Temporary Stay Allows California's GHG Cap and Trade Program to Continue for Now

Posted on June 30, 2011 by Robert Wyman

By:  Bob Wyman and Aron Potash, Latham & Watkins LLP

The ultimate fate of California's greenhouse gas (GHG) cap and trade program is firmly in the hands of the judiciary and, for now, the program may continue. On June 3, 2011, the California Court of Appeal for the First Appellate District temporarily stayed a writ of mandate enjoining California from further work on its program until the State more fully analyzes the environmental impacts of alternatives to cap and trade. The writ of mandate was first issued in Association of Irritated Residents v. California Air Resources Board following the California Air Resources Board's (CARB) petition to the court for a writ of supersedeas. CARB's petition asks the court to both declare the trial court's writ of mandate automatically stayed upon CARB's June 1 appeal and, failing that, to issue a discretionary stay of the writ of mandate pending CARB's appeal. The June 3 ruling granted CARB a stay, although only a temporary one. The Association of Irritated Residents and other appellees have until June 20 to file a brief opposing CARB's petition for a writ of supersedeas. Perhaps unaware that the writ of mandate had been temporarily stayed, the court that issued the writ issued another order on June 6 declaring both that the writ was not automatically stayed upon CARB's appeal and that CARB violated the writ by continuing cap and trade implementation activities. Nonetheless, given the temporary stay, CARB is in the clear to continue implementation activities for now. For how much longer is a question that will be resolved as CARB's appeal and petition for a writ of supersedeas wind their way through the appellate court.



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