Ryan R. Waterman

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By Michael G. Romey, Ryan Waterman, and Aron Potash

On March 18, 2011, a San Francisco Superior Court ruling (PDF) put the brakes on California’s implementation of its 2008 Scoping Plan, which established the State’s roadmap to achieve the greenhouse gas (GHG) emissions reduction goal expressed in the Global Warming Solutions Act of 2006 (AB 32).  Pointing to alleged substantive and procedural flaws in how the California Air Resources Board (CARB) complied with the California Environmental Quality Act (CEQA) when approving the Scoping Plan, the court enjoined CARB from any further implementation of the measures contained in the Scoping Plan until after CARB “comes into complete compliance with its obligations” under CEQA.  The decision brings into question whether CARB will be able to proceed as planned with implementing by January 2012 the cap-and-trade scheme, which is the centerpiece of the first economy-wide program in the United States to limit GHG emissions.

Since the passage of the Global Warming Solutions Act of 2006 (otherwise known as AB 32), the California Air Resources Board (ARB) has met all of the Act’s deadlines for reaching the 2020 goal of reducing California’s greenhouse gas emissions to 1990 levels.  This includes ARB’s December 2008 approval of the Scoping Plan (PDF), which established a blueprint for how ARB intends to meet the 2020 greenhouse gas reduction goal, and its December 2010 approval of cap-and-trade regulations, which would create the most comprehensive greenhouse gas program in the nation. 

A recent development in Association of Irritated Residents v. California Air Resources Board, a case challenging the Scoping Plan, has put into question the Scoping Plan’s approval, and the implementation of ARB’s cap-and-trade regulations by extension.  On January 24, 2011, a San Francisco Superior Court Judge issued a tentative decision that, if entered as the court’s final decision, would delay further implementation of the Scoping Plan.  The tentative decision concluded that ARB acted within its discretion in approving the Scoping Plan, and that its environmental analysis of the Scoping Plan under the California Environmental Quality Act (CEQA) was mostly correct.  However, the petitioners convinced the court that ARB’s analysis of alternatives to the Scoping Plan was insufficient, and that ARB acted improperly by adopting the Scoping Plan five months before it published its responses to public comments on the CEQA document.