California’s greenhouse gas cap-and-trade program is due to be finalized within a few weeks, over widespread opposition and concern about its effects on California’s economy. Looking forward, California business and citizens groups are considering how and when to challenge the regulations in court. Below are some of the likely challenges and their strengths and limitations.
Final regulations in California are subject to judicial review, and may be challenged as being unconstitutional or inconsistent with the statute that authorized their development, or for conflicting with other federal or state statutes. In the case of the Air Resource Board’s cap-and-trade program, all of these objections are likely. A successful appeal can invalidate all or part of a new program, and sometimes requires an agency to start a new rulemaking process entirely.
Constitutionality
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