the [CEQA] law,’ an issue that will likely warrant further attention.

What happens next will be determined once the state and plaintiffs file another round of paperwork in the coming days.  Under California Rule of Court 3.1590, CARB has 15 days after the release of the tentative ruling to file an objection. While the court said that CARB should not implement the Scoping Plan (which includes roughly 70 measures) until the deficiencies are fixed, it is hard to imagine that putting in place other measures—ranging from using more renewable energy to improving building efficiency—would be barred by the order.

 A likely outcome of the tentative ruling is that CARB will release more analysis of regulatory program alternatives to reduce greenhouse gases in the context of the Scoping Plan, something the agency did extensive work on while this case was moving forward.  The judge will determine what procedure CARB must use to make the alternatives analysis public.  As it releases this additional analysis, CARB can simultaneously appeal the court’s decision (once it becomes final). 

It’s worth noting that both CARB and the California Department of Public Health evaluated the potential impacts of a cap-and-trade program and found that the regulation was not likely to cause any adverse impacts to public health and welfare—especially if money raised from the program is reinvested in California communities to help protect against the impacts of climate change.    

Though the ultimate outcome of the lawsuit and precise next steps are uncertain at this point, EDF believes the process will be completed in plenty of time to allow California’s ground breaking cap-and-trade program to start on schedule next January. Given the urgency of transitioning to cleaner sources of energy and unlocking the potential for economic and job growth, this would be good news for California.

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