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Court Ruling Could Mean Delay for AB 32 Implementation

| February 3, 2011
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Craig Miller of KQED has a provocative post up on Climate Watch titled Is AB 32 Headed for the Rocks?

The post points to Legal Planet, an environmental law and policy blog, where Cara Horowitz, Executive Director of the UCLA Emmett Center on Climate Change and the Environment, wrote this:

A California superior court has issued a proposed decision, not yet final, holding that (the Air Resources Board) failed to comply with the California Environmental Quality Act (CEQA) in its adoption of the Scoping Plan that is guiding its implementation of AB 32, California’s landmark climate change law.

The ruling proposes to set aside ARB’s CEQA documentation and to enjoin “any implementation of the Scoping Plan” until ARB corrects the CEQA violation. Among other things, such a ruling would presumably affect the roll-out of California’s first-in-the-nation carbon cap and trade program, which is slated to take effect in January 2012.

Though the tentative ruling was signed on Jan. 21 and served on parties last week, not much has been written about it. Under California Rule of Court 3.1590(g), the parties appear to have 15 days from service to lodge objections to the proposed ruling. The ruling comes in a case brought by community groups, environmental justice organizations, and individuals opposed to ARB’s scoping plan and, in particular, to the cap and trade program. Among the plaintiffs are members of the Environmental Justice Advisory Committee, which advised ARB on the creation of the Scoping Plan and made its objections to the plan plain from the start. Full post


Note this follow-up post by Ann Carlson, another UCLA environmental law professor, which minimizes the impact of the ruling:

The CEQA portion of the ruling — should the judge stick with it when he finalizes his decision — is a setback for efforts to implement California’s law. But I think it’s worth emphasizing that it’s only a temporary setback and one that may not even have the effect of delaying the air board’s climate change plan. Here’s why:

First, if the judge’s decision is finalized, CARB will very likely appeal and will very likely seek (and may well win) a stay of the injunction preventing the Scoping Plan (which sets forth how CARB will implement AB 32) from going into effect;

Second, if CARB succeeds in getting the injunction stayed, it can work during the lengthy appellate process to fix the violations of CEQA so that even if CARB loses on appeal it loses no implementation time. The violations are largely about conducting a more thorough analysis of alternatives to the Scoping Plan…

So the tentative ruling, should it become permanent, will create some bumps in the road toward AB 32 implementation but I predict that the bumps will be only small ones.

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Category: Environment, Law and Justice

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