Court sends CARB back to the drawing board

In implementing California’s AB32 law, which strangles or drives away California industry by mandating CO2 emission reductions to 1990 levels, CARB (the California Air Resources Board) arbitrarily chose a cap and trade mechanism instead of “source-specific regulations” or a carbon tax, according to a San Francisco judge:

Petitioners contend that ARB’s [(California) Air Resources Board’s] discussion of alternatives is unsupported by facts or data and therefore gives the public no indication of why ARB chose the Scoping Plan over the other alternatives.

The FED [Functional Equivalent Document] contains a discussion of five alternatives to the Scoping Plan.  Alternative 1 describes the “no project” or “business as usual” alternative.  Alternative 2 is a variation of the stategies and measures proposed by the Scoping Plan.  Alternatives 3, 4 and 5 are programs that rely primarily on cap and trade, source-specific regulations, or a carbon fee.  …

ARB seeks to create a fait accompli by premature establishment of a cap and trade program before alternative[s] can be exposed to public comment and properly evaluated by the ARB itself.  ARB’s analysis provides no evidence to support its chosen proposal, and as Petitioners point out, data is available to analyze.  ARB argues Petitioners have not presented information on alternatives, particularly carbon fee mechanisms.  However, that is ARB’s responsibility.  ARB could have, and should have, used data from existing programs, studies and reports to analyze the potential impacts of the various alternatives.

The Court concludes that because ARB did not include any facts or data to support the conclusions stated in its alternatives analysis, it abused its discretion in certifying the FED as complete.

San Francisco Chronicle article:  “Calif. cap-trade plan dealt blow by S.F. judge


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