By Whitney Hodges
On March 18, 2011, Judge Ernest Goldsmith of the San Francisco County
Superior Court suspended implementation of AB 32, California's landmark
law to reduce greenhouse gas ("GHG") emissions. In Association of Irritated Residents v. California Air Resource Board, [Statement of Decision]
the Court found the California Air Resource Board (the "ARB")'s
adoption of AB 32's Climate Change Scoping Plan (the "Scoping Plan") to
be in violation of the California Environmental Quality Act
("CEQA"). The ruling determined that the ARB abused its authority by not
adequately analyzing potential alternatives to a carbon "cap-and-trade"
program aimed at limiting GHG emissions...more
Current Status
Presently, the ARB staff is attempting to clarify the scope of Judge
Goldsmith's ruling terms of the implementation and writ to be issued, so
that it will apply solely to the cap-and-trade program, allowing the
other Scoping Plan policies to continue as scheduled. Kennedy stated,
"[W]e are in discussion with the petitioners to narrow the final risk so
not all the measures in the Scoping Plan are put at risk…we do think
there is room to make sure whatever the final decision is is written in a
way that is more narrow than some of the readings might be at this
point." ARB spokesman Young echoed those hopes stating: "we believe the
plaintiffs did not intend to put on hold efforts to improve energy
efficiency, establish clean car standards, and develop low carbon fuel
regulators." However, the ARB may have a tougher road than
anticipated. Jesse Marquez, executive director of Coalition for a Safe
Environment, a plaintiff in the case, insists the plaintiffs will not be
satisfied until cap-and-trade is completely eliminated from the ARB's
plan and is, instead, replaced with direct regulation. When asked if
there were any concession his group would make on a carbon market,
Marquez replied, "Absolutely no…Even if you put in a tax, a tax still
allows refiners to continue polluting…They'll just spend millions to
offset their pollution. The only way to offset refiner pollution is to
eliminate refiner pollution."
Taken at its word, any glimmer of hope to expedite a resolution to
quickly advance the ARB's cap-and-trade program fades and significant
delay, though not defeat , is inevitable.