March 22, 2011
California Court Blocks Implementation Of Cap-And-Trade Program, Other Measures
Consistent with the tentative decision handed down in the lawsuit filed by environmental justice advocates on Jan. 21, Judge Ernest H. Goldsmith found that the California Air Resources Board failed to adequately consider alternatives to the measures it included in the scoping plan developed to implement A.B. 32 (23 DEN A-3, 2/3/11).
The March 18 decision is a setback for the CARB, which hopes to launch in 2012 the multisector emissions trading program it adopted in December.
“We disagree with the court's decision and intend to appeal,” CARB told BNA in a statement. “We completed a robust and comprehensive examination of the alternatives to cap and trade with a 500-page environmental analysis that fully addresses the concerns the court raises. We will rely on this analysis in responding to the court's decision.”
Improper Implementation.
Goldsmith also held, in both the tentative and final decisions, that CARB improperly began implementing the scoping plan before completing the environmental review required under the California Environmental Quality Act (CEQA).Like his earlier decision, Goldsmith's final order rejected plaintiffs' claims that CARB in approving the scoping plan in 2008 failed to comply with statutory requirements of A.B. 32 and that under CEQA, the agency was required to provide a detailed environmental analysis of each of the measures and programs prescribed by the scoping plan.
The “functional equivalent document (FED)” prepared by CARB for the scoping plan lacks any meaningful information or discussion about alternatives to the proposed cap-and-trade program, Goldsmith said in the final decision.
CARB did not “adequately describe and analyze alternatives sufficient for informed decision-making and public review,” Goldsmith held. As a result, CARB abused its discretion in certifying the FED as complete, he concluded.
The agency also violated “the informational requirements of CEQA and its own certified regulatory program” when it approved the scoping plan and began implementing it without completing the environmental review process, Goldsmith said.
Writ of Mandate.
Goldsmith directed plaintiffs to prepare a writ of mandate commanding CARB to set aside its certification of the FED and blocking any further implementation of the scoping plan measures until the agency comes into complete compliance with its obligations under its certified regulatory program and CEQA.In its response, CARB said it wants to clarify “the scope of the judge's order since slowing down the implementation of all measures in the Scoping Plan is at odds with the court's more limited discussion of the issue regarding the environmental analysis of the cap and trade draft regulation.”
“We believe plaintiffs did not intend to put on hold efforts to improve energy efficiency, establish clean car standards, and develop low-carbon fuel regulations,” CARB said. “A broadly worded writ puts at risk a range of efforts to move California to a clean energy economy and improve the environment and public health.”
Impact on Low-Income Communities.
Plaintiffs believe the multisector greenhouse gas emissions trading program CARB adopted will adversely affect minority and low-income communities.CARB said its record of the cap-and-trade rulemaking, including a health impacts analysis, “demonstrates that claims of environmental harm from a program of tradable allowances for greenhouses are unfounded.”
In court documents responding to the tentative decision, CARB argued that Goldsmith's findings were inconsistent with determinations he made elsewhere. CARB also contended its “alternatives analysis” was adequate and that it had complied with the legal requirements of CEQA (30 DEN A-7, 2/14/11).
CARB also argued that any final injunction issued should not hinder its ability to enact regulations under A.B. 32 because the statute is not conditioned on final approval of the scoping plan.
“To find that [C]ARB's rulemaking authority under A.B. 32 is completely severable from its obligation to prepare a scoping plan would render that obligation an expensive and meaningless waste of time,” Goldsmith said in rejecting the agency's argument. “Continued rulemaking and implementation of cap and trade will render consideration of alternatives a nullity as a mature cap and trade program would be in place well advanced from the premature implementation which has already taken place. In order to ensure that [C]ARB adequately considers alternatives to the Scoping Plan and exposes its analysis to public scrutiny prior to implementing the measures contained therein, the Court must enjoin any further rulemaking until [C]ARB amends the FED in accordance with this decision.”
More Than Cap-And-Trade.
Adrienne Block, an attorney with plaintiff Communities for a Better Environment, told BNA March 21 the decision means CARB will finally have to consider more than a cap-and-trade program. Complying with the order will not be just a “paper exercise for CARB,’’ Block said.“We're willing to work with CARB to make sure we have an effective plan going forward,” Block told BNA.
The Association for Irritated Residents, Communities Against Toxics, Coalition for a Safe Environment, Society for Positive Action, and West County Toxics Coalition are among the other plaintiffs in the lawsuit.
The groups believe the multisector greenhouse gas emissions trading program CARB adopted in December and that it hopes to launch in 2012 will adversely impact minority and low-income communities.
“CARB refused to do its job, so we were left with no other choice but to sue to protect public health,” Caroline Farrell, executive director for the Center on Race, Poverty & the Environment who represented some of the plaintiffs, said in a statement.
By Carolyn Whetzel
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