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.