California asks appeals court to lift ban on low-carbon fuel standard

Source: Debra Kahn • E&E  • Posted: Tuesday, February 14, 2012

California regulators have asked a federal appeals court to lift the injunction on their low-carbon fuels program.

The Air Resources Board filed a motion in the 9th U.S. Circuit Court of Appeals on Friday, arguing that a delay in its program to lower the carbon content of transportation fuels would hurt the public as well as fuel producers that are making investments in alternative fuels.

“There is no question that the state of California is being, and will continue to be, irreparably injured absent a stay,” Attorney General Kamala Harris wrote, citing the Supreme Court’s 2007 decision in Massachusetts v. EPA. “Delaying the LCFS at its key roll-out phase disrupts the planning and expectations of regulated parties and regulators alike, creates uncertainty about whether other regulatory mechanisms will now be needed to replace the LCFS, and interferes with the state’s ability to achieve the goals of its overall climate program.”

The fuel regulation, in force since last year, is designed to lower the carbon content of fuels sold in the state by 10 percent by 2020. It accounts for about 10 percent, or 16 million metric tons of carbon dioxide, of the state’s overall goal of reaching 1990 greenhouse gas emissions levels by 2020.

U.S. District Court Judge Lawrence O’Neill in Fresno ruled in December that the program violates the Constitution’s Commerce Clause, which prohibits states from discriminating against interstate trade. The regulation assigns carbon scores to each type of fuel, and most ethanol from the Midwest has a higher score than California-produced ethanol, in part because it is transported over greater distances and uses different electricity sources.

Last month, O’Neill rejected the Air Resources Board’s request that he lift his injunction, saying it would defeat the purpose of his ruling (Greenwire, Jan. 24).

ARB filed its appeal of O’Neill’s original decision in the 9th Circuit on Jan. 5.