A San Francisco superior court has issued a tentative ruling that will prevent the California Air Resources Board (CARB) from implementing its greenhouse gas (GHG) regulatory program under A.B. 32 until the agency complies with the California Environmental Quality Act (CEQA). Ass’n of Irritated Residents v. Cal. Air Resources Bd., No. CPF-09-509562 (Cal. Super. Ct. 1/24/11).
A.B. 32 requires CARB to prepare and approve a climate change scoping plan that will create a regulatory path for reducing GHG emissions to 1990 levels by 2020 and include enforcement provisions. Petitioners argued that the scoping plan fails to comply with the substantive mandates of A.B. 32, the Global Solutions Act of 2006 and CEQA’s impact review and procedural requirements. The court rejected petitioners’ claims under A.B. 32 “given [C]ARB’s quasilegislative authority and the wide latitude afforded the agency under the arbitrary and capricious standard of review.”
The court did find, however, that CARB (i) failed to provide a sufficient factual explanation justifying its adoption of the scoping plan over other alternative plans, including an alternative that would rely on a carbon fee to reduce emissions under CEQA’s implementing regulations; and (ii) improperly approved the scoping plan in 2008 before completing the environmental review required by CEQA. Both must be included in CARB’s “functional equivalent” document (FED) to an environmental impact report. The court rejected petitioners’ argument that the FED’s impact analysis was too generalized and relied on previous CEQA cases upholding a generalized analysis as sufficient.
The court issued a tentative peremptory writ of mandate to enjoin CARB from any further implementation of the scoping plan until CEQA requirements have been satisfied. As this is a tentative decision only, the parties have 15 days from the date of issuance to file any objections. The court’s peremptory writ of mandate will likely, however, slow the A.B. 32 scoping plan’s implementation.