As we discussed previously, the AB 32 rule making process for Cap and Trade received a large setback when the lawsuit brought by several environmental groups successfully argued, at the Superior Court level, that the environmental document that was required to be approved at the time the regulations were approved was deficient. The Court after providing a tentative order issued a final Writ that prohibited the California Air Resources Control Board (“CARB”) from continuing to work on the regulations. For additional information see our blog entitled, “California Cap & Trade Challenge Final Order Issued.”
CARB appealed the decision and continued to work on the regulations which prompted objections from the original Petitioners. On June 6, 2011, in fact, the San Francisco Superior Court issued an order (PDF) that criticized CARB for continuing to work on AB 32 regulation despite the injunction issued in the CEQA case.
Then, in a strange turn of events it was discovered that prior to the Superior Courts’ June 6 order criticizing CARB, the Court of Appeals temporarily stayed the trial court’s injunction that prevented the CARB from implementing its cap and trade program.
“Pending this court’s consideration of appellants’ Petition for Writ of Supersedeas, enforcement of the superior court’s Peremptory Writ of Mandate, dated May 20, 2011 issued in Association of Irritated Residents et al. v. California Air Resources Board et al., San Francisco County Superior Court Case No. CPF-09-509562 is temporarily stayed. Appellees are directed to serve and file points and authorities in opposition to the petition for writ of supersedeas on or before June 20, 2011. (California Rules of Court, rule. 8.112(b).) In addition to addressing all the issues raised in the petition, shall inform the court of any further orders issued by the San Francisco Superior Court at or after its June 3, 2011 hearing in this matter…”
Thus, the parties will provide argument to the Appeals Court as to whether to continue to maintain the stay or lift the stay while the appeal is pending.
In our view, one issue the Appeals Court should be looking at is whether allowing CARB to go forward could foreclose alternatives or mitigation measures that could otherwise be considered when the revised environmental document is finalized. Since the main focus of the new document is alternatives, the further promulgation of regulations could foreclose alternatives. However, if the implementation of the rules occurs after the environmental document is release one could argue that the alternatives discussed may not have been ruled out. Stay tuned.