June 12, 2017

June 12, 2017

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California Court of Appeal Upholds Cap-and-Trade Program

On Thursday, April 06, 2017, California’s Court of Appeal for the Third Appellate District upheld California’s Cap-and-Trade Program, the cornerstone of California’s climate change policy, by a 2-1 vote.

In the case, California Chamber of Commerce et al. v. California Air Resources Board (case no C075930), plaintiffs challenged the Cap-and-Trade Program as an unconstitutional tax.  The California constitution requires the Legislature to adopt all taxes by a two-thirds vote in the Assembly and Senate.  AB 32, the bill that created the Cap-and-Trade Program, did not clear that threshold.  The Chamber of Commerce and other parties argued that AB 32 never authorized auctions to sell greenhouse gas emissions allowances, and even if it did the auctions conducted by CARB amount to the imposition of an unauthorized tax.  In response, CARB and various other amicus parties argued that the auctions are more akin to regulatory fees than a tax, which would be permitted under California law.

The court sided with CARB. In doing so, the court reasoned that no tax is imposed in part because (i) no covered entity is actually forced to buy allowances at auction and (ii) allowances have value to the owner (i.e., they can be sold, traded, or used for compliance).  By contrast, the court reasoned, taxes are compulsory and nothing of particular value is received in exchange for any particular tax payment.  The court was not persuaded by plaintiffs’ arguments that regulated entities are, in fact, compelled to buy allowances, since there is no “vested legal right to continue polluting” in California.  In other words, payments for allowances purchase that right to pollute.

An amicus brief on behalf of the International Emissions Trading Association has been filed, arguing (in part) that emissions allowances represent a form of property akin to a commodity. In reaching today’s decision, the Court of Appeal appeared to agree, holding that allowances sold by CARB are “valuable commodities” that confer “a valuable right to pollute.”

Today’s ruling is a victory for proponents of the Cap-and-Trade Program, and may reinvigorate California’s carbon market—at least in the short term. But today’s ruling also is unlikely to end the matter: lawyers for both sides have previously indicated they would appeal an adverse decision.  In addition, the California Legislature is currently considering whether to extend the program past 2020 (its current expiration date), and CARB is in the midst of overhauling its Cap-and-Trade Program regulations.  We will keep you apprised of these and other developments related to California’s Cap-and-Trade Program.

© 2017 Beveridge & Diamond PC

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About this Author

Brook J. Detterman, Beveridge Diamond, Climate Change Lawyer, Liabilities Law
Associate

Brook Detterman's practice encompasses both traditional environmental matters and emerging issues in the areas of energy and climate change. Brook's experience includes complex environmental litigation, transactional due diligence, and regulatory counseling, with a focus on the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other state and federal environmental laws. 

(781) 416-5745
Kenneth Finney, Beveridge Diamond Law Firm, Environmental Law Attorney
Principal

Mr. Finney’s 30-year career in California environmental law has given him extensive experience with California statutes and regulatory programs in the areas of hazardous materials, natural resources and worker safety. He also has extensive experience with land-use permitting and litigation and with environmental insurance recovery negotiations and litigation.

Mr. Finney’s environmental practice has included: Environmental, Health and Safety counseling; RCRA, CERCLA and Cal Hazardous Waste Control Act hazardous waste administrative actions and litigation; significant permitting, enforcement and variance proceedings before State departments and regional Air Quality and Water Quality Boards; administrative trials and appeals, including before the federal Environmental Appeals Board and EPA and CalOSHA administrative judges; local land-use permitting and litigation, including CEQA, related to large land-use projects such as backbone telecommunication projects and commercial retail developments; California Green Chemistry, Cal Uniform Trade Secrets Act, Cal Public Records Act and Prop 65 counseling and litigation.

415-262-4007