Air-vs-ARB: California's AB32 Hits a Snag

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Judge Ernest Goldsmith, California Superior Court in San Francisco, stung the California air Resources Board (ARB) in February with a tentative ruling that AB32 implementation failed to meet the procedural requirements of the California Environmental Quality Act because it failed to consider alternatives before acting.  In a final ruling March 21, 2011, Judge Goldsmith affirmed his ruling in a final order and blocked the implementation of AB32 until ARB gets its procedural problems fixed.

There is plenty of irony in this ruling by a San Francisco judge applying the same environmental procedural rules used to stop scores of projects to a cause dear to the hearts of the environmental community against the law they most want implemented.  The judge noted in his 37 page ruling that ARB devoted only two paragraphs in its 500 page scoping plan analysis to consideration of a carbon tax as an alternative to cap and trade.

The other irony is that the suit was filed in 2009 by a group called the Association of Irritated Residents (AIR) and other groups that believe AB32 does not go far enough to reduce greenhouse gas emissions and other toxics from the environment.  One plaintiff, Communities for a Better Environment, argued that ARB failed to consider that its proposed cap and trade rules might actually increase pollution in low income, mostly minority communities often found near refineries and power plants or other industrial sources of emissions.   The plaintiffs wanted ARB to consider and adopt more stringent and targeted measures to reduce that risk such as specific taxes on emissions from all sources or setting realistic caps on emissions appropriate to each situation.

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The principle upheld by Judge Goldsmith is that ARB merely went through the motions in developing an implementation plan for AB32 rationalizing after the fact the political decision made in adopting the law instead of realistically considering alternatives to its key cap and trade provisions.  The plaintiffs argued that ARB should have considered a much wider range of implementation options that, in their view, had the potential to be much more effective in living into the legislative intent of AB32.

Judge Goldsmith’s ruling does not throw out the law but remands it to the Air Resources Board with the admonition to following the CEQA procedural rules before you move forward with implementation.

“Now the ARB has a chance to do it right and consider real alternatives to pollution trading,” —Bill Gallegos, Executive Director, Communities for a Better Environment.