On June 18, 2012, in Association of Irritated Residents v. California Air Resources Board (2012) ___ Cal.App.4th ___ (No. A132165), the First District Court of Appeal upheld the California Air Resources Board’s (“ARB’s”) 2009 Climate Change Scoping Plan, finding it complies with the requirements of California’s Global Warming Solutions Act of (2006) (“AB 32”) and that ARB’s adoption of the plan was not arbitrary or capricious.
AB 32 designates ARB as the state agency charged with monitoring and regulating sources of greenhouse gases and imposes numerous directives and timelines on ARB. Central to this case is AB 32’s mandates that ARB prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions from sources or categories of sources of greenhouse gases by 2020. Following an extensive public process, ARB adopted a final scoping plan, entitled “Climate Change Scoping Plan, a framework for change.” Among measures to reduce greenhouse gas emissions included in the final plan is a cap-and-trade program that links with other cap-and-trade programs to create a regional cap-and-trade market system. ARB also adopted a functional equivalent document (“FED”), a document similar to an environmental impact report, to comply with CEQA.
Thereafter, petitioner Association of Irritated Residents and several other non-profit organizations (collectively “AIR”) filed a petition of writ of mandate against ARB alleging that ARB’s Scoping Plan did not fulfill AB 32’s requirements and ARB’s FED did not comply with CEQA. The trial court held that the Scoping Plan complied with AB 32 and that ARB had not acted arbitrarily or capriciously in approving the plan. The trial court found, however, that the FED violated CEQA in that it failed to adequately analyze alternatives to the regional cap-and-trade program included in the scoping plan.
ARB appealed the trial court’s decision and AIR cross-appealed. While the appeal was pending, ARB prepared a supplement to its FED, providing the additional analysis that the trial court had found wanting. On August 24, 2011, ARB certified the supplemental FED and re-adopted the scoping plan. ARB thereafter filed a return to the writ of mandate, and the trial court discharged the writ. ARB’s appeal was then dismissed. Thus, the only issue remaining before the Court of Appeal was the question of whether the Scoping Plan satisfies AB 32’s requirements. Applying the deferential “arbitrary and capricious” standard, the court held that it did.
In so holding, the court described, in detail, what it believed to be a thorough analysis by ARB of the Scoping Plan and explained how ARB’s actions complied with the statute against AIR’s numerous claims to the contrary. The court noted that “[t]he Governor and the Legislature have set ambitious goals for reducing the level of greenhouse gas emissions in California and to do so by means that are feasible and most cost-effective.” The court recognized that ARB faced many challenges in achieving those goals. It stated that the Scoping Plan was a first attempt at addressing the overwhelming and pressing problem of greenhouse gas emissions at the state, and as such did not need to be perfect or answer every question presented by petitioners. In concluding, the court found ARB had exercised “sound judgment” in devising its Plan.