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Association of Irritated Residents et al v. California Air Resources Board et al

June 19, 2012

ASSOCIATION OF IRRITATED RESIDENTS ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA AIR RESOURCES BOARD ET AL., DEFENDANTS AND APPELLANTS.



Superior Court of the City & County of San Francisco, No. CPF-09-509562, Ernest H. Goldsmith, Judge.

The opinion of the court was delivered by: Pollak, J.

CERTIFIED FOR PUBLICATION

(City & County of San Francisco Super. Ct. No. CPF-09-509562)

This appeal questions whether the "Climate Change Scoping Plan" adopted by the California Air Resources Board in 2009 complies with the requirements of the Global Warming Solutions Act of 2006. As did the trial court, we answer this question in the affirmative.

Background

The Legislation

The Global Warming Solutions Act of 2006 (the Act or AB 32) (Health & Saf. Code,§ 38500 et seq.)*fn1 was conceived as groundbreaking legislation. The findings with which the Act begins declare that "[g]lobal warming poses a serious threat to the economic well-being, public health, natural resources, and the environment of California" (§ 38501, subd. (a)) and continues: "California has long been a national and international leader on energy conservation and environmental stewardship efforts, including the areas of air quality protections, energy efficiency requirements, renewable energy standards, natural resource conservation, and greenhouse gas emission standards for passenger vehicles. The program established by this division will continue this tradition of environmental leadership by placing California at the forefront of national and international efforts to reduce emissions of greenhouse gases" (§ 38501, subd. (c)).

The Act designates the California Air Resources Board (ARB or the Board) as "the state agency charged with monitoring and regulating sources of emission of greenhouse gases that cause global warming in order to reduce emissions of greenhouse gases" (§ 38510), and imposes numerous directives and timelines on the Board. By June 30, 2007, the Board was to publish "a list of discrete early action greenhouse gas emission reduction measures that can be implemented prior to the measures and limits" to be adopted subsequently (§ 38560.5, subd. (a)), and to adopt implementing regulations by January 1, 2010. (§ 38560.5, subd. (b).) By January 1, 2008, the Board was to "adopt regulations to require the reporting and verification of statewide greenhouse gas emissions and to monitor and enforce compliance with this program." (§ 38530, subd. (a).) By the same date and after receiving public input, the Board was required to "determine what the statewide greenhouse emissions level was in 1990, and approve . . . a statewide greenhouse emissions limit that is equivalent to that level, to be achieved by 2020." (§ 38550.)*fn2

The mandate central to the current litigation is contained in section 38561, which provides in part: "(a) On or before January 1, 2009, the [Board] shall prepare and approve a scoping plan as that term is understood by the [Board], for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions from sources or categories of sources of greenhouse gases by 2020 under this division. . . . [¶] (b) The plan shall identify and make recommendations on direct emission reduction measures, alternative compliance mechanisms, market-based compliance mechanisms, and potential monetary and non-monetary incentives for sources and categories of sources that the [Board] finds are necessary or desirable to facilitate the achievement of the maximum feasible and cost-effective reductions of greenhouse gas emissions by 2020. [¶] . . . [¶] (d) The [Board] shall evaluate the total potential costs and total potential economic and non-economic benefits of the plan for reducing greenhouse gases to California's economy, environment, and public health, using the best available economic models, emission estimation techniques, and other scientific methods."*fn3 The Board is required to update the scoping plan "at least once every five years." (§ 38561, subd. (h).) Section 38562 requires the Board to adopt implementing regulations by January 1, 2011, to become effective on January 1, 2012.*fn4

Adoption of the Scoping Plan

The process for developing and approving the scoping plan in compliance with the statutory mandate was extensive and rigorous. Since no challenge is made to the procedures followed by the Board, the process need not be elaborated in detail. The process involved more than 250 public workshops, more than 350 community meetings, and meetings by several specialized committees, including an environmental justice advisory committee, an economic and technology advancement advisory committee, and a market advisory committee. Technical analyses were submitted to academic peer review. In June 2008, the Board released a discussion draft of the scoping plan, in response to which it received some 5,000 pages of public comments. This was followed by several staff-led public workshops and community meetings. Additional public comments were received at Board meetings in June and October 2008. In October the Board released the "Proposed Scoping Plan" which elicited thousands of additional public comments. In all, more than 42,000 people commented on the draft scoping plan. The final public hearings took place over two days in December 2008, during which the Board made some modifications to the proposed scoping plan and, at the conclusion of the hearing, adopted Resolution No. 08-47. The resolution directed staff to take certain steps to finalize the plan and the functional equivalent document (FED) prepared to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).*fn5 The resolution recited that "[t]he recommendations in the Proposed Scoping Plan are necessary or desirable to facilitate the achievement of the maximum feasible and cost-effective reductions of greenhouse gas emissions by 2020." On May 7, 2009, the Board issued Executive Order No. G-09-001 adopting the final scoping plan.

The Scoping Plan

The final plan, entitled "Climate Change Scoping Plan: a framework for change," is 121 pages in length, plus many lengthy exhibits and appendices. The plan is preceded by a 14-page executive summary and consists of an introductory framework section, a section listing proposed emissions reduction measures, a section discussing methods used to evaluate those measures, a section discussing implementation of the plan, and a final section entitled "A Vision for the Future." The section on emissions reduction measures lists measures under 18 categories, including "California Cap-and-Trade Program Linked to Western Climate Initiative Partner Jurisdictions," energy efficiency, low carbon fuel standards, vehicle efficiency measures, a "Million Solar Roofs Program," industrial emissions, high speed rail, green building strategy, recycling and waste, sustainable forests, water, and agriculture. The plan summarizes the key elements of its recommendations, designed to reduce greenhouse gas emissions to 1990 levels by 2020, as follows:

* "Expanding and strengthening existing energy efficiency programs as well as building and appliance standards;

* Achieving a statewide renewable energy mix of 33 percent;

* Developing a California cap-and-trade program that links with other Western Climate Initiative partner programs to ...


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