California cap and trade plan cleared by court
By Bob Egelko, San Francisco Chronicle - Jun 30th, 2011
An appellate court is allowing California to go ahead with a market-oriented cap-and-trade system of pollution credits to combat global warming while state officials appeal a judge's order to look harder at alternatives that some environmentalists prefer, such as a tax on carbon fuels.
The order by the state's First District Court of Appeal in San Francisco was a victory for the California Air Resources Board, which says it needs to keep planning in order to put cap and trade into effect by January as scheduled.
On Wednesday, however, the board said it was delaying enforcement against polluters until January 2013 to allow more time for preparation and fine-tuning.
The case arises from a dispute between state regulators and some environmentalists and antipoverty activists over how to implement California's global warming law, AB32. The law, the first of its kind in the nation, requires the state to reduce greenhouse gas emissions to 1990 levels by 2020.
The Air Resources Board's central strategy is cap and trade, which sets industrywide limits on emissions of carbon dioxide and other gases contributing to climate change and reduces those limits each year through 2020.
Businesses that exceed their limits can buy allowances from other companies, and can also meet their goals through environmentally friendly actions such as planting trees anywhere in the world.
Conservatives have defeated national cap-and-trade proposals in Congress. The California challenge, however, comes from grassroots environmental justice groups, which argue that companies that buy the right to exceed emission limits will also spew more conventional pollutants on nearby communities, mostly poor and nonwhite.
Their lawsuit accused the air board of giving short shrift to alternatives, such as strict, non-tradable limits on greenhouse-gas emissions and a tax on gasoline and other carbon-containing fuels. Most mainstream environmental groups support cap and trade and have stayed out of the suit.
On May 20, Judge Ernest Goldsmith of San Francisco Superior Court issued an injunction requiring the state board to stop its implementation of cap and trade until it conducts an environmental review of other options.
But the appeals court suspended his injunction June 3 and issued another order Friday that continues the stay while the case is before the court. As usual in such orders, the three-judge panel did not state its reasons.
The stay will probably last at least a year, Brent Newell, a lawyer for the environmentalist plaintiffs, said Wednesday.
"Unless there's any further proceedings or developments, they (the board) have what they want, license to proceed with their intention of developing cap and trade while supposedly considering alternatives," said Newell, of the Center on Race, Poverty and the Environment.
He declined to say whether the plaintiffs would ask the state Supreme Court to intervene.
The air board has continued its work on cap and trade without interruption. A spokesman, Stanley Young, said Wednesday that the board has prepared analyses of the alternatives to cap and trade and is seeking public comments, which it will review at a meeting Aug. 24.