Posted by: Steven M. Taber | February 6, 2011

AB32 Must Undergo More CEQA Review Judge Rules

With climate change legislation held up in U.S. Congress, the eyes of the nation have focused on the states, particularly on California, which passed a landmark climate change law, the Global Warming Solutions Act of 2006, known as AB32.  Former Governor Schwarzenegger called the law one of his greatest achievement of his administration. However, in a tentative ruling issued last month, San Francisco Superior Court Judge Ernest Goldsmith ruled that state air quality regulators must conduct further analysis before fully implementing AB32.

The lawsuit, brought by The Center on Race, Poverty and the Environment alleged that the California Air Resources Board (CARB) had violated state environmental law by failing to properly study alternatives to plans it has adopted.  Judge Goldsmith’s opinion states that the CARB approved the larger plan to implement AB32 prior to completing the required environmental review under the California Environmental Quality Act (CEQA).

Goldsmith found that CARB “seeks to create a fait accompli by premature establishment of a cap-and-trade program before alternative [sic] can be exposed to public comment and properly evaluated by the ARB itself.”

Although the decision, should Judge Goldsmith make it his final ruling, will delay implementation of AB32, the lawsuit was brought not by those opposed to AB32, but by parties who support AB32.  Indeed, the plaintiffs have backed AB32 and have helped defend it against Proposition 23, last November.

While many right-wing, anti-environment pundits have proclaimed this ruling as a victory for climate deniers (see e.g., this blog post), a careful reading of the opinion indicates that this provides a opening for a much broader reading of AB32.  Cap-and-trade, as has been pointed out in this blog previously, was a compromise developed to bring market mechanisms to acid rain regulations.  It was meant to replace “command and control” regulations.  Here, the plaintiffs may seek to move away from cap-and-trade and other market based mechanisms and back to a more command-and-control type system.

In any case, should the ruling become permanent, it will be interesting to see what the CARB does:  will it appeal?  Will it seek a stay so that it can proceed with implementation pending appeal? Or will it simply throw in the towel and go back to the CEQA drawing board?

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