California Cap and Trade Survives Appellate Fight

SAN FRANCISCO (CN) - A controversial cap-and-trade program for California complies with the Global Warming Act, a state appeals court ruled.

Adopted by the state Legislature in 2006, the Global Warming Solutions Act tasked the California Air Resources Board with creating a scoping plan to curb and reduce greenhouse gas emissions to 1990 levels by 2020.

The act requires several measures by which the board can meet rigorous emissions-reduction standards.

In 2009, the board adopted a plan with 18 lists of environmentally sustainable methods to reduce greenhouse gas emissions, including the creation of a cap-and-trade-program, a market-oriented system in which companies buy and sell emissions credits.

But the Association of Irritated Residents and several other environmental advocates said that the 2009 scoping plan violates the California Environmental Quality Act (CEQA) and the Global Warming Solutions Act.

They claim that the plan is not economically feasible, does not reduce emissions for large-scale industrial and agricultural pollution sources, and fails to look for alternatives to the cap-and-trade program

Despite concluding that the scoping plan did not violate the Global Warming Act, a Superior Court judge also found that the board had failed to adequately study alternatives to the cap-and-trade program.

The court ordered the board to set the plan aside, pending a satisfactory environmental review.

While both parties appealed to the state's First Appellate District, the board made the court-mandated changes to the scoping plan and re-adopted it last fall.

That court's third division concluded last week that the board's process ensures "extensive and rigorous" compliance with the act.

As well as holding hundreds of public workshops and meetings, the board submitted the plan for peer review to "several specialized committees, including an environmental justice advisory committee, an economic and technology advancement advisory committee, and a market advisory committee," Justice Stuart Pollak wrote for a three-judge panel.

The court said it could determine only if the plan complied with the act, and whether or not the board's approval was arbitrary or capricious.

Noting that the law's mandates are written in very broad, vague terms, Pollack said "they leave virtually all decisions to the discretion of the board, from determining the nature of the scoping plan [...] to determining what is most 'feasible and cost-effective.'"

The court ultimately decided that the environmentalists' allegations were unfounded.

"The record reflects that the board went to exceptional lengths to obtain informed and scholarly input on the complex scientific and economic issues that bear on these critical qualifications," Pollack wrote. "While there are differences of opinion on many matters, AIR points to no recommendation included in the plan, and no rejection of a suggested recommendation, for which substantial evidence was not presented and considered."

The board itself contends that the cap-and-trade approach "avoids the danger of having government or other centralized decision-makers choose specific technologies, thereby limiting the flexibility to allow other options to emerge on a level playing field."

"After reviewing the record before us, we are satisfied that the Board has approached its difficult task in conformity with the directive from the Legislature, and that the measures that it has recommended reflect the exercise of sound judgment based upon substantial evidence," the decision concludes. "Further research and experience likely will suggest modifications to the blueprint drawn in the scoping plan, but the plan's adoption in 2009 was in no respect arbitrary or capricious."

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