Stephen Campbell

February 10, 2011

In a somewhat ironic California Superior Court ruling, an act originally aimed at upholding environmental quality by mandating consideration of alternatives to projects which may negatively impact it is here providing an impediment to legislation specifically designed to assist it.

The California Global Warming Solutions Act of 2006 had its path to implementation halted last week when the County of San Francisco Superior Court ruled the proper procedural steps had not been taken during its enactment. Because the California Legislature found global warming to be a real and imminent threat to numerous state industries, the Act attempts to establish California as a leader in carbon emission reductions and aims at reducing them to 1990 levels by 2020. The Act requires the California Air Resources Board (ARB) to develop a plan for achieving all cost-effective, technically possible reductions using devices such as "direct emission reduction measures, alternative compliance mechanisms, market-based compliance mechanisms, and potential monetary and nonmonetary incentives." Pursuant to the act and its emission reduction target, the ARB created regulations which would establish, among other measures, a cap and trade program. The court found the procedures used to arrive at this draft of the regulation to be improper.

According to the court, alternatives to a cap and trade carbon market were not adequately considered before its inclusion in the regulations. The California Environmental Quality Act (CEQA) requires proposed projects to consider, evaluate, and analyze a reasonable range of alternatives to the planned measures which may result in a less significant environmental impact, similar to the procedural requirements of the National Environmental Policy Act. The court held that these regulations did not include an explanation of why the ARB chose a cap and trade program as its main approach for implementing the legislation sufficient to inform the public of why it was preferable to alternatives. Proceeding without this analysis while claiming it would come later as the project developed was inadequate to satisfy the CEQA requirements. The court therefore issued a tentative decision stating that the ARB proceeded in an unlawful manner.

While this tentative decision does not result in the end of these regulations and their corresponding legislation, it does put their implementation on hold until they can be reviewed using the proper procedures. A proper analysis of alternatives including facts and data to support the decisions set forth in them will probably be enough to overcome this obstruction. Once the ARB adequately complies with CEQA procedures the legislation will likely be on its way to making California a leader in carbon emission reduction.

Sources:

Ass'n of Irritated Residents v. California Air Res. Bd, No. CPF-09-509562 (Cal. Sup. Ct. Jan. 24, 2011) (order granting in part petition for writ of mandate).

Cal. Health and Safety Code § 38500 (West 2006).

Felicity Barringer, California Law to Curb Greenhouse Gases Faces a Legal Hurdle, N. Y. Times, Feb. 4, 2010, available at http://www.nytimes.com/2011/02/05/science/earth/05emit.html?smid=tw-nytimes.

Peter Henderson & Terry Baynes, California Court Clouds Cap-and-Trade Outlook, Reuters Legal, Feb. 2, 2010, available at http://www.reuters.com/article/2011/02/02/us-california-idUSTRE71110I20110202.