Lawsuit Alleges California's Cap-And-Trade Plan Fails To Minimize GHG Emissions

A lawsuit by several environmental advocacy groups against the California Air Resources Board (CARB) (09-509562) continues to wend its way through the San Francisco Superior Court, with a scheduled hearing on the Environmental Defense Fund’s motion to file an intervening complaint being the next step in the litigation. The complaint alleges that the agency’s plan fails to minimize greenhouse gas emissions and protect vulnerable communities, which contravenes the Global Warming Solutions Act of 2006 (AB 32). The complaint also alleges violations of the California Environmental Quality Act (CEQA).

The lawsuit has garnered significant attention because of its focus on an emissions trading program proposed by the agency. The lawsuit could be viewed as foreshadowing similar challenges to federally implemented cap-and-trade programs. Even if cap-and-trade and similar programs win the approval of mainstream environmental activists, they can still face major legal challenges by smaller groups.

The Association of Irritated Residents and similar groups allege that CARB chose an emissions trading program on the basis of political feasibility, and ignored data suggesting such programs do not reduce emissions and do not improve air quality. They also claim that CARB has failed to meet procedural review and public participation standards required under California law.

CARB has strongly disputed the allegations: according to CARB Chairman Mary D. Nichols, “Our process for developing the Scoping Plan was unprecedented in its openness and transparency, including many opportunities for substantive comment and interaction as the plan went through the draft process and through the final adoption.” She also noted that “Ironically, some of the plaintiffs sit on ARB's Environmental Justice Advisory Committee (established by AB 32) and enjoyed unparalleled access to ARB staff and board members throughout the plan preparation.” Nichols expressed concern over an attack on the emissions trading program in its early stages, writing, “Now is the time to begin focusing on mechanisms to assure that the program is designed to assure that the communities that are most negatively impacted by industrial pollution receive a proportionately greater share of the benefits, including direct co-benefits from cleanup of existing sources.”