In Association of Irritated Residents, et al. v. California Air Resources Board, et al. (Case No. CPF-09-509562), the San Francisco Superior Court issued a tentative statement of decision on January 21, 2011, that effectively blocks the California Air Resources Board (CARB) from implementing any greenhouse gas reducing actions outlined in the Scoping Plan passed under Assembly Bill (AB) 32 until CARB complies with CEQA.
In 2006, the California Legislature passed AB 32, which established the goal of reducing greenhouse gas emissions to 1990 levels by 2020. To that end, AB 32 included a number of specific requirements, including a directive to CARB to prepare and approve a Climate Change Scoping Plan. The Scoping Plan provides an outline for actions to reduce greenhouse gases and indicates how these emissions reductions will be achieved from significant greenhouse gas sources through regulations, market mechanisms, and other actions. To comply with CEQA, CARB prepared a “functional equivalency document” (FED) under CEQA instead of preparing an environmental impact report or negative declaration. CEQA allows state regulatory programs, including the Scoping Plan, meeting certain environmental standards to comply with abbreviated CEQA requirements.
Petitioners, a number of environmental groups, challenged CARB’s implementation of AB 32, arguing the Scoping Plan failed to comply with the requirements of AB 32 and CEQA by allegedly treating the Scoping Plan as a post hoc rationalization for CARB’s already-sanctioned policy approaches. Petitioners asserted three main arguments: 1) CARB failed to adequately analyze the impacts of the Scoping Plan; 2) CARB failed to adequately analyze alternatives to the Scoping Plan; and 3) CARB impermissibly approved and implemented the Scoping Plan before completing its environmental review.
The trial court’s tentative ruling rejected the first argument, holding that CARB’s discussion of impacts was sufficiently detailed for a program-level FED. Petitioners contended that CARB improperly deferred impact analysis of potential future biofuel production facilities, refineries, and power plants, in addition to cumulative impacts. According to Petitioners, the FED’s treatment of these subjects required more detailed analysis. The court found that deferring more detailed discussion of environmental impacts to the project-level stage was appropriate in the FED.
The court agreed with Petitioners’ second argument, finding that CARB failed to include facts or data to support its decision to select the Scoping Plan over the alternatives. Although a program-level EIR does not need to be as detailed as a project-level EIR, CARB was still required to provide evidence for its conclusion, particularly where, as alleged here, CARB could have used data from existing programs, studies, and reports to analyze the potential impacts of the alternatives. In essence, the court stated, CARB created a fait accompli by prematurely establishing a cap and trade program before performing sufficient analysis of alternatives.
The court also agreed with Petitioners’ last argument, ruling that CARB prematurely approved the Scoping Plan prior to completing environmental review. Prior to issuing its responses to comments on the FED, CARB held a public workshop in January 2009 on the implementation of the plan. The notice for that meeting stated that CARB had already approved the Scoping Plan in December 2008.
As of February 2, 2011, the court’s ruling is a tentative decision. The court has allowed the parties 15 days from the issuance of the tentative decision to submit objections before the court issues a final decision.