Update #2 on San Francisco CEQA/AB 32 Case: Final Judgment Sheds More Light on Ruling’s Impact

We have brought you blog posts about the San Francisco Superior Court case brought by environmental justice groups challenging the California Air Resources Board’s (CARB) environmental analysis of AB 32. As we reported in March, Judge Goldsmith’s final ruling stated that CARB violated CEQA (the California Environmental Quality Act) by failing to adequately consider certain alternatives to the cap-and-trade system CARB was set to implement. However, last Friday, Goldsmith’s judgment was filed with the court and it clarified and narrowed his final ruling.

The judgment made clear that AB 32’s Scoping Plan is set aside only “as it relates to cap and trade” and that ARB is enjoined from “engaging in any cap and trade-related Project activity.” Having received some criticism for its lawsuit from other environmental groups, plaintiffs submitted two alternative judgments for Judge Goldsmith to chose from. As revealed in their press release, “[t]he first option, which most closely tracks the Court’s language” would have enjoined implementation of all of the measures in the Scoping Plan. The second alternative, however, and the one ultimately signed by Goldsmith, is much narrower and reflects the plaintiffs’ belief that “some of the implementation measures provide important benefits to our community and all of California.” Unscathed items in the Scoping Plan include those related to dairies, fuel standards for cars and trucks, landfills and the oil and gas industry.

The only question mark the judgment presents, in this blogger’s mind, is the following: although the judgment is specific about its narrow effect on the Scoping Plan itself, it sets aside the CEQA documentation that covered the entire Scoping Plan (the “Functional Equivalent Document” – the equivalent of an EIR for state regulatory programs) without any limitation as to the cap and trade program. This may muddy the waters… or perhaps this is just the court’s (and plaintiff’s) way of reminding CARB that they cannot simply add alternatives to the flawed document and call it a day. In essence, the analysis must be redone and a conclusion (even if the same one as before) drawn from the entirety of the new information.

At the end of the day, its seems that much of California’s crown environmental legislation jewel will continue to shine just as brightly. CARB, as promised, has filed an appeal. To be continued…