Update: SF Court Affirms Tentative CEQA Ruling on AB 32

[Posted by Prof. Alan Ramo]

I have previously blogged about a tentative ruling stopping the implementation of AB 32’s cap and trade program.  San Francisco Superior Court Judge Ernest Goldsmith has now issued a final ruling affirming the tentative ruling.  The Court specifically rejected the California Air Resources Board’s (CARB) last plea that it really did look at alternatives based upon facts in the administrative record as merely a reference to generalities and matter practically inaccessible to the public.  The Court also found that CARB erred in approving and implementing the key scoping plan prior to responding to public comments on the accompanying functional equivalent environment document.  Nor did Judge Goldsmith buy the unusual argument that its scoping plan, for which it had spent considerable time and resources developing, was not legally necessary for it to adopt regulations.   The Court also made clear that the scoping plan’s implementation would be on hold until the Air Resources Board amends its environmental review document pursuant to CEQA procedures, which should require at a minimum a recirculation, notice and comment, and a public hearing before the Board.

Defenders of cap and trade like the Environmental Defense Fund quickly pleaded with the environmentalists to narrow the remedy when constructing the writ that is to be prepared for the Court’s signing to execute his order.  It seems that this is more than the \”tempest in a teapot\” apparently asserted by ARB Chair Mary Nichols in an interview with KQED and reported on their climate watch blog.  Not surprisingly, the ARB representatives said they plan to appeal.

Interestingly, the decision has opened up an interesting dispute between two esteemed UCLA environmental law professors.  Professor Ann Carlson is questioning the environmental justice wisdom of this case brought by grassroots environmental justice advocates, while Professor Sean Hecht largely defends at least the consistency of their position with their environmental justice values.  My take:  given GGU’s historical connection with environmental justice as symbolized by its Environmental Law and Justice Clinic , not surprisingly I think Prof. Hecht has the better of the argument, but follow the links and make up your own mind.  It is usually always a mistake when environmentalists downgrade process for the sake of the illusory benefits of a larger project.

However, Professor Carlson does pick up on the reference in the decision criticizing the failure to analyze carbon taxes and wonders if taxes really would benefit burdened communities.   Carbon taxes always struck me as a non-starter, for if they are high enough to reduce pollution, they would be politically unpalatable, and if they are lower, they will not reduce a whit of pollution.  Carlson dismisses command and control as too expensive, but if cap and trade is so economical, why has it not won over the business community?  The answer may be if it is effective enough to force results like command and control, the business community opposes it, and if it is illusory it is supported.  No wonder environmental justice advocates question it under AB 32.

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