On Friday, May 20, 2011, Judge Goldsmith of San Francisco Supreme Court issued a final order  (PDF) with respect to a lawsuit challenging the environmental review of the Cap and Trade regulations created under California’s AB 32 Greenhouse Gas statute and the associated Scoping Plan. In its order, the Court enjoined the Cap and Trade portion of the Scoping Plan.

This revised final order is narrower than the draft order previously circulated in March.  The order applies only to the Board Regulation O8-47  and Executive Order G-09-001 (approving the climate change scoping plan) as they relate to Cap and Trade; and the Cap and Trade regulations themselves Regulation 10-42.  The Executive order enjoins the California Air Resources Board (CARB) from:

“[e]ngaging in any cap and trade-related Project activity that could result in an adverse change to the physical environment until ARB has comes into complete compliance with ARB’s obligations  under its certified regulatory program and CEQA, consistent with the Court’s Order.  This includes any further rulemaking and implementation of cap and trade especially but not limited to any action in furtherance of California Cap and Trade Program Resolution  10-42.”

Keep in mind, this lawsuit was filed challenging a CEQA type document which is procedural in nature.  Thus, once CARB revises the environmental document in the manner required by the court and it is determined to be sufficient at the time the writ is returned, the project may go forward.  Additionally, in the interim, those portions of AB 32 that are not related to Cap and Trade, such as mandatory reporting, are still in effect pursuant to the Implementation Schedule.

In the interim, it will be interesting to see whether various interests will attempt to make changes to the Cap and Trade program.  The Sierra Club has already come out in favor of changes related to emissions levels and environmental justice issues. 

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Photo of Lee Smith Lee Smith

Lee N. Smith focuses his practice on land and natural resource regulation and development, environmental compliance, water law, and litigation. He is experienced in federal and state water quality, air quality and hazardous materials compliance issues, including environmental due diligence projects for mining…

Lee N. Smith focuses his practice on land and natural resource regulation and development, environmental compliance, water law, and litigation. He is experienced in federal and state water quality, air quality and hazardous materials compliance issues, including environmental due diligence projects for mining and energy projects. He has handled cases before the Central Valley Regional Water Quality Control Board, the San Joaquin Unified Air Pollution Control District, and local environmental agencies. He has drafted and negotiated environmental provisions for complex agreements and assisted clients on due diligence issues. Lee has also been involved in state court litigation concerning pesticide contamination, the California Environmental Quality Act (CEQA), and Prop. 65 litigation, as well as federal litigation involving pesticide registration and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Lee Smith is a partner in our Sacramento and Fresno, California offices.

Practice Areas

  • Water Quality
  • Environmental and Natural Resources
  • Wine and Vineyard Law

Professional Associations

  • Fresno Chamber of Commerce, Environmental Issues Committee Counsel
  • Citizen’s Advisory Committee to the San Joaquin Valley Unified Air Pollution Control District
  • California State Bar Association, Environmental Law Section, Chair

Education

  • University of Utah College of Law, J.D., 1988, William S. Leary Scholar, 1985-1986
  • Brown University, A.B. environmental studies, 1981

Bar Admissions

  • California