California Supreme Says Stay: Cap and Trade Work Allowed to Continue Pending Appeal

Last week, the California Supreme Court ruled to allow the California Air Resources Board (CARB) to continue to work on the cap and trade regulations contained within AB32’s Scoping Plan.

We have brought you the blow-by-blow action in this case, and as we blogged, CARB’s implementation of the Scoping Plan was temporarily halted earlier in the year when the San Francisco County Superior Court ordered CARB to set aside its approval of the plan as it relates to cap-and-trade and complete a more thorough review of alternatives to the plan’s proposed reduction measures. CARB appealed the Superior Court’s substantive decision as well as the injunction halting CARB’s work on the Scoping Plan during the appeal. The Appellate Court granted CARB’s petition for a writ of supersedeas, staying the Superior Court’s Writ of Mandate and allowing CARB to move forward with its cap-and-trade rulemaking while the appeal proceeds. This is the decision that the Supreme Court affirmed last Wednesday.

A spokesperson for CARB stated that the decision “allows us to continue to address the broadest range of approaches to reduce greenhouse gases as required under AB32.”

As you can imagine, this is not the end of the story by any means. Not only is the substantive portion of the appeal still pending, but even if the Appellate Court overturns the Superior Court’s CEQA findings, experts are predicting that there will be a facial challenge to the actual cap and trade rules once they are finalized and adopted.