Friday, February 4, 2011

ab32 lawsuit

Looks like a devastating result for EJ advocates. I don't see how finding the alternatives analysis of CEQA to be in violation is going to lead to an improvement in EJ outcomes. The CARB will simply prepare an updated alternatives analysis that will still lead to cap and trade as the preferred alternative. California agencies have never (or, perhaps, rarely) seen an alternatives analysis as an occasion to change a preferred policy.


  • "Arbitrary and capricious" is the relevant standard against which the court will judge the ARB.
  • ARB's interpretation of the 2020 target as a floor on reductions is fine.
  • Costs are properly evaluated for the plan as a whole - not individual measures.
  • Exclusion of agriculture also okay.
  • "The statute does not support the argument that ARB must demonstrate that cap and trade will result in the same reductions as any direct regulation."
  • CARB justified in choosing cap and trade
  • "In the analysis of voluntary and incentivized measures for the agricultural sector, the record does not demonstrate that ARB used the best available models as required by AB 32."
  • AB 32 does not specify that analyses have to be quantitative (?)
  • Public health analysis fine (but no mention of the question of co-benefits)
  • No AB 32 revisions necessary - CARB gets wide latitude as a quasi-legislative agency
  • This is a program- as opposed to project-level EIR. They are assessed on different merits.
  • Location of biofuel plants was speculated upon in the SP, but CARB was justified in only giving a vague description of possible impacts. The case cited here (Rio Vista) refers to a county that generated a hazardous waste landfill plan, but did not specify particular locations, so it seems to be a little different.
  • The impacts portions of the FED are complete.
  • The "programmatic" label cannot be used to justify an analysis which is inadequate for informed public review and informed decision making by the ARB. Respondent has argued that more detailed analysis of alternative may come later during the implementation process. This claim has no credibility because the ARB has already proceeded, prematurely, with the implementation process.

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