Court Bars Further Implementation of AB32

As we were wrapping up our Board of Directors meetings last week, the Superior Court of California in San Francisco barred further implementation of AB 32 pending CEQA compliance.  In Association of Irritated Residents, et al. v. California Air Resources Board, et al., the Superior Court issued a “tentative statement of decision” (Tentative Decision) that prevents the California Air Resources Board (CARB) from implementing a state-wide Green House Gas reduction regulatory program under AB 32 until the agency complies with the requirements of the California Environmental Quality Act (CEQA).

AB 32, the state’s landmark 2006 climate change statute, required CARB to develop a regulatory program to reduce state-wide GHG emissions to 1990 levels by 2020.  In response to this mandate, the Board of CARB already approved a first set of comprehensive regulations in December 2010; the regulations were based on an earlier “Scoping Plan” developed by the CARB staff.   The Tentative Decision partially grants a petition for a writ of mandate brought by a coalition of environmental justice organizations (Petitioners) that alleged that CARB’s Scoping Plan violated both AB 32 and CEQA. “Environmental Justice” is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

Although the Superior Court denied all claims related to AB 32, the court found that CARB: 1) failed to adequately discuss and analyze the impacts of alternatives in its proposed Scoping Plan as required by its CEQA implementing regulations; and 2) improperly approved the Scoping Plan prior to completing the environmental review required by CEQA.  In upholding the Petitioners’ challenge on these two CEQA issues, the Superior Court issued a Peremptory Writ of Mandate and enjoined CARB from further implementation of the Scoping Plan until it complies with all CEQA requirements. Parties to the case have 15 days from the issuance of the Tentative Decision to file objections before the Superior Court issues a final decision in the case.

While this is good news for some, the order to stop the implementation of AB 32 has little effect on the housing sector and will not affect other Green House Gas reducing mandates already in place such as SB 375: the anti-sprawl law which requires regional governments to reduce Green House Gas emissions via land use and transportation planning, and AB 758: which will require energy efficient retrofits in California’s existing homes and commercial properties. The stay will, however, affect the development of regulations concerning Cap-and-Trade, Low Carbon Fuel Standards, Renewable Energy, Landfills, Vehicles, Industrial Emissions, etc.

C.A.R. took a neutral position on AB 32 when it passed through the legislature in 2006.  At the time, C.A.R. did not find tailpipe emissions reductions and cap-and-trade policies to be of direct and immediate concern to REALTORS®.  Subsequent to the passage of AB 32, C.A.R. has monitored AB 32 implementation planning and policy development meetings. C.A.R. remains neutral on the goal of GHG reduction yet continues to urge CARB and other state agencies to consider the real cost of doing business and to take a realistic approach to the implementation of their rules and policies.