By Jeffrey Rector 

Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS). Some view this as the beginning of the end of the European Union’s ten-year carbon cap-and-trade experiment. A high profile failure of the EU ETS is likely to provide ammunition to critics California’s cap-and-trade program.

Continue Reading Can California Cap and Trade if Brussels Stumbles?

By Whitney HodgesRandy Visser & Olivier Theard 

The landmark Global Warming Solutions Act of 2006 (“AB 32”) tasked the California Air Resources Board (“ARB”) with reducing greenhouse gas (“GHG”) emissions to 1990 levels by 2020. In adopting a scoping plan assembling a number of differing, but complementary, GHG reduction strategies, the ARB included a “cap-and-trade” program as one such strategy to help satisfy AB 32’s goals while allowing industry flexibility in choosing emissions reduction options (i.e., facilities could choose to buy pollution credits, or could choose to reduce emissions and sell credits on the market). The “cap-and-trade” program was deemed preferable to other potential options such as a carbon tax.

Continue Reading What Will It Cost for California to Save the World? California Conducts its First Greenhouse Gas Cap-and-Trade Auction

Association of Irritated Residents v. California Air Resources Board et al., A132165 (1st  Dist. Div. 3, June 19, 2012)

By Randolph Visser and Whitney Hodges

On June 19, 2012, the California First District Court of Appeal upheld the California Air Resources Board’s (“ARB”) Climate Change Scoping Plan (“Scoping Plan”), which charts dozens of climate change control measures. This ruling clears the way for ARB to move forward with its designated plan to combat greenhouse gas (“GhG”) emissions with a market-based cap-and-trade program. The decision also found the Scoping Plan to be in compliance with the 2006 California Global Warming Solutions Act, also known as AB 32, which required ARB to prepare a scoping plan to reduce GhG emissions to 1990 levels by the end of 2020. A ruling against ARB could have forced ARB to revise the Scoping Plan and freeze implementation of its GhG regulations.

Continue Reading California Appellate Court Greenlights Air Resources Board’s Cap-And-Trade Program [1]

By Whitney Hodges

On January 27, 2012, the California Air Resources Board (“ARB”) notched a potential victory in the battle against greenhouse gas (“GhG”) emissions. In a unanimous vote, ARB adopted the Advanced Clean Cars (“ACC”) regulatory package, which is a program designed to deliver cleaner air, reduce GhG emissions, and help build the market for fuel cell and battery-electric vehicles. At the opening of the ARB hearing on this historic vote, Mary Nichols, ARB Chairman, predicted:

Continue Reading California Adopts Revolutionary New Clean Car Standards

By Heather Plocky and Olivier Theard

California’s effort to reduce the carbon footprint of producers and refiners of fuel has hit a snag. Shortly after the passage of the Global Warming Solutions Act (AB32), requiring reduction of greenhouse gases to 1990 levels by 2020, former California Governor Arnold Schwarzenegger signed an Executive Order setting a statewide goal of reducing "the carbon intensity of California’s transportation fuels by at least 10 percent by 2020." Pursuant to this Executive Order, the California Air Resource Board (ARB) adopted the Low Carbon Fuel Standard (LCFS) in June 2007 as an early action measure under AB32. In April 2010, the regulation was formally adopted. On December 29, 2011, District Judge Lawrence O’Neill in the Eastern District of California issued a preliminary injunction blocking ARB from implementing LCFS.

Continue Reading Enforcement of California Low-Carbon Fuel Standard Blocked

By Whitney Hodges & Olivier Theard

After months of CEQA litigation and political lobbying, including an appeal to the California Supreme Court (previous article can be found here), California’s landmark climate change bill, the Global Warming Solutions Act of 2006 (“AB 32”), has been modified and appears ready to be implemented starting in January 2012.

Continue Reading ARB Passes Final Regulations for Cap-And-Trade Program

By Randolph VisserOlivier Theard, & Whitney Hodges

This article is the latest in a series chronicling the first litigation challenge to AB 32 (the Global Warming Solutions Act) and the cap-and-trade program in Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, (“Ass’n of Irritated Residents v. CARB“).  Though environmental justice groups continue to object to cap-and-trade as the primary vehicle to reduce greenhouse (“GHG”) emissions to 1990 levels by 2020, the California Supreme Court recently allowed California Air Resources Board’s (“ARB”) cap-and-trade implementation to move forward, and agency rule development continues.

Continue Reading California AB 32’s Cap-And-Trade Program Developments

Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista, Docket No. D05779

By Jeff Forrest and Ashley Hirano


In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California’s "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance.   The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District’s CEQA Air Quality Handbook to conclude that the project’s air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non‑attainment for particulate matter pollution.

Continue Reading City’s “Business‑As‑Usual” Threshold OK For Evaluating Greenhouse Gas Emissions Under CEQA

American Electric Power Co., Inc. v. Connecticut (June 20, 2011, No. 10-174) __ U.S. __

By Robyn Christo & Micah Bobo

In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg (Justice Sotomayor recused herself, presumably because she heard the matter while sitting on the Second Circuit), the Court held that Congress’s delegation of the power to regulate greenhouse gasses to the Environmental Protection Agency (“EPA”), "displaces federal common law" relating to the abatement of carbon dioxide ("CO2") emissions.

Continue Reading Carbon Dioxide Emissions Not Subject to Federal Common Law Nuisance Claims