On March 18, 2011, California Superior Court Judge Ernest Goldsmith issued a final statement of decision against the California Air Resources Board (“CARB”) that halted further implementation of greenhouse gas (“GHG”) regulations under Global Warming Solutions Act of 2006 (“AB 32”), until another “scoping plan” is completed.  A scoping plan will assess alternatives to the current AB 32, and will give an overall regulatory analysis of AB 32.

AB 32 adopts a 33 percent renewable standard for California, and it requires the state to decrease emissions to 1990 levels by the year 2020 (see October 1, 2010 edition of the WER).  On June 10, 2009, in the case of Association of Irritated Residents, et al, v. CARB, several environmental groups and individuals brought suit stating that CARB did not comply with the statutory requirements of AB 32 and the California Environmental Quality Act (“CEQA”).  The petitioners argued heavily against the proposed scoping plan, taking particular issue with the adoption of cap-and-trade and providing exemptions to certain agricultural and industrial sectors.  The petitioners sought a writ of mandamus to prohibit implementing the scoping plan. 

In January 2011, Judge Goldsmith issued a tentative statement of decision that rejected the claims that CARB did not comply with AB 32; however, the judge did agree that CARB violated CEQA by approving a scoping plan in 2008 and beginning implementation without considering any alternatives with regard to the environmental analysis.  Although CARB receives certain CEQA exemptions, CARB must still finalize a Functional Equivalent Document (“FED”) which analyzes alternatives that may have less impact on the environment.  Prior to finalizing a FED, CARB must allow for public comment and response before approving a project.  The court found CARB approved the project before allowing for public comment and response, and the approved scoping plan did not adequately consider alternatives with less impact on the environment.

In the final statement of decision, Judge Goldsmith enjoined implementation of the scoping plan until he determines CARB has complied with CEQA requirements.  Since CARB did not comply with CEQA procedurally, it is now necessary for CARB to perform a thorough analysis of alternatives.  This may complicate the January 1, 2012 deadline AB 32 imposes for implementing effective regulations.

A copy of the full court decision is available here.