Air board will appeal ruling on implementation of AB 32

Environmental justice advocates will tell you they never intended to shut down the state’s whole climate law, when they filed suit against it. But a broadly-worded court decision could put some or all implementation of AB 32 on hold.

The ruling, which was rendered last Friday by a state superior court in San Francisco and made public yesterday, finds that in putting together its implementation (scoping) plan, the California Air Resources Board failed to give adequate weight to potential alternatives to cap & trade.

Judge Ernest Goldsmith issued the ruling:

“…enjoining any further implementation of the measures contained in the scoping plan until after (the Air Board) has come into complete compliance with its obligations under its certified regulatory programs and CEQA (the California Environmental Quality Act).

The broad wording of that would seem at odds with the assessment of CARB chair Mary Nichols, who, in an interview on Friday, described the likely ruling to me as “a tempest in a teapot.”

Today in its official response, the Air Board wrote: “We disagree with the court’s decision and intend to appeal.”

Regulators are also downplaying the sweep of the decision, insisting it applies narrowly to the cap & trade plan. According to the Air Board’s response, issued by email on Monday:

“We believe plaintiffs did not intend to put on hold efforts to improve energy efficiency, establish clean car standards and develop low carbon fuel regulations. A broadly worded writ puts at risk a range of efforts to move California to a clean energy economy and improve the environment and public health.”

But plaintiffs’ attorney Alegria De La Cruz told Climate Watch today that the ruling means “Cap and trade must stop.” De La Cruz, legal director for the Center on Race, Poverty & the Environment, said: “The judge’s order makes that clear because ARB really needs to look at alternatives to that program before it can move forward with it’s larger plan.”

As far as the ruling that CARB didn’t do its homework on cap and trade, the Air Board statement goes on:

“Last year, as part of the cap and trade rulemaking process, we completed a robust and comprehensive examination of the alternatives to cap and trade with a 500 page environmental analysis that fully addresses the concerns the court raises. We will rely on this analysis in responding to the court’s decision.“

Meanwhile a statement from the Environmental Defense Fund, an ardent supporter of cap & trade, said the organization “expects that the parties will work to narrow the remedy so that CARB can proceed with some or most of the work to implement AB 32 while a new analysis is finalized and approved by the Court.”

The cap & trade program represents about 20% of the total emissions reductions called for under AB 32.