California’s GHG Delay – some background links
March 30, 2011
Readers hoping to get a bit more commentary on the legal status of California’s greenhouse gas plans in light of the Association of Irritated Residents et al. decision might find this post over at the Legal Planet useful. The post, which collects a number of different legal takes on the superior court decision, is a good place to get some context around the decision. Of particular note is Professor Ann Carson’s opinion that the decision is, at most, a temporary set back.
Another interesting post notes that the decision purports to stop the State’s entire “Scoping Plan” which is the plan that the California Air Resources Board (CARB) is using to implement AB-32 (California’s Global Warming Solutions Act). This is a problem that the CARB and the Plaintiffs are currently discussing before the Writ of Mandate is issued (the order that tells the ARB what it has to do to comply with the ruling), since the Write of Mandate is often drafted based on language provided by the parties. While the Scoping Plan was struck down based on a procedural ruling that it did not comply with procedural rules under California’s Environmental Quality Act, failing to consider alternatives to cap-and-trade, for example, Sean Hecht reports that the cap-and-trade portion of the plan only covered 20% of proposed emissions reductions. It is unlikely that the people who launched the suit (many are environmental groups) really want the entire Scoping Plan struck down or stalled.
California Judge Halts Cap-and-Trade Plan
March 22, 2011
The Superior Court of California put the breaks on the state’s comprehensive climate change legislative regime ruling the regulatory agency is required to more comprehensively consider public comments and alternatives to the state’s cap and trade program.
This is a sure setback for California’s Air Resources Board (“ARB”) in it’s attempt to implement the groundbreaking Global Warming Solutions Act, 2006 (“AB 32”), which provides the legislative basis for the cap-and-trade plan set to start January 1, 2012. Judge Ernest H. Goldsmith’s 35-page judgment was filed March 18, 2011 and publicly released Monday in response to a petition that the regime was put in place without properly considering alternatives. The judge denied the Petitioner’s request to require the ARB to revise its scoping plan, however did set aside the certification of the Functional Equivalent Document or FED, requiring a more comprehensive consideration of alternatives and public comments.
According to reporting by the Los Angeles Times, the ARB intends to appeal the decision. This decision comes at a time of significant debate and controversy regarding climate change policy, but one where the public has indicated support for the state’s planned regime. During last November’s mid-term election California votes rejected a ballot measure that would have delayed the cap-and-trade program, and other climate change measures.
California carbon industry insiders indicate that the state is still likely to implement AB 32 within the planned time-frame; however, only time will tell if this will be possible. We will be watching developments closely as any delay in California’s implementation of the cap-and-trade system could spell significant delays for Canadian jurisdictions that are planning a cap-and-trade system in partnership with California under the Western Climate Initiative.
