July 23, 2013

Did a California court issue an intentionally ironic decision?

By Jonathan Wood Attorney

California’s Fifth District Court of Appeal recently held that the California Air Resources Board (CARB) approved new fuel standards before it completed a mandatory environmental review process. The California Environmental Quality Act (CEQA) requires agencies to consider the environmental impacts of their actions before they act. To accomplish that objective, it prohibits agencies from making decisions first and then going through a sham review. Because CARB’s environmental review for the new standards was precisely this sort of sham, it was illegal.

Yet the court didn’t declare the standards invalid. Instead, it has ordered that the regulations remain in force while CARB goes back to “perform” the environmental review and then “approve” the regulations. Its reason? To “avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”

Irony indeed. Instead, the agency will now go through the pointless exercise of performing an environmental review for a regulation for which it has not only already indicated its approval, but is already in force. That’ll teach it not to approve its regulations before performing the necessary review.

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