California Court of Appeal Upholds Statewide Climate Change Scoping Plan

The court of appeal in San Francisco has upheld the Climate Change Scoping Plan adopted by the Air Resources Board in December 2008.  In its June 19th decision in Association of Irritated Residents v. California Air Resources Board, the court rejected claims by environmental groups that the Plan violated the Global Warming Solutions Act of 2006, commonly known as AB 32. AB 32 requires California to reduce its greenhouse gas emissions to 1990 levels by 2020.  To that end, AB 32 directs the Air Board, the agency responsible for implementing the law, to establish a statewide GHG emissions limit for 2020 and adopt a "scoping plan" that identifies ways to reduce emissions from stationary and mobile sources in order to meet that limit. The Scoping Plan. After more than 250 public workshops and 350 community meetings, as well as input from various specialized committees, the Air Board approved a Scoping Plan outlining the following key strategies for reducing GHG emissions in California:

• Expand and strengthen existing energy efficiency programs and building and appliance standards;
• Achieve a statewide renewables energy mix of 33 percent;
• Develop a California cap-and-trade program that links with similar programs in otherU.S.states and Canadian provinces as part of the Western Climate Initiative in order to create a regional market-based emissions trading system;
• Establish targets for transportation-related GHG emissions in the state and pursue policies and incentives to achieve those targets;
• Adopt and implement emissions-reduction measures under existing California laws and policies, such asCalifornia's Clean Cars standards and Low Carbon Fuel Standard.
• Create targeted fee programs, such as a public goods charge on water usage that can be used to fund water efficiency programs and improvements and fees to fund the administrative costs of implementing AB 32.

• On the first claim, the court rejected the assertion that the Plan violated AB 32's requirement, set forth in section 38562 of the California Health & Safety Code, to achieve "the maximum technologically feasible and cost-effective reductions" by 2020.  The court ruled that this language must be read in conjunction with AB 32's specific directive to achieve 1990 emissions levels by 2020 and that the Air Board properly devised the Plan to reach those emissions levels.  The court also refused to second-guess the Air Board's determination to reject alternative measures (such as imposing a carbon fee or non-market-based emissions limits) as infeasible and not cost-effective.
• As to the second claim, the court emphasized that cost-effectiveness is not easily measured, especially when trying to compare a market-based system with a command and control regulatory approach.  Noting that the Air Board adequately explained these difficulties and the methodology it used, the court refused to reweigh the conflicting opinions on this complex technical issue.
• On the third claim, the court found that the Air Board extensively analyzed potential control measures for the agricultural sector.  Due to the gaps in the scientific knowledge concerning GHG emissions from agricultural processes, the Plan includes only voluntary measures, with a commitment to undertake further research and a reassessment in five years.  The court found that this approach was reasonable and that Board adequately explained its rationale.
• Finally, the court upheld the Plan's analysis of public health issues, concluding that AB 32 does not require a comparison of the health consequences of each measure that is adopted against the consequences that would occur if that particular measure is not adopted.  The court also ruled there was nothing unreasonable in using the South Coast Air Basin and the City of Wilmington to  illustrate public health issues from a regional and local perspective, without analyzing other specific regions and localities.