Fresno judge invalidates part of state's greenhouse gas law
By John Ellis - The Fresno Bee Thursday, Dec. 29, 2011 | 07:25 PM
A Fresno federal judge on Thursday dealt a setback to California's landmark global warming law, which went into effect this year with the goal of reducing the state's greenhouse gas emissions to 1990 levels by 2020.
U.S. District Judge Lawrence J. O'Neill ruled that California's Low Carbon Fuel Standard violated the U.S. Constitution's Commerce Clause.
The standard aims to gradually cut the carbon content in gasoline 10% by 2020 and replace up to 20% of the total gasoline used annually in the state with renewable fuels such as ethanol.
Several groups -- including the Fresno-based Nisei Farmers League and the Fresno County Farm Bureau -- filed a lawsuit in December 2009 that challenged the state regulation, saying it violated the Commerce Clause by seeking to regulate farming and ethanol production practices in other states.
A similar suit that involved oil production was filed last year by groups including the National Petrochemical Refiners Association and the American Trucking Association. It was later consolidated with the first lawsuit.
It was clear Thursday that O'Neill's ruling will be appealed. But what will happen to the state's greenhouse gas law wasn't clear -- representatives of both sides of the debate were still digesting O'Neill's complicated ruling.
In a joint statement released Thursday, Renewable Fuels Association President and CEO Bob Dinneen and Growth Energy CEO Tom Buis said California "overreached in creating its low carbon fuel standard by making it unconstitutionally punitive for farmers and ethanol producers outside of the state's border."
Renewable Fuels Association and Growth Energy are both organizations that represent ethanol producers. They were plaintiffs in the first case.
The state Air Resources Board and the Natural Resources Defense Council -- which intervened in the case on behalf of the state -- promised an immediate appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.
"We respectfully disagree with the court's decision," ARB spokesman Dave Clegern said in a statement.
He called the state's Low Carbon Fuel Standard "an evenhanded standard that encourages the use of cleaner low carbon fuels by regulating fuel providers in California. It does not discriminate against any fuels on the basis of geography."
The global warming law -- which was written in the state Assembly and is often referred to by its bill name, AB 32 -- sets a statewide limit on greenhouse gas emissions.
David Pettit, a senior attorney for the Natural Resources Defense Council, said a key decision will now be whether the 9th Circuit holds off on implementing O'Neill's order while it takes up the appeal.
If the appellate court lets the ruling stand while the appeal proceeds, he said it will be harder for the state to meet its goal of reducing greenhouse gas emissions.
"California's low carbon fuel standard will help reduce harmful air pollution from the fuels used by our cars and trucks, reduce our dependence in petroleum and protect public health," he said.
What O'Neill's ruling won't do, Pettit said, is completely derail the law.
Pettit said the Low Carbon Fuel Standard is only part of AB 32 and represents about 15% of all the greenhouse gas reductions that are part of the law.
He added that it hasn't generated the scrutiny of another part of the law -- the cap and trade program. That program limits the amount of carbon emitted by the state's biggest polluters and creates allowances that can be bought and sold on an open market.
In the original lawsuit, the groups including the Renewable Fuels Association and the Nisei Farmers League said "one state cannot dictate policy for all the others, yet that is precisely what California has aimed to do through a poorly conceived and, frankly, unconstitutional \."
As with the Low Carbon Fuel Standard, Pettit said he expects "a lot of litigation" coming on the cap and trade program that also will invoke the Commerce Clause and the argument that "California is trying to regulate out-of-state business."