Court rules California's LCFS will remain in effect

By Erin Voegele | June 06, 2013

On June 3, California’s Fifth District Court of Appeal handed down a provisional ruling in the lawsuit filed by Poet LLC against the California Air Resources Board in regard to the state’s low carbon fuel standard (LCFS) program. According to court documents, the LCFS will continue to operate.

Poet originally filed the lawsuit in January 2012. It alleges that the environmental impacts of the LCFS were not adequately studied, and therefore the program should be discontinued.

The tentative disposition published by the court directs the superior court to issue a peremptory writ—or formal written order—that directs CARB to take several actions. It will instruct the board is to set aside its approval of the disputed LCFS regulations and its decision to defer the formulation of mitigation measures with regard to biodiesel NOx emissions. In the event CARB decides to reapprove the original or modified regulations, it is to select a decision maker and take action to assure the decision maker has full authority to approve or disapprove the regulations. The decision maker may not approve the original regulations or modified version of the regulations until after an environmental review is complete. The writ also directs CARB to commit to specific performance criteria if the formulation of any mitigation measures related bio biodiesel NOx emissions are deferred. Alternatively, if the board determines that mitigation is not required, it must make findings of fact supported by substantial evidence. CARB must also allow public comments on the issue of carbon intensity values attributed to land use changes, and respond to those comments before approving the LCFS regulations.

According to the court ruling, the LCFS regulations in effect for 2013 will remain in effect until corrective action is completed. CARB is also required to file an initial return with the superior court explaining what actions it will take to satisfy the writ’s requirements, including identifying who will act as the decision maker.

The court has invited comments on suggestions on ramifications that could result from implementing the requirements of the writ. Responses are due by June 11. According to the court, suggested revisions or proposed dispositions should be consistent with several assumptions, including the fact that the court has determined CARB violated the California Environmental Quality Act because when the LCFS regulations were approved for the purposes of CEQA in April 2010 the decision making function was split between the board and the executive officer. In addition, the court said CARB improperly deferred the formulation of mitigation measures for the increase in NOx emissions that could result from increased use of biodiesel under the LCFS. In addition, while the court said CARB’s decision to approve it the LCFS regulation and defer the formulation of NOx emissions increases from biodiesel are voided (set aside), that action does not suspend operation of the LCFS.

According to court documentation, it is interested in receiving comments on timing and deadlines, as well as the status quo determination. Specifically, the court asks if the LCFS regulation’s 2014 should be implemented even if the corrective action is not complete by the end of the year. Interested parties are also invited to comment on comment periods, NOx emissions and whether a specific deadline should be implemented for filing of the initial return.

“Today’s ruling is further support for the state’s momentum towards a lower carbon, more sustainable transportation fuel system.  The court clearly recognized the importance of the standard and the need to reduce carbon pollution, while protecting investments in alternative fuels that have already been made,” said Tim O’Connor, director of the California Climate and Energy Initiative in a press release published by the Environmental Defense Fund.