Can the Air Resources Board continue to implement measures to reduce greenhouse gases?
One interesting feature of the court decision preventing the state from moving forward with AB 32 is that the court’s decision seems to halt implementation of the entire scoping plan. As I’ll explain, this is an odd result, and one that may be legally required but doesn’t make practical sense.
The legal flaw the court found in the scoping plan – and the part of the plan the frustrates the environmental justice organizations that filed the lawsuit – is that the Air Resources Board didn’t properly consider alternatives to the cap-and-trade component of the scoping plan. The court relied on this rationale in striking down the ARB’s decision to adopt the plan.
But contrary to many people’s understanding of AB 32, only a small portion, something like 20%, of the projected reductions from the scoping plan will come from the cap-and-trade program. The rest of the reductions are from measures that the plaintiffs in this case aren’t likely to object to. The court, however, saw its role as either accepting or rejecting the agency’s action, and not picking and choosing specific pieces of that action for rejection while leaving others intact.
What does this mean for AB 32’s future?
I imagine that the plaintiffs in the lawsuit share the Air Resources Board’s interest in continuing with the other AB 32 measures. They surely couldn’t intend to shut down the entire program, many features of which reduce greenhouse gases and also offer co-benefits in the form of reduction of other sources of pollution. At the same time, the court’s order invalidates the whole scoping plan, and with it, any regulations that depend on that plan.
Some of the measures in the scoping plan have already been implemented through other legal mandates (for example, the Pavley motor vehicle emission law), and this injunction shouldn’t touch them. But the injunction could potentially cover many other non-cap-and-trade measures under the plan, such as limiting the GHG potential of refrigerants.
The court hasn’t yet issued its Writ of Mandate (the actual document that will tell the Air Resources Board what it has to do to comply). Typically, the parties offer language to the court for the writ. Moreover, news reports have indicated that the Air Resources Board is acutely aware of this problem: The Los Angeles Times reported that “the board’s attorneys will meet with plaintiffs about complying with the order without halting all aspects of its global warming plan.” Perhaps they will work this out without halting the aspects of the plan that everyone (well, everyone who wants to reduce greenhouse gas emissions) can agree upon.
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About Sean
Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, Evan Frankel Professor of Policy and Practice, and Co-Director o…
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Just a couple minor questions posed out of curiosity (and having not read the briefs):
So do you think the court reached the correct outcome in terms of severance/scope of relief? After reading your post (but before reading the decision) my initial impression was that severance seemed appropriate. I take it your principal point is that as a normative matter, irrespective of 21168.9, severance makes sense but that the court may have reached the correct legal outcome. Having read the decision, I’m not entirely sure. I understand why the “foreclosing alternatives” had so much traction, but then again there’s no mention of Laurel Heights II which expressly permitted ongoing activities to continue despite an inadequate alternatives analysis and bears other similarities as well.
And is it the case (the decision is not entirely clear) that ARB actually did begin implementing portions of the Scoping Plan prior to its formal action on the FED in mid-2009? That portion of the decision struck me as potentially at odds with California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227 at 288, but I am not remotely familiar enough with either the facts or ARB’s internal procedures to say.
Frank, that’s a good question or two.
As I’m sure you know, here’s what Public Resources Code section 21168.9(b) says:
Any order pursuant to subdivision (a) shall include only those
mandates which are necessary to achieve compliance with this
division and only those specific project activities in noncompliance
with this division. The order shall be made by the issuance of a
peremptory writ of mandate specifying what action by the public
agency is necessary to comply with this division. However, the order
shall be limited to that portion of a determination, finding, or
decision or the specific project activity or activities found to be
in noncompliance only if a court finds that (1) the portion or
specific project activity or activities are severable, (2) severance
will not prejudice complete and full compliance with this division,
and (3) the court has not found the remainder of the project to be in
noncompliance with this division. The trial court shall retain
jurisdiction over the public agency’s proceedings by way of a return
to the peremptory writ until the court has determined that the public
agency has complied with this division.
I haven’t been following any briefing on severance (which I have to think should be called “severability,” by the way), so I don’t know whether anyone has requested any of the findings required. I don’t believe the court has made any of those findings. (The Court did specifically hold that the issuing of regulations implementing the Scoping Plan’s provisions wasn’t severable from the Scoping Plan.) But also, yes, I think there’s reason as a matter of policy to support going forward with the non-cap-and-trade measures.
And I also don’t know offhand the answer to your other question, about the timing of the ARB’s implementation. The court certainly didn’t rely on any premature implementation of specific measures of the Scoping Plan. What the court said is that the adoption of the ARB’s resolution 08-47, prior to responding to public comments under its CEQA-equivalent “certified regulatory program” obligations, was premature and violated CEQA.
Thanks Sean. Clearly my (hastily drafted) questions are coming from a practitioner’s point of view, and I appreciate your taking the time to respond. My sense is that it could have gone either way on the 21168.9 issue and I’m sufficiently curious at this point to try and find the briefs on westlaw or elsewhere. If argued effectively (and hopefully in front of a pragmatic judge), 21168.9 can be a lifesaver in cases where an EIR is found deficient in some narrow regard and further review is warranted. I’ll post a quick squib if I find anything interesting in the briefing.