Wednesday, July 17, 2013
C.A. Rejects AB 32 Rules, but Allows Them to Stay in Place for Now
By KENNETH OFGANG, Staff Writer
The Fifth District Court of Appeal has rejected the California Air Resources Board’s Low Carbon Fuels Standards, as applied to diesel, but said the agency could enforce them while it gives them a rewrite.
Justice Donald Franson Jr., in a 95-page opinion filed Monday, said the board had complied with most of the legal requirements for adopting the standards, which were mandated by AB 32, the Global Warming Act of 2006. But in rushing to meet the act’s Jan. 1, 2010 deadline, the ARB “ran afoul of several procedural requirements imposed by” the California Environmental Quality Act and the Administrative Procedures Act, the justice said.
The ruling is a partial victory for POET, LLC, the self-described world leader in the production of corn ethanol. POET claims that the regulations requiring it to reduce the carbon content of fuels sold or supplied in the state will cause it serious economic harm.
AB 32 sets a goal of reducing greenhouse gas emissions to 1990 levels by 2020, and requires the ARB to establish regulations for that purpose, the first of which took effect last year. While there are many sources of greenhouse gas emissions, Franson noted Monday that transportation fuels are by far the largest.
An industry-backed effort to suspend the law was on the November 2010 ballot as Proposition 23. It was defeated, receiving less than 39 percent of the vote.
Fresno Superior Court Judge Jeffrey Hamilton upheld the LCFS in 2011, but Franson said there were several procedural deficiencies in their approval. That part of the ruling was anticipated, based on the court’s request for supplemental briefing last February and its tentative decision last month.
As it signaled in those filings, the court held Monday that ARB violated CEQA by approving the regulations following an April 2009 public hearing, even though it had not yet completed public review; by splitting the authority to approve or disapprove the regulations from the responsibility of completing the environmental review, dividing responsibility between the board and its executive officer; and by impermissibly deferring the formulation of mitigation measures regarding the potential increase in nitrogen oxide, or NOx, emissions resulting from increased use of biodiesel.
The panel, however, which in its February request asked the parties what remedies would be appropriate if it reached those conclusions, said the potential harm to the environment was of sufficient concern to persuade it to leave the regulations in effect for the time being.
Writ of mandate
CEQA, Franson noted, requires a writ of mandate be granted to remedy a violation of the statute, but gives a court broad discretion determining the content of its order. A court may, he noted, “void, in whole or in part, a determination, finding or decision;” it may “suspend any or all specific project activity or activities;” or it may “take specific action necessary to bring the determination, finding or decision tainted by the CEQA violation into compliance with CEQA.”
ARB, the justice said, must set aside its approval of the regulations and its decision to defer the formulation of the NOx mitigation measures, select a decision maker with full authority to complete the environmental review and approve or disapprove the LCFS regulations, determine whether increased NOx emissions will significantly harm the environment and adopt mitigation measures if necessary, allow a new public comment period of at least 45 days, supplement its rulemaking file to include emails that were omitted, and preserve the regulatory status quo.
The trial court, Franson added, will have the authority to suspend the regulations if ARB “fails to proceed in good faith with diligence.”
The case is POET, LLC v. California Air Resources Board, 13 S.O.S. 3581.
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