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California Greenhouse Gas Law Faces Challenge

Wednesday, October 24, 2012 - 04:23 PM

(photo by Kevin Dooley via flickr)

(KALW - San Francisco) The future of California’s landmark greenhouse gas emissions law is being called into question.

Implementation of the law was delayed earlier this year by a U.S. District Court judge in Fresno, who ruled that the regulations violate the commerce clause of the U.S. Constitution. A three-judge panel of the Ninth U.S. Circuit Court of Appeals heard arguments from both sides of the debate last week.

At issue is the “Low Carbon Standard”—regulations that require fuel producers to meet California’s emissions standards, or pay a penalty in the state’s cap and trade system. Fuel, farm and trucking industry lawyers argue that the law violates the federal commerce clause because the law reaches across state borders, effectively favoring California-based producers over out-of-state competitors, whose fuel may not meet the state’s strict emission requirements.

The California Air Resources Board, the agency responsible for implementing the regulations, says the law is intended to reduce California’s greenhouse gas emissions to 1990s levels by the year 2020. Lawyers representing the state and environmental groups argue that the California law is the only way to reach these goals.

Sean Donahue, an Environmental Defense Fund attorney who presented oral arguments to the appeals court, said that at its core, the law is about regulating greenhouse gas emissions by focusing on the entire life cycle of the fuel. “It’s not based on where the fuel is from, but is based on the effect on the climate,” Donahue said.

Peter Keisler, a fuel industry attorney, told the court, “Even if there is no discrimination, you still have a regulatory scheme whose purpose is to penalize imports, to penalize out-of-state conduct in an effort to control in-state emissions.”

The three-judge panel asked tough questions during the appeal, including a focus on language in the law that seemed to point to favoring California employment and tax revenues.

"Isn’t this unambiguous evidence that the board was motivated by protectionism?” asked 9th Circuit Court Judge Mary Murguia.

The panel now moves on to consider the oral and written arguments in the case before issuing a written opinion, a process that could take many months.

 

 

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