Update on AB 32 case: Judge issues narrow writ

[Posted by Professor Alan Ramo]

UPDATE:  ORDER TEMPORARILY STAYED PENDING FURTHER BRIEFING ON STAY.

San Francisco Superior Court Judge Ernest Goldsmith on Friday, May 20, 2011, issued the final judgment in the controversial case involving California’s global warming legislation, AB 32.  In Associated of Irritated Residents versus California Air Resources Board, the plaintiffs successfully argued that CARB failed to adequately analyze alternatives to its Cap-And-Trade strategy, and it jumped the gun by approving the plan before the staff completed their responses to comments on their environmental analysis under the California Environmental Quality Act.

In spite of fears that this would irrevocably damage the country’s premier climate change program and undermine the California model, it appears that the plaintiffs, who taken a bit of heat from mainstream environmental organizations, were quite responsible in shaping their requested relief.  The judgment narrowly applies only to the Cap-And-Trade strategy itself, leaving intact more than 60 measures that compose the climate change plan.  These measures include requirements for automobiles and trucks, boats and ships, landfills, oil and gas production, dairies, goods movement and others.

Even with Cap-And-Trade on temporary hiatus, much of the program was going to phase in during stages, with a second category not beginning until 2015.  The electricity sector is delayed, but at the same time, it is subject to the renewable energy standard already driving renewables and better technology in that area.

So it seems on balance that a small price has been paid to vindicate the role of public participation in our environmental decision-making.  While CARB has filed an appeal over the legal issues, its better alternative is to bite the bullet, do the analysis and take a more careful look at its Cap-And-Trade approach.  If CARB really wanted to ameliorate the concerns expressed by environmental justice advocates, perhaps it should take a new look at its decision rejecting the auctioning of credits and create an environmental justice fund to assure reductions occur in those communities most affected by co-pollutants in facilities emitting greenhouse gases.  A more aggressive cumulative toxics analysis leading to regulations targeting those communities already overburdened with toxics would also help.

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