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Poet v. California Air Resources Board

ELR Citation: 43 ELR 20163
Nos. F064045, (Cal. Ct. App. 5th Dist., 07/15/2013)

A California appellate court held that the California Air Resources Board (CARB) violated the California APA and the California Environmental Quality Act (CEQA) when it adopted its Low Carbon Fuel Standards (LCFS) regulations to reduce the carbon content of transportation fuels sold, supplied, or offered for sale in the state. The court noted that CARB's task of creating the LCFS regulations was complex and presented many questions of science, economics, and law, and while its efforts to complete the LCFS regulations on time satisfied a vast majority of the applicable legal requirements, the agency ran afoul of several procedural requirements imposed by CEQA and the state APA. CARB violated CEQA by prematurely approving the LCFS regulations at a public hearing before the environmental review was complete, splitting the authority to approve or disapprove the regulations from the responsibility of completing the environmental review, and impermissibly deferring the analysis and formulation of mitigation measures for potential increases in the emission of nitrogen oxide resulting from the increased use of biodiesel. In addition, CARB violated the state APA by excluding from the rulemaking file made available to the public certain e-mails from consultants. The e-mails concerned the computer model used to calculate the indirect carbon emissions attributable to ethanol due to land use changes caused by the increased demand for the crops used to produce ethanol. Because these e-mails contain "other factual information" that was "submitted to" CARB, they should have been included in the rulemaking file. But while these procedural violations are not trivial, the court stopped short of vacating the regulations. Suspending the LCFS regulations could result in more environmental harm than allowing them to remain in effect pending the completion of CARB's corrective action. The court, therefore, ordered CARB to set aside its approval of the subject LCFS regulations but allowed the regulations to remain in effect pending CARB's taking action to comply with the statutes.