Litigants can’t come to terms on letting part of the law proceed

Prospects for full implementation of California’s 2006 climate change law turned a darker shade of gray this week. Environmental justice groups walked away from negotiations with state officials. The talks were intended to allow certain portions of the plan to move forward even as the carbon trading program remained tied up in litigation.

That means implementation of AB 32 is effectively at a standstill.

“At this point my clients consider negotiations over,” said Brent Newell, a lead attorney in the case representing a dozen environmental justice groups and individuals.

Newell declined to explain the points of contention with the California Air Resources Board (CARB) during negotiations, which ended on March 30, citing legal confidentiality.

The environmental justice groups won a court ruling against the board in mid-March, seeking to halt cap-and-trade because of concerns the market-based system would harm the public health of communities living near industrial polluters. A California Superior Court judge ruled that CARB had violated state environmental law by not adequately considering alternatives to cap-and-trade, and suspended all the other 68 regulations that implement AB 32 until the board complies.

The negotiations might have created room for some aspects of the far-reaching plan to move forward, such as the renewable energy and clean vehicle provisions. The environmental justice groups have repeatedly stressed that they support major aspects of the climate change law and don’t want to see it fail. But their latest move may derail, or at least delay, the nation’s first major test case in climate change policy, a plan that has spurred a big growth in green industry in California.

Newell blamed the fallout in negotiations on state regulators. “Unfortunately, the ARB, through its own choices, is driving AB 32 off a cliff,” he said.

CARB Spokesman Stanley Young offered little clarity on the issue. In an email, he said:

“We take the court’s decision seriously. We have already indicated that we intend to more fully consider alternatives to cap-and-trade regulation … before the program goes into effect.”

Young said the Air Board still plans to appeal the order by a state superior court judge. He did not say whether the board will also file objections to the writ of mandate that environmental justice groups must submit to the judge outlining how they believe CARB must comply. The judge can decide whether to make changes based on the state’s objections, Newell said.

The appeals court could also stay the judge’s order, meaning implementation of AB 32 could proceed. In any case, it seems certain that the fate of California’s climate change law is, for the foreseeable future, in the hands of lawyers and judges.