Manatt Division Chair Interviewed on Cap-And-Trade Allowances Dispute
"Close Cap-And-Trade Ruling Likely to Fire Up Critics"
Law360
November 15, 2013 - Manatt's Craig Moyer, chair of the firm's Land, Environment & Natural Resources Division, spoke to Law360 about how a California judge's recent dismissal of lawsuits claiming the California Air Resources Board (CARB) exceeded its authority or imposed an illegal tax can spark further lawsuits.
Law360 reports that a Sacramento County superior judge recently released a decision finding that while the charges for the carbon-emission allowances as part of CARB's efforts to cut greenhouse gas emissions have attributes in common with both taxes and regulatory fees, they are overall more likely regulatory fees. He did, however, acknowledge that the dispute over whether the allowances are a lawful fee or an unconstitutional tax presented a "close question," thereby giving opponents fodder for an appeal in a fight that could jeopardize California's landmark cap-and-trade program.
Moyer told Law360 that while the Sacramento court's decision marked a win for CARB, the fighting over its allowances is far from over.
"CARB has to view this as a victory, but only in that an alternative decision would have been a crushing defeat," he said.
CARB, whose auction system is critical to its cap-and-trade program and its broader efforts to meet A.B. 32 targets, has much at stake.
"Because CARB has put so many eggs in the cap-and-trade basket, the disappearance of that basket challenges the continued success of the A.B. 32 program," Moyer said. "If it can't get cap-and-trade done, where are those emission reductions going to come from?"
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