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Association of Irritated Residents v. California Air Resources Board
Summary and Status Update
California Cap and Trade WorkshopClimate Action ReserveHouston, TX
Jean-Philippe Brisson, Senior CounselHead, Environment and Climate Change PracticeLinklaters LLP [email protected]
June 14, 2011
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Legal Notice
The contents of this presentation are for general informational purposes only and do not claim to be comprehensive or provide legal or other advice. This presentation is not intended to create, and does not create, an attorney-client relationship between you and Linklaters, and you should not act or rely on any information in this presentation. Linklaters accepts no responsibility for loss which may arise from accessing or reliance on information contained in this presentation.
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AIR v. CARB: Why is it Relevant?
1. Will the courts preempt entry into force of cap-and-trade?
No, not under this lawsuit
2. Will the start of cap-and-trade program be delayed?
Possible, but unlikely
Issue is whether stay will remain in effect while CARB fixes the FED
3. Will the lawsuit be a drain on limited CARB resources?
Yes, but to what extent?
Paragraph 9, Edith Chang’s Declaration
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California Environmental Quality Act (“CEQA”)
Purpose: requires government agencies to consider environmental consequences before approving plans and policies or committing to a course of action on a project
Procedural Requirement: agencies must identify environmental effects, mitigation measures and alternatives to the proposed project in an Environmental Impact Report (“EIR”)
Certified Regulatory Program
> Certain agencies, such as the California Air Resources Board (“CARB”), are “Certified Regulatory Programs” and file functionally equivalent documents (“FEDs”) instead
“Tiering”: allows agencies to conduct EIRs or FEDs in two steps
> Program EIR/FED is prepared for a series of actions that may be considered one large project
> Project EIR/FED examines the impact of a specific development project and may incorporate by reference earlier EIRs or FEDs
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Global Warming Solutions Act of 2006 (“AB 32”)
AB32 Adopted and signed into law in 2006
> Sets 2020 reduction goal into law
> Directs CARB to prepare a scoping plan (the “Scoping Plan”) to identify how best to achieve the 2020 limit
Scoping Plan
> Approved December 12, 2008
> CARB conducted a first-tier, program FED for the Scoping Plan
> Appendix J of the Scoping Plan: 119-page program FED
> Program FED assessed a number of options, including no source-specific regulatory requirements without cap-and-trade component, carbon fee, no action, a variation of the proposed measures in the Scoping Plan
Cap-and-Trade Draft Regulations
> Approved December 16, 2010
> Appendix O contains the project FED
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California Climate Programs
AB 32
Low Carbon Fuel Standard
ScopingPlan
Direct Regulations
Cap & TradeRegulations
Program FED
ProjectFED
AB 32
Low Carbon Fuel Standard
ScopingPlan
Direct Regulations
Cap & TradeRegulations
Program FED
ProjectFED
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AIR v. CARB: Parties, Action and Posture
Petitioners: a collection of concerned citizens and nonprofit organizations
Respondents: CARB, the Chairman of CARB, and members of CARB
Nature of Action: Petition for Writ of Mandate, filed June 10, 2009
Court: Superior Court of California, County of San Francisco, Judge Goldsmith
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Timeline of Events
June 10th, 2009
January 24th, 2011
March 18th, 2011
May 20th, 2011 June 1st, 2011
Initial Filing of Petition
Interim Decision
Final Decision Judgment and Writ
CARB files appeal
June 3, 2011 Court of Appeal issues temporary stay
June 13, 2011 CARB publishes amended FED
June 20, 2011 AIR needs to file its response
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AIR v. CARB: Arguments
AIR makes arguments in two general categories
1. CARB improperly interpreted and failed to comply with AB 32
2. CARB violated CEQA and its Certified Regulatory Program because of inadequate FED
CARB argues that it complied with AB 32 and CEQA, and that AIR disagrees with its policy decisions
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AIR v. CARB: Court Decision
1. CARB did not improperly interpret or fail to comply with AB 32
2. CARB did violate CEQA because it
> failed to adequately analyze alternatives to cap-and-trade in the program FED (e.g., no source-specific regulatory requirements without cap-and-trade component, carbon fee, no action, a variation of the proposed measures)
> improperly approved the Scoping Plan prior to FED completion
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AIR v. CARB: Judgment and Writ
Limited to cap-and trade program only (recent development)
1. Order to set aside the Program FED
2. Enjoining “further implementation” of Scoping Plan
> No further “rulemaking” activites
> What is that?
> notice and comments
> finalize regulations
> hold public workshops?
Upper hand?
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Recent Developments?
May 23 ARB files an appeal
Issue: Is the Superior Court order automatically stayed?
Thurs. June 2 ARB petitions for writ of Supersedeas(1) argues that there is an automatic stay(2) if there is no automatic stay, asks for one
Frid., June 3 Ex-parte application by AIR with Superior Court
Frid., June 3 Court of Appeals issues temporary stay – asks AIR to file documents by June 20, 2011
Mon. June 6 Superior Court finds CARB in violation of the writ
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Is Everyone Confused Now?
Even the courts are confused!
What happened?
> CARB claims AIR knew about the Court of Appeals stay but did not tell the Superior Court on June 3, 2011
> Who has the upper hand now?
What next?
> CARB is proceeding as if the Superior Court June 6, 2011 decision is “inoperative”
> Superior Court cancelled hearing where Mary Nichols and James Goldstene were ordered to testify
> AIR is asking Court of Appeals to cla
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Bottom Line?
AIR is probably right
So what is CARB’s strategy?
> Get a stay
> Fix FED before appeal process concludes
What’s the risk?
> The stay is not granted
