Judge's Ruling Could Force Air Resources Board to Look at Alternatives to Cap and Trade

Here’s an irony: After last year’s bruising battle to save California’s comprehensive anti-global warming law from being suspended by an oil industry-backed initiative, it’s a lawsuit by environmental groups that could end up throwing a monkeywrench into the state’s plans.

Yesterday we wrote that KQED’s Climate Watch had picked up on a post on the Legal Planet blog flagging a California superior court judge’s tentative decision barring the state from implementing AB 32, which seeks to reduce greenhouse gas emissions to 1990 levels.

The ruling, if finalized, would decree that the state’s Air Resources Board comply with the California Environmental Quality Act in considering alternatives to the cap-and-trade approach it settled on.

Today’s Chronicle sheds further light on the tentative decision:

Superior Court Judge Ernest Goldsmith ruled that the air board approved the larger plan to implement AB32 prior to completing the required environmental review, and that the board failed to adequately consider alternatives to cap and trade. The Air Resources Board “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,” Goldsmith found, adding that the air board’s “analysis provides no evidence to support its chosen approach.”

…”There’s a way to both be supportive of AB32 implementation but to be responsible in that support and ethical in that support, and we ask the same of the board,” said Alegría De La Cruz, legal director for (plaintiff) the Center on Race, Poverty and the Environment.

Environmental advocates have for months raised concerns about whether the air board was adequately addressing the impacts of implementing AB32 on disadvantaged communities. Full article

Craig Miller also addressed the decision on The California Report this morning. Miller summarized the cap and trade system and the concerns of environmental justice groups to it.

Here’s a section from the web site of the Center on Race, Poverty, & the Environment, a plaintiff in the case, sharply criticizing the lack of protection for certain disadvantaged communities afforded in the cap-and-trade system.

After supporting the passage of AB 32, which included strong language to protect low-income communities and communities of color, the California Air Resources Board outraged environmental justice activists and community groups when the Board chose to adopt a scoping plan that failed to ensure that such protections would be honored and that failed to achieve the maximum technologically feasible and cost effective reductions of greenhouse gases. CRPE community organizers and attorneys worked hand in hand to prepare San Joaquin Valley residents to participate in the Air Resources Board’s hearing process, and hired buses to transport residents to Sacramento.

ARB ignored Valley residents’ during the public comment process and then threw them under the bus in favor of the industry-preferred approach of using a market-based “Cap and Trade” program. Cap and Trade allows a major emitter of greenhouse gases to buy “reductions” from someone else and not reduce their own pollution, which would deprive nearby residents from the benefits of toxic, smog, and particulate matter pollution reductions that would accompany the carbon dioxide reductions. Environmental justice communities burdened by huge industrial concentrations of pollution would likely see no benefits when major polluters buy their way out instead of lowering their pollution.

On June 10, 2009, the residents and groups sued ARB in order to ensure that AB 32’s implementation was consistent with its letter and spirit. CRPE and Communities for a Better Environment represent the petitioners.

The group’s Alegria DeLaCruz, a lawyer on the case, told AP that the lawsuit’s intention is not to halt AB 32, but to force the state to consider alternatives to cap and trade.

“By no means is it a victory to halt implementation of a law meant to improve public health,” DeLaCruz said. “It’s about how to do this best that is really at the heart of this.”

…The cap-and-trade system works by allowing a company that produces pollution, such as a utility or a refinery, to buy a permit from the state giving it permission to send a specified amount of carbon dioxide and other greenhouse gases into the air each year.

DeLaCruz said alternatives, like banning certain high-risk air pollutants in some neighborhoods, should also be considered.

Next Tuesday is the deadline for both parties to comment on the decision. The judge then has several weeks to finalize the ruling.

Keep in mind that this development doesn’t mean that cap and trade is dead. The ruling comes from a lower court and will certainly be appealed. UCLA law professor Ann Carlson wrote in Legal Planet yesterday that “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.”