California Law to Curb Greenhouse Gases Faces a Legal Hurdle

By FELICITY BARRINGER

SAN FRANCISCO — California’s landmark law on curbing greenhouse gases, which is well on its way to taking effect, has hit a legal snag in the form of a tentative judicial ruling that state environmental regulators failed to follow legally required procedures.

Judge Ernest H. Goldsmith of San Francisco Superior Court issued a tentative opinion — a rarely used procedure that gives the prospective loser in the case a chance to make new arguments or take new actions before a final decision — saying that the rules creating a cap-and-trade system were adopted without proper analysis of alternatives.

It is unclear whether the decision, if made final, represents a major obstacle or just a speed bump as the regulations carrying out the 2006 Global Warming Solutions Act go into effect. Judge Goldsmith’s ruling was made on Jan. 24, but not publicized until Thursday.

The opinion focused on what he said were regulators’ procedural lapses. Referring to the California Air Resources Board, which last year approved the regulations to cut greenhouse gases, he wrote, “ARB seeks to create a fait accompli by premature establishment of a cap-and-trade program before alternative can be exposed to public comment and properly evaluated by the ARB itself.”

Poor communities, particularly in Southern California, have been leery of market-based systems of pollution control, believing that industries nearby would be able to pay for extra pollution allowances and continue to send dangerous chemicals into their neighborhoods.

While no one maintains that carbon dioxide is a hazardous pollutant dangerous to local communities, Alegría De La Cruz, a lawyer for the Center on Race, Poverty and the Environment, said that carbon dioxide rules often have “co-benefits” in terms of controlling other, more immediately toxic air pollutants. Creating different incentives or mandates for regulating carbon dioxide might thus be more beneficial for those communities, Ms. De La Cruz said.

Requiring an analysis of these questions before carrying out the cap-and-trade rules, she said, “doesn’t slow down or stop California from doing something that is good and transformative for the country. It just must be done right.”

Stanley Young, a spokesman for the Air Resources Board, said, “We are reviewing the tentative decision, and we’ll respond in the allotted time.”

The board’s response to Judge Goldsmith’s ruling is due Tuesday.