CARB lawsuit could end cap and trade

April 17, 2013

By Katy Grimes


Ding dong! Could CARB be dead?

The Pacific Legal Foundation filed a lawsuit yesterday against the California Air Resources Board challenging California’s cap and trade regulation.

The cap and trade program was created by CARB ostensibly as part of AB 32, California’s Global Warming Solutions Act of 2006.

“The regulation creates a quarterly auction program requiring many California employers to bid significant amounts of money for the privilege of continuing to emit carbon dioxide — or be faced with closing their doors in California, laying off their employees, and moving their businesses to other states,” the PLF explained in a press statement.

The PLF said the lawsuit challenges the auction process “as an unconstitutional state tax because it was not enacted by two-thirds majorities in both chambers of the Legislature, as required for new taxes by the California Constitution (Proposition 13 and Proposition 26).”

“The California Constitution is crystal clear that new state taxes require at least two-thirds approval in both chambers of the Legislature,” said PLF attorney Ted Hadzi-Antich. “The ‘cap and trade’ auction program is a new state tax that will generate billions of dollars of revenues for the state on the backs of California taxpayers. Because it was not passed by at least a two-thirds majority vote of the Legislature, it is unconstitutional. Case closed.”

We at CalWatchdog have been saying this for several years.

And CARB has tried to make it sound as if the cap and trade auctions have been a resounding success. They haven’t been.

Even more importantly, the overshadowing issue is the secrecy in which the auctions have been conducted by the state agency, and its refusal to publish any information about the bidders or the amounts of carbon credits they purchased.

But back to the PLF and the reason for the lawsuit.

“It is stunning that the tax was imposed by bureaucratic fiat,” Hadzi-Antich continued. “CARB wasn’t implementing any provision of AB 32 with the auction program for massive new revenues. It decided to raise billions of dollars for the state by making up a new tax out of thin air. In a representative democracy, we can’t have unelected bureaucrats grabbing legislative power and concocting burdensome new tax programs that siphon even more money from productive, private hands into an already bloated public sector.

“CARB’s auction program isn’t just unconstitutional, it’s also an assault on economic and environmental common sense,” Hadzi-Antich continued. “California cannot even hope to address global warming issues without widespread participation by other governments. Yet except for the isolated Canadian province of Quebec, no other governments are promulgating similar regulations. As the costs mount and businesses move out of California, other states will welcome them. There’s got to be a better, more rational way to deal with the issues than CARB’s all-too-transparent scheme to generate billions of dollars for the state through an illegal tax.”

Here is the lawsuit by the Pacific Legal Foundation.

We will stay on top of this exciting legal case.

For more about CalWatchdog’s CARB coverage, here is a link to our stories about CARB, and a link to stories about CARB’s cap and trade program.



Write a comment
  1. us citizen
    us citizen 17 April, 2013, 13:53

    Yes Yes Yes

    Reply this comment
  2. Ulysses Uhaul
    Ulysses Uhaul 17 April, 2013, 15:12

    Do you actually believe the greenies are going to roll over and die? These fees will prevail for “the kids”.

    Reply this comment
  3. double l
    double l 17 April, 2013, 15:36

    According to “Webster’s Encyclopedic Unabridged Dictionary of the English Language” 1989 Edition, a bureaucrat is ‘an official who works by fixed routine without exercising intelligent judgment’. One definition of bureaucracy is ‘excessive governmental red tape and routine’. Hopefully, the PLF can successfully challenge the CARB bureaucracy and then go after all tin horn bureaucrats and their bureaucracies who impose regulations, fines, fees, and whatever else they can extract from law abiding citizens. Our illustrative legislators will not impose any sanctions to limit their actions because they are all in on this ‘to the victor goes the spoils’. Don’t mind me as I dream of an unfettered free enterprise system.

    Reply this comment
  4. Ulysses Uhaul
    Ulysses Uhaul 17 April, 2013, 15:42

    Now CWD is attracting bad attitude intellectuals….if it wasn’t for the hard working drones at DMV, we would have chaos in the streets.

    Reply this comment
  5. Brown delta trout
    Brown delta trout 17 April, 2013, 15:48

    How many judges are they gonna have to pay off?

    Reply this comment
  6. Lee Welter
    Lee Welter 17 April, 2013, 18:59

    The Cult of Anthropogenic Climate Alteration is a bunch of true believers who cannot accept reality: their writhing will persist until your buckets of water have completed melted them.

    Reply this comment
  7. AB32 Fighter
    AB32 Fighter 18 April, 2013, 07:53

    Even if this lawsuit succeeds, the Dem supermajority will just push it through anyway.

    Reply this comment
  8. Dyspeptic
    Dyspeptic 18 April, 2013, 08:14

    The folks at Pacific Legal Foundation are world class litigators with notable wins at SCOTUS. However, on this issue they have a long row to hoe. CARB will just say “It’s not a tax, it’s a fee”. From the payers standpoint it makes no difference of course, but those room temperature IQ lawyers we call judges seem impressed by such sophistries. Good luck PLF, I know you are putting my donation to good use.

    Reply this comment

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