FRESNO – A California appeals court recently reversed a lower court’s decision to discharge a court order that had mandated the California Air Resources Board (ARB) to correct several violations of the California Environmental Quality Act (CEQA) it had committed when it attempted to implement the state’s low carbon fuel standards regulations (LCFS).
On May 30, the California Fifth District Court of Appeal ruled that a trial court had erred when it vacated the court order.
The most recent litigation focuses on which baseline ARB should use to measure nitrogen oxide (NOx) emissions in California.
ARB argued that it should use 2014 as a baseline because it believed that only regulations it had put in place in 2015 needed to be corrected. The appeals court, however, held that the board should have used the year it began its environmental review, which was 2009.
”ARB’s use of 2014 NOx emissions as the baseline was improper and generated flawed results when that baseline was plugged into the formula for calculating environmental change,” the appeals court said in its decision. “Specifically, NOx emissions in 2014 were higher than the NOx emissions prior to the 2009 approval of the LCFS regulations, which caused ARB’s most recent calculations of the yearly changes in NOx emissions to be too low and thus misleading.”
The regulatory controversy stems from the passage of California Global Warming Solutions Act of 2006, which sought to reduce greenhouse gas emissions in the state to 1990 levels by 2020.
ARB implemented LCFS regulations in 2009 as part of the act.
The regulations use carbon intensity values to approximate greenhouse gas emissions generated from all stages of producing, transporting and consuming a fuel.
Most providers of petroleum and biofuels in California are subject to the reporting and carbon intensity value requirements of the LCFS regulations.
But as ARB attempted to implement the regulations, Poett LLC, a South Dakota-based ethanol producer, and James M. Lyons filed suit in December 2009, alleging that ARB had made faulty NOx emissions calculations in violation of CEQA and California’s Administrative Procedure Act of 2006 (APA).
ARB was initially ordered to fix its NOx calculations and review the impacts of biodiesel use on NOx emissions, but a trial court denied Poett’s suit and ruled in favor of ARB.
Poett appealed, and the appeals court reversed the trial court’s decision, ordering ARB to use a 2009 baseline and correct its CEQA violations. The court also refused ARB’s request to use a 2010 baseline for NOx emissions.