Until recently, Association of Irritated Residents v. California Air Resources Board proceeded along the litigation path as smoothly as any environmental challenge might. However, things took an unexpected twist last week that has left unanswered questions and many spectators baffled.
On March 18, 2011, Judge Ernest Goldsmith of the San Francisco
County Superior Court suspended implementation of AB 32,
California's landmark law to reduce greenhouse gas emissions.
In Association of Irritated Residents v. California
Air Resources Board, Judge Goldsmith determined that the
California Air Resources Board ("ARB") failed to properly
consider alternatives to the highly touted, yet controversial, cap
and trade program. (Previous article here.)
On May 20, Judge Goldsmith issued his final ruling (the "final
order"), which is significantly narrower in scope than the
March 18 statement of decision. The final order set aside ARB's
approval of the Climate Change Scoping Plan only "as it
relates to the cap and trade" program and enjoined "any
further rulemaking and implementation of cap and trade" until
ARB is in compliance with the California Environmental Quality Act.
While this mandate blocked any activity related to the cap and
trade program, it left the other measures of AB 32 unaffected.
(Previous article here.)
As of June 2, ARB had filed an appeal with the First Appellate
District of the California Court of Appeal and petitioned for a
writ of supersedeas, or a stay, of the trial court's AB 32
injunction. At this point, the litigation became much more
convoluted and opinions regarding the injunction began to diverge.
ARB interpreted Judge Goldsmith's writ of mandate to be
mandatory, which meant the injunction would be automatically stayed
on appeal. Judge Goldsmith intended his writ of mandate to be
prohibitory, which meant the injunction would remain in effect
until a court of appeal determines otherwise. When ARB voiced its
intention to continue with development of the cap and trade program
based on its belief the writ was mandatory, the Association of
Irritated Residents ("AIR") motioned for a hearing on
ARB's apparent violation of the final order.
On Friday, June 3, the Appellate Court quietly issued a temporary
stay of the final order's injunction.1 This ruling
has important consequences as it will allow ARB to proceed with
further rulemaking and implementation of cap and the trade program
pending the Appellate Court's consideration of Judge
Goldsmith's underlying order.
As demonstrated during a hearing on Monday, June 6, neither Judge
Goldsmith, nor ARB's lead attorneys, appeared to have been
notified of the Appellate Court's important recent
determination. At this hearing, the AIR petitioned Judge Goldsmith
to hold ARB in violation of the final order. Judge Goldsmith agreed
with AIR, chastising ARB for "refusing to halt any
implementation and development of the cap and trade program"
and ordering sanctions against ARB for the alleged violation. In
addition, Judge Goldsmith scheduled another hearing for Monday,
June 13, and ordered the Chair and Executive Director of ARB to
appear before him for questioning. The Judge even went so far as to
command ARB to obey his final order "until a higher court
tells [him] differently."
As it stands, a higher court had already told Judge Goldsmith
differently! In this battle of the dueling orders, the Appellate
Court's stay order trumps the final order's injunction.
Presently, it is not clear whether Judge Goldsmith will require
next week's hearing to remain on calendar or whether he will
continue to impose sanctions against ARB.
The cap and trade program is slated to take effect on January 1,
2012, and the Appellate Court's stay, if it stands, increases
the likelihood of this occurring.
In its June 3 order, the Appellate Court directed AIR to serve its
opposition to the temporary stay on or before June 20.
Footnotes
1. STAY ORDER: "Pending this court's consideration of appellants' Petition for Writ of Supersedeas, enforcement of the superior court's Peremptory Writ of Mandate, dated May 20, 2011 issued in Association of Irritated Residents et al. v. California Air Resources Board et al., San Francisco County Superior Court Case No. CPF-09-509562, is temporarily stayed. Appellees are directed to serve and file points and authorities in opposition to the petition for writ of supersedeas on or before June 20, 2011. (California Rules of Court, rule. 8.112(b).) In addition to addressing all the issues raised in the petition, appellees shall inform the court of any further orders issued by the San Francisco Superior Court at or after its June 3, 2011 hearing in this matter. Appellees shall also serve and file a copy of any such orders."
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