September 27, 2013

Greenhouse gas rules up in the air

By Anthony L. Francois Senior Attorney

Today is a big day for all things greenhouse gas, with the Intergovernmental Panel on Climate Change releasing its Fifth Assessment Report.  Earlier this week, the similarly named (but differently purposed) Nongovernmental International Panel on Climate Change released its latest report, Climate Change Reconsidered II: Physical Science.  These two reports provide contrasting views of the significance of industrial carbon dioxide in forcing climate change, as well as different forecasts of likely degrees of and impacts from climate change.

At PLF we are lawyers, not scientists, but of course legislators, regulators, and judges rely heavily on technical assessments of scientific questions such as the impact of industrial carbon dioxide emissions.  While that debate continues in our nation’s capitol, we are awaiting word whether the U.S. Supreme Court will accept two PLF cases dealing with federal greenhouse gas regulation – one challenging the listing of the polar bear under the Endangered Species Act, and the other challenging the US EPA’s endangerment finding related to carbon dioxide.

Here in California, we are also awaiting a ruling from the Sacramento Superior Court on our challenge to the AB 32 Cap and Trade Allowance Auction, in which California bureaucrats have imposed a multi-billion dollar fuel tax with no legislative or constitutional authority.  We are also challenging Plan Bay Area‘s invalid assumptions relating to greenhouse gas emissions from local transportation.

In all of these cases, it is critical for the courts to understand how existing greenhouse gas legislation and regulations actually work, in order to rule on how different and complex schemes cohere or conflict.  In this light, it is a little discouraging to read this recent opinion from California’s Third Appellate District, in which the court held that a Wal-Mart expansion (pause for obligatory leftist hissing) could not be approved because the city had not figured out the extent to which the expansion would change emissions at the store.

The remarkable thing is that this decision purports to be based on whether the expansion would prevent the state of California from reaching its overall emission reduction goals under AB 32.  The error in this approach, however, is that all of the emissions at the existing store (and the proposed expanded one) are already directly limited by the AB 32 Cap and Trade and other AB 32 regulations on refrigerants.  There is no need for the city to mitigate emissions for this project in order to meet the AB 32 objectives; the state is already doing so.

Unfortunately, the opinion gives no indication that the court is even aware that the state directly regulates these emissions under AB 32.  This disconnect between actions at the state and local level to regulation the same emissions will ultimately lead to far more economic and social harm than is already necessary under AB 32.

What to read next