Judge: California's greenhouse gas law requires more review before implementation

Judge: More review needed to finalize AB32

Thursday, February 3, 2011 (AP)

State air quality regulators must conduct further analysis before fully implementing California's landmark 2006 climate law, a trial court judge has said.

In a tentative ruling last month, San Francisco Superior Court Judge Ernest Goldsmith said the California Air Resources Board violated state environmental law by failing to properly study alternatives to plans it has adopted.

A final ruling could come Tuesday, when the air board's response is due, and if it's upheld, it could delay implementation of the nation's most aggressive climate change laws.

Goldsmith said the air board cannot certify a document known as the "scoping plan" for AB 32 — which seeks to reduce the state's greenhouse gas emissions to 1990 levels by 2020 — until it completes more analysis on its cap-and-trade and other plans.

"(The board) has interpreted its regulation in a way that undermines the California Environmental Quality Act's goal of informed decision making," the judge wrote.

The plaintiffs' lawyer, Alegria DeLaCruz of The Center on Race, Poverty and the Environment, said she hopes the judge's final ruling will force the state to consider all options before moving forward. She said the suit is not meant to stop AB 32's rollout, just make it better.

"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."

For example, DeLaCruz argued that the board, in passing its so-called cap-and-trade system in December, should have looked at more alternatives to reducing the harmful pollutants.

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.

The judge tentatively ruled that because the board "did not include any facts or data to support the conclusions stated in its alternatives analysis, it abused its discretion."

Stanley Young, a spokesman for the air board, said it is reviewing the decision "and will respond within the allotted time."

Some legal analysts said if the judge does not change his ruling, it's only a temporary setback for the new law. The board could still appeal, and it could also seek a stay that would allow it to keep working on implementing the law while the legal battle continues.

"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," wrote Ann Carlson, a professor of environmental law at UCLA, in a post on her blog.