There are a few lawsuits already filed to challenge some aspects of AB 32, California's Global Warming Solutions Act of 2006. One that I admire is Tesoro Refining and Marketing Company v. California Air Resources Board, filed in California state court (Sacramento).
Tesoro claims that forcing refiners to produce transportation fuel (gasoline) with 10 percent renewables (e.g. ethanol) is inconsistent with the AB 32 mandate to reduce GHGs because converting bio-mass to ethanol consumes essentially the same amount of energy as the energy contained in the ethanol produced. Stated another way, there is no GHG reduction, as GHGs are just shifted around. The argument is substantiated by studies that considered the agricultural energy requirements to plow, plant, fertilize, water, cultivate, harvest, transport, convert to ethanol, then transport the ethanol (by truck or rail) to gasoline blending locations. This could also lead to "leakage," whereby GHGs reduced in one geographic area are simply increased in another area. That would be the case with California gasoline where the crops for ethanol are grown and processed in another state. AB 32 requires the implementation the Low Carbon Fuel Standard, which includes the 10 percent renewables in transportation fuels.
That is a valid argument, and it will be quite interesting to watch this one play out.
Some car dealerships also sued the Air Resources Board over the proposed car mileage standards (Pavley standards), claiming the state cannot make rules where the federal EPA has set mileage standards (the pre-emption argument). That argument looked good under President Bush, but President Obama has ordered his EPA to effectively grant California’s request. Those lawsuits will be moot in short order.
Roger E. Sowell, Esq. Legal website is here.
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