Appellate Court Upholds Cal. Climate Change Plan

I have previously blogged about the ongoing battle between environmental justice activists and the California Air Resources Board (“CARB”) over CARB’s adoption of its scoping plan for its AB 32 program to reduce global warming emissions.  I focused upon the issues under the California Environmental Quality Act, basically CARB’s initial failure to thoroughly consider alternatives and its leap to judgment before considering its response to comments.  A San Francisco Superior Court judge issued a writ to correct those errrors, CARB complied and the issues were resolved.

However, there remained the same Judge’s determination that the objections to the merits of the plan failed.  That decision was appealed by the plaintiffs in Association of Irritated Residents et al. v. California Air Resources Board et al.,  A132165, 1st District, Division 3.

Today the Appellate Court upheld the trial court’s determination and dismissed the case.  In a 22 page decision, the Court found that the Board faithfully carried out the statute’s mandates and that under the arbitrary and capricious standard there was sufficient evidence for its choices and strategies:

“We are satisfied that the record provides ample support for the recommendations on which the Board settled, and that its choices were thoughtfully considered, well within the scope of the Legislature‘s directive, and not arbitrary or capricious.”  Decision at 17.

The Court specifically rejected the claims that CARB had not adopted sufficient maximum technologically feasible measures that were cost-effective.  It was plainly impressed with the extent of the record and input CARB received and considered:  “The record reflects that the Board went to exceptional lengths to obtain informed and scholarly input on the complex scientific and economic issues that bear on these critical qualifications.”  Decision at 11.

The decision is a classic example of a court deferring to the expertise of an agency in a technically complex and uncertain area.  “It is not for the court to reweigh the conflicting views and opinions that were expressed on these complex issues, which in the end are largely matters of judgment in all events.”  Decision at 17.  The Court quotes several comments discussing the uncertainty of available information.

The Court also noted with approval CARB’s consideration of the “Wilmington” case study to evaluate potential environmental justice issues relating to the Plan:

“However, Wilmington, the community chosen to assess local air quality impacts, the plan points out, ―includes a diverse range of stationary and mobile emission sources, including the ports of Los Angeles and Long Beach, railyards, major transportation corridors, refineries, power plants, and other industrial and commercial operations.”

Given the complexity and novelty of a comprehensive climate change regulatory regime, the petitioners in this case had quite a challenge getting a court to second guess CARB, given its reputation and long years of expertise in air pollution issues.  It is difficult to imagine they could get the California Supreme Court to reverse a 3-0 vote.  This blog will continue to follow developments.

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