Court approves California Air Resources Board’s Climate Change Scoping Plan

Association of Irritated Residents v. California Air Resources Board

June 19, 2012

No. A132165 (1st Dist., Div. 3)

Association of Irritated Residents (AIR) sued California Air Resources Board (CARB), claiming the Climate Change Scoping Plan to implement AB32, the California Global Warming Solutions Act of 2006, did not comply with AB32.

AB32 requires CARB to develop a plan to identify and recommend recommendations on direct emission reduction measures, alternative compliance measures, market-based compliance measures, and economic and noneconomic incentives to help achieve the maximum feasible and cost-effective reductions of greenhouse gas emissions to 1990 levels by 2020 and another 80% reduction by 2050.

The trial court approved CARB’s plan, and the Court of Appeal affirmed. The Court of Appeal took a required deferential view of “quasi-legislative rules” which have the “dignity of statutes. Such deference allows a rule to be overturned only if arbitrary and capricious.

Going one by one through AIR’s complaints, AIR complained that CARB’s rulemaking did not reduce emissions to the maximum technologically feasible by 2020, but, rather, created a ceiling. The Court concluded the Legislature did not require CARB to impose greater emissions reductions than scheduled under the Act simply because that might be technologically feasible.

Second, the Court found the record supported CARB’s contention that it considered alternative measures such as emissions limits or a carbon tax. The record showed CARB thought cap and trade in the industrial sector would achieve better results by such market mechanism than by direct measures. Moreover, cap and trade accounted for less than half of the measures being implemented by CARB. CARB also felt cap and trade complemented “technology-forcing” performance standards.

The Court also focused on the definition of “cost-effectiveness” in Health & Safety Code section 38505. That section expressed the metric by which to express effectiveness (cost per unit of reduced greenhouse gas emissions) but did not express the criteria by which CARB should assess the effectiveness. Finally, the Court was satisfied with CARB’s consideration of possible costs of cap and trade ($55 per ton to a net savings of $408 per ton) and their claimed inability to compare cap and trade with direct regulation due to the absence of adequate research comparing such programs.

The Court also found CARB’s decision to make agricultural emissions reduction voluntary rather than mandatory (such as with manure digesters), due to uncertainties in the science of the complex biological processes of agro ecosystems, to pass muster as well. Finally, the Court found CARB did consider the impacts of various programs on people living closest to emission sources.

In the Court’s opinion, these various factors satisfied CARB’s obligation under the Act to consider alternatives and to select a mechanism that was both feasible and cost-effective. Therefore, CARB’s selection of cap and trade was supported by the evidence and not arbitrary or capricious.

Prepared by John Reaves

 

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