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California’s Proposed Early Action Climate Change Mitigation Measures: An Update on AB 32 Implementation

Beveridge & Diamond, P.C., April 25, 2007

For a printable PDF of this article, please click here.

On Friday, April 20, 2007, the California Air Resources Board (“CARB”) released its draft report entitled “Proposed Early Actions to Mitigate Climate Change in California.”  The CARB draft report was issued in tandem with a draft report on proposed early actions by the California inter-agency Climate Action Team (“CAT”), which is chaired by the California Environmental Protection Agency (“Cal-EPA”).  The CAT report is a supplement to the CARB report and provides a status report on climate change early actions being undertaken by other branches of the state government. These reports were issued as part of California’s ambitious rulemaking process to implement the Global Warming Solutions Act of 2006, better know as “AB 32.”  Public comments on the reports are due by May 7, 2007.

Proposed Early Actions are part of the AB 32 Implementation Process

The proposed early actions are the first of many deliverables required by AB 32, which established an aggressive timetable for CARB to develop a climate change regulatory regime.  AB 32 requires CARB to publish “a list of discrete early action GHG emission reduction measures” by June 30, 2007 (Cal. Health & Safety Code § 38560.5(a)); and CARB must adopt those measures as regulations by 2010 (id. at § 38560.5(b)).1

Other aspects of AB 32 are developing on a parallel track.  For example, by 2008 CARB must establish the 1990 baseline of statewide GHG emissions that then will become the cap to be implemented by 2020 (id. at § 38550).  By 2009 CARB must prepare and approve a “scoping plan” for achieving the requirement that California reduce its GHG emissions to meet the 2020 cap (id. at § 38561).  This scoping plan will be the template for the regulations that must be adopted by 2011 and enforceable by 2012 (id. at § 38562(a)).  For a more detailed overview, please see our Bulletin regarding AB 32.

CARB’s Proposed Early Actions to Mitigate Climate Change

The early actions to mitigate climate change that CARB proposed on April 20 are divided into three groups:

  • Group 1:  The three measures in Group 1 are the only ones proposed by CARB to meet AB 32’s “discrete early action” requirement.  CARB proposes to adopt (1) a low carbon fuel standard, which will require providers to ensure that the mix of fuels they sell in California meets, on average, a declining standard for GHG emissions; (2) restrictions on non-professionals’ use of high global warming potential refrigerants; and (3) standards for landfill gas collection and control systems.  CARB estimates that adoption of these measures will reduce GHG emissions a total of 13-26 MMT CO2E by 2020.
  • Group 2:  CARB is initiating work on the 23 other measures in Group 2, and may develop rulemaking relating to them as appropriate in the 2007-2009 timeframe.  These measure are not included in Group 1 because they “require additional analysis of emissions control technologies or costs.”  For this reason, CARB does not provide an estimates for the GHG reductions that could be achieved by most of these measures.  They include everything from reducing the use of PFCs in the semiconductor industry to manure management.
  • Group 3:  CARB has identified 10 conventional air pollution control measures that are scheduled for rulemaking in 2007-2009; these measures are aimed at criteria or toxic air pollutants but will have concurrent climate change benefits.

CARB used a number of screening criteria to determine which of the many early action measures it considered would be included in Group 1’s fast-track implementation process.  Chief amongst these were whether it was feasible to adopt them by 2009 and make them legally effective by 2010, as required by AB 32.  (See note 1 above.)  Other factors included technological feasibility, cost effectiveness, and sufficiently significant GHG emission reductions.  Those in Group 2 mainly failed the first of these criteria.

In response to comments at the April 23, 2007 Workshop, CARB Executive Officer Catherine Witherspoon repeatedly emphasized that CARB is pursuing the Group 2 and 3 measures as much as those in Group 1, but on a slightly slower timeline.  Altogether, the variety of early action measures being developed by CARB is quite broad.  When considered along with the other early actions that (a) are now underway by other state agencies as summarized in the CAT report, (b) CARB referred to CAT for development by other agencies, and (c) CARB is considering for later action, one begins to appreciate the great magnitude of this ambitious and fast-developing regulatory regime.  The early actions being considered in California touch on virtually every substantive and procedural aspect of the regulation of energy, transportation, land and water use.

Stakeholder comments on both the CARB and the CAT draft reports are due by May 7, 2007.  At the CARB Board meeting on June 20-21, CARB will adopt a list of discrete early actions to be published in time to meet the AB 32 deadline of June 30.  CARB intends to develop the published list of discrete early actions into regulatory form by late 2008, so that they are “on the books” and enforceable by AB 32’s deadline of January 1, 2010.

CARB held its first public workshop on its proposed early action measures on January 22, and there introduced the early actions now included in Group 1.  On Monday, April 23, CARB conducted a second early actions Workshop.  To view a copy of the joint presentation regarding the CARB and CAT reports, please click here. Following the first Workshop CARB received comments from 70 different stakeholders.  CARB grouped these suggestions into 24 that are under CARB jurisdiction, and another 48 that it referred to the CAT for consideration by other agencies that have jurisdiction over them (e.g., the treatment of GHGs in general plans and CEQA was referred to the CAT to be addressed there by the Department of Resources in conjunction with CARB).  These 72 additional measures are summarized in Appendices A and B to the CARB draft report. 

At the second workshop on April 23, CARB received many comments from a wide variety of stakeholders.  In general, the industries affected by the Group 1 proposals articulated concerns, and many NGOs urged CARB to move certain Group 2 measures to Group 1.  As noted above, additional public comments must be submitted by May 7.

Stakeholders are encouraged to participate in the rulemaking process now, lest the early action measures be developed without taking their practical considerations into account. 

For more information, please contact Nicholas W. van Aelstyn at NvanAelstyn@bdlaw.com, or (415) 262-4008.


1  That will be a separate rulemaking process; the discrete early actions are not written as regulations.  One can anticipate that the process of developing regulations embodying early actions will be expedited, given the work already done.  A 45 day period for public comment is provided after regulations are proposed for adoption by CARB at a Board meeting.  However, it is best to participate earlier in the process, as regulations rarely change at that stage.  After regulations are adopted by CARB, they must be processed by the Office of Administrative Law before they are included in the California Code of Regulations.  CARB has indicated that it is the length of this process that explains why only three of the many discrete early action measures that it is considering will be ready for adoption by the AB 32 deadline.