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Association of Irritated Residents v. California Air Resources Board. Summary and Status Update California Cap and Trade Workshop Climate Action Reserve Houston, TX Jean-Philippe Brisson, Senior Counsel Head, Environment and Climate Change Practice Linklaters LLP jp.brisson@linklaters.com

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association of irritated residents v california air resources board

Association of Irritated Residents v. California Air Resources Board

Summary and Status Update

California Cap and Trade WorkshopClimate Action ReserveHouston, TX

Jean-Philippe Brisson, Senior CounselHead, Environment and Climate Change PracticeLinklaters LLP jp.brisson@linklaters.com

June 14, 2011

legal notice
Legal Notice
  • The contents of this presentation are for general informational purposes only and do not claim to be comprehensive or provide legal or other advice. This presentation is not intended to create, and does not create, an attorney-client relationship between you and Linklaters, and you should not act or rely on any information in this presentation. Linklaters accepts no responsibility for loss which may arise from accessing or reliance on information contained in this presentation.
air v carb why is it relevant
AIR v. CARB: Why is it Relevant?
  • 1. Will the courts preempt entry into force of cap-and-trade?
  • No, not under this lawsuit
  • 2. Will the start of cap-and-trade program be delayed?
  • Possible, but unlikely
  • Issue is whether stay will remain in effect while CARB fixes the FED
  • 3. Will the lawsuit be a drain on limited CARB resources?
  • Yes, but to what extent?
  • Paragraph 9, Edith Chang’s Declaration
california environmental quality act ceqa
California Environmental Quality Act (“CEQA”)
  • Purpose: requires government agencies to consider environmental consequences before approving plans and policies or committing to a course of action on a project
  • Procedural Requirement: agencies must identify environmental effects, mitigation measures and alternatives to the proposed project in an Environmental Impact Report (“EIR”)
  • Certified Regulatory Program
    • Certain agencies, such as the California Air Resources Board (“CARB”), are “Certified Regulatory Programs” and file functionally equivalent documents (“FEDs”) instead

“Tiering”: allows agencies to conduct EIRs or FEDs in two steps

    • Program EIR/FED is prepared for a series of actions that may be considered one large project
    • Project EIR/FED examines the impact of a specific development project and may incorporate by reference earlier EIRs or FEDs
global warming solutions act of 2006 ab 32
Global Warming Solutions Act of 2006 (“AB 32”)
  • AB32 Adopted and signed into law in 2006
    • Sets 2020 reduction goal into law
    • Directs CARB to prepare a scoping plan (the “Scoping Plan”) to identify how best to achieve the 2020 limit
  • Scoping Plan
    • Approved December 12, 2008
    • CARB conducted a first-tier, program FED for the Scoping Plan
      • Appendix J of the Scoping Plan: 119-page program FED
      • Program FED assessed a number of options, including no source-specific regulatory requirements without cap-and-trade component, carbon fee, no action, a variation of the proposed measures in the Scoping Plan

Cap-and-Trade Draft Regulations

    • Approved December 16, 2010
    • Appendix O contains the project FED
air v carb parties action and posture
AIR v. CARB: Parties, Action and Posture
  • Petitioners: a collection of concerned citizens and nonprofit organizations
  • Respondents: CARB, the Chairman of CARB, and members of CARB
  • Nature of Action: Petition for Writ of Mandate, filed June 10, 2009
  • Court: Superior Court of California, County of San Francisco, Judge Goldsmith
timeline of events
Timeline of Events

Initial Filing of Petition

Interim Decision

Judgment and Writ

Final Decision

CARB files appeal

  • June 3, 2011 Court of Appeal issues temporary stay
  • June 13, 2011 CARB publishes amended FED
  • June 20, 2011 AIR needs to file its response
air v carb arguments
AIR v. CARB: Arguments
  • AIR makes arguments in two general categories
    • CARB improperly interpreted and failed to comply with AB 32
    • CARB violated CEQA and its Certified Regulatory Program because of inadequate FED
  • CARB argues that it complied with AB 32 and CEQA, and that AIR disagrees with its policy decisions
air v carb court decision
AIR v. CARB: Court Decision
  • CARB did not improperly interpret or fail to comply with AB 32
  • CARB did violate CEQA because it
    • failed to adequately analyze alternatives to cap-and-trade in the program FED (e.g., no source-specific regulatory requirements without cap-and-trade component, carbon fee, no action, a variation of the proposed measures)
    • improperly approved the Scoping Plan prior to FED completion
air v carb judgment and writ
AIR v. CARB: Judgment and Writ
  • Limited to cap-and trade program only (recent development)
  • Order to set aside the Program FED
  • Enjoining “further implementation” of Scoping Plan
      • No further “rulemaking” activites
      • What is that?
        • notice and comments
        • finalize regulations
        • hold public workshops?

Upper hand?

recent developments
Recent Developments?

May 23 ARB files an appeal

Issue: Is the Superior Court order automatically stayed?

Thurs. June 2 ARB petitions for writ of Supersedeas (1) argues that there is an automatic stay (2) if there is no automatic stay, asks for one

Frid., June 3 Ex-parte application by AIR with Superior Court

Frid., June 3 Court of Appeals issues temporary stay – asks AIR to file documents by June 20, 2011

Mon. June 6 Superior Court finds CARB in violation of the writ

is everyone confused now
Is Everyone Confused Now?

Even the courts are confused!

What happened?

  • CARB claims AIR knew about the Court of Appeals stay but did not tell the Superior Court on June 3, 2011
  • Who has the upper hand now?

What next?

  • CARB is proceeding as if the Superior Court June 6, 2011 decision is “inoperative”
  • Superior Court cancelled hearing where Mary Nichols and James Goldstene were ordered to testify
  • AIR is asking Court of Appeals to cla
bottom line
Bottom Line?

AIR is probably right

So what is CARB’s strategy?

  • Get a stay
  • Fix FED before appeal process concludes

What’s the risk?

  • The stay is not granted