Wait-and-See Instead of Cap-and-Trade: Judge puts California’s plans to implement greenhouse gas bill on hold

In a somewhat ironic twist, a San Francisco Superior Court judge has tentatively ruled that the CARB (the California Air Resources Board) violated CEQA (the California Environmental Quality Act) (I know, I know, the acronyms never end!) by adopting certain plans for the implementation of California’s landmark Global Warming Solutions Act of 2006 (better known as AB32), including its adoption of cap-and-trade regulations last year. I know what you’re thinking – “Wait, the implementation of one environmental law has been put on hold by a ruling based on another environmental statute??” Yes, folks. I told you it was ironic.

Let me try to break this down. California passed sweeping global warming reduction legislation in 2006: AB32. It’s implementation would reduce carbon emissions to 1990 levels by the year 2020. In order to make this happen, CARB (the agency in charge of achieving AB32’s lofty goals) did, among other items, two things: (i) in 2008, adopted a comprehensive plan to reduce GHGs (greenhouse gases – yes, another acronym) known as the scoping plan, and (ii) last year, approved cap-and-trade regulations to help the state meet its target.

The court took issue with these actions, saying that they constituted violations of CEQA. CEQA requires “state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.” In this case, the court has preliminarily ruled that CARB failed to examine alternatives to and impacts of its actions and adequately support them with the “informed decision-making” that CEQA requires.

The parties that challenged these CARB actions were not who you would think – rather, these challenges were brought by environmental groups troubled by potential ill-effects to low-income communities, led by the Center on Race, Poverty and the Environment.

It is unclear what impact this ruling will have if it becomes final, but, at the very least, it will cause a temporary delay to CARB and those in industry working to implement AB32.