Any sort of robust climate change legislation at the federal level has become a political non-starter for the time being. After a string of failed cap and trade bills, and the House’s recent decision to strip the EPA of any potential power to regulate CO2 emissions, the federal response is to be decided another day.
Some states have attempted to fill this legislative void, most notably, the state of California. In addition to California representative Lois Capp’s progressive bill aimed at mitigating Co2 emissions, the state has led the foray into climate change legislation. California has passed resolutions, executive orders, and–the action with the most teeth–Assembly Bill 32.
Assembly Bill 32, formerly known as the Global Warming Solutions Act of 2006 (“AB 32”), was one of former Governor Schwarzenegger’s self-described greatest achievements of his administration. The legislation is an enormous realization, calling for California’s Air Resources Board (the “Board”) to implement broad-reaching regulations to fight greenhouse gas emissions. Many commentators had previously believed that once AB 32 was passed, the promulgation of the regulations would be the easy part. Unfortunately, this turned out to be wishful thinking. AB 32 has been met with myriad roadblocks, culminating in a recent decision in California’s Superior Court, Associated Irritated Residents v. CARB, which raises questions about when, if ever, the bill will have any practical effect.
Associated Irritated Residents was brought by the Center on Race, Poverty and the Environment. The plaintiffs’ alleged that the Board’s regulatory implementation of AB32, which included a cap and trade scheme, violated California law. The plaintiff’s claims made several administrative law arguments, including allegations that the Board 1) failed to adequately study alternatives, 2) failed to respond to comments, and 3) passed the regulations in a generally deficient manner. The judge that wrote the Associated Irritated Residents opinion, Judge Goldsmith, agreed with the plaintiffs, holding that the Board sought “to create a fait accompli by premature establishment of a cap-and-trade program before alternative [sic] can be exposed to public comment and properly evaluated.”
Associated Irritated Residents is critical because it creates a relatively strict procedural hurdle for California’s Board. For example, Judge Goldsmith held that the Board insufficiently considered alternatives, but, according to the administrative record, the Board had considered at least five alternatives. In fact, the Board’s analysis of one alternative spanned over ten pages. Similarly, the Board’s response to comments was held to be inadequate even though many responses went out. Although the court cites policy reasons for requiring strict compliance, this seems a rigid application of process requirements–especially in light of the relatively liberal deference courts typically give agency decisions. That the Board’s actions were inadequate is clear, what the Board has to do to survive court going forward–less so.
Associated Irritated Resident’s import for California, and the rest of the nation, is still unclear. Many commentators suggest that this procedural burden is a slight hindrance, and that in hindsight, this case will be seen as a success for AB 32. These scholars reason that the plaintiffs’ challenges to the Board’s substantive bases for its regulations–which are essential to AB 32’s success–were rejected by the court, and that the claims upheld are nothing but procedural tactics that will delay the inevitable.
This seems a logical reading of the case. Notably, Judge Goldsmith held that the California legislature intended to delegate significant authority to the Board to develop measures to achieve “AB 32’s multiple substantive goals,” and that the court therefore would apply an arbitrary and capricious standard. The first section of the opinion affirmed that the Board’s overall plan survived challenge given the agency’s broad “quasi legislative” authority and its “wide latitude” to regulate.
However, the process-attack on the Board should not be simply ignored. Associated Irritated Residents unyielding approach indicates that the road to effective climate change could be littered with successful procedural challenges before agencies get it right. If an agency is unable to promulgate rules without excessive studies and alternative analysis, the federal government may well be in the climate change arena before California’s efforts get off the ground.
—–Joe Regalia is the Online Content/Technology Editor for MJEAL. He can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
See Geoffrey Styles, Congress Defers to EPA on Climate Policy, Energy Watchhttp://energyoutlook.blogspot.com/2011/04/congress-defers-to-epa-on-climate.html (discussing the various difficulties Congress has had in passing climate change legislation).
Climate Change Programs, California Environmental Protection Agency’s Air Resources Board, http://www.arb.ca.gov/cc/cc.htm
Ass’n of Irritated Residents v. California Air Resources Bd., 2011 WL 991534.
Ann Carlson, AB 32 Lawsuit: Assessing the Environmental Justice Arguments Against Cap and Trade, Legal Planet, http://legalplanet.wordpress.com/2011/03/22/ab-32-lawsuit-assessing-the-environmental-justice-arguments-against-cap-and-trade.