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Dream of Californication: Constitutional Questions Put the Brakes on the Nation's First Low Carbon Fuel Standard

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Dream of Californication: Constitutional Questions Put the Brakes on the Nation's First Low Carbon Fuel Standard Volume 22 Issue 1 Article 3 2011 Dream of Californication: Constitutional Questions Put the Brakes on the Nation's First Low Carbon Fuel Standard Morgan Brubaker Follow this and additional works at: https://digitalcommons.law.villanova.edu/elj Part of the Environmental Law Commons Recommended Citation Morgan Brubaker, Dream of Californication: Constitutional Questions Put the Brakes on the Nation's First Low Carbon Fuel Standard, 22 Vill. Envtl. L.J. 57 (2011). Available at: https://digitalcommons.law.villanova.edu/elj/vol22/iss1/3 This Comment is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Environmental Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Brubaker: Dream of Californication: Constitutional Questions Put the Brakes 2011] DREAM OF CALIFORNICATION: CONSTITUTIONAL QUESTIONS PUT THE BRAKES ON THE NATION'S FIRST LOW CARBON FUEL STANDARD I. INTRODUCTION While the federal government struggles to pass a comprehen- sive climate bill, California finds itself in the familiar position as a leader in clean energy and environmental policy by establishing the nation's first low carbon fuel standard (LCFS). 1 Standing in its way, however, are several lawsuits pending in the Ninth Circuit alleging that California's LCFS violates the United States Constitution.2 The plaintiffs in these lawsuits, including ethanol producers, corn farm- ers, and trucking associations, are all fighting to prevent unfavora- ble corn-ethanol regulations from decimating the corn-ethanol market in California, the nation's largest ethanol-consuming state.3 As the scientific community debates the facts surrounding the in- clusion of indirect land-use change in carbon accounting, the coun- try awaits a decision from the Eastern District of California on the important constitutional and environmental issues associated with state regulations of carbon emissions.4 1. See David Pettit, Industry Tries to Derail Progress in California, Again, SWITCH- BOARD (Feb. 4, 2010), http://switchboard.nrdc.org/blogs/dpettit/industry_tries toderaiLprogr.html (recounting other times California has been on cutting edge of environmental regulation); see also Alex Farrell & Daniel Sperling, Getting the Carbon Out, S.F. CHRON., May 18, 2007, available at http://articles.sfgate.com/2007- 05-18/opinion/17244866_1_low-carbon-low-carbon-fuel-carbon-intensity (assert- ing California as leader in environmental policy). 2. See Complaint for Declarative and Injunctive Relief, Rocky Mountain Farmers Union v. Goldstene, No. 109CV02234 (E.D. Cal. Dec. 23, 2009), 2009 WL 5421971 (claiming California low carbon fuel standard is unconstitutional); see also Com- plaint for Declarative and Injunctive Relief andJury Demand, Nat'l Petrochemical & Refiners Ass'n v. Goldstene, No. 10CV00163 (E.D. Cal. Feb. 2, 2010), 2010 WL 412389 (asserting claims of unconstitutionality against California regulations). 3. See Complaint for Declarative and Injunctive Relief, supra note 2, at *4 (stating allegations of damages resulting from California low carbon fuel stan- dard); see also Complaint for Declarative and Injunctive Relief and Jury Demand, supra note 2, at *5 (alleging irreparable harm resulting from California legislation). 4. See Todd J. Guerrero, Lawsuit: LCFS Violates US Constitution, ETHANOL PRO- DUCER MAG. (Jan. 4, 2010), http://www.ethanolproducer.com/article.jsp?article id=6246 (recognizing nationwide anticipation of decisions in both suits). (57) Published by Villanova University Charles Widger School of Law Digital Repository, 2011 1 Villanova Environmental Law Journal, Vol. 22, Iss. 1 [2011], Art. 3 58 VILLANOVA ENVIRONMENTAL LAW JouRNAL [Vol. XXII: p. 57 A. The Greenhouse Gas Problem The ill effects of excess greenhouse gasses (GHGs) in the at- mosphere have been studied and recorded in detail for decades.5 Their subsequent effects on global warming, however, have only re- cently become the subject of political and scientific debate.6 GHGs come in many varieties; some occur naturally while others are solely man-made.7 Carbon dioxide, which has long been labeled as one of the "worst" GHGs, is emitted into the atmosphere through both natural processes and human activities.8 The largest source of global carbon dioxide emissions is the combustion of fossil fuels such as coal, oil and gas, which are used predominantly in automobiles, power plants, and other industrial facilities.9 Since the Industrial Revolution in the 1700s, the combi- nation of industrial fossil fuel use and deforestation has increased carbon dioxide concentrations in the atmosphere dramatically, es- pecially compared to other forms of GHG emissions.o In assessing the current trends related to the fossil fuel emission of carbon diox- ide, the Fourth U.S. Climate Action Report recently concluded that carbon dioxide emissions increased by twenty percent from 1990- 2004, while methane and nitrous oxide emissions decreased by ten percent and two percent, respectively, due to a variety of technolog- ical, policy, and agricultural changes." 5. See Greenhouse Gas Overview, EPA, http://www.epa.gov/climatechange/ emissions/#ggo (last visited Dec. 29, 2010) (surveying historical greenhouse gas emission findings). 6. See Nick Hopwood & Jordan Cohen, Greenhouse Gasses and Society, UNIV. OF MICH., http://www.umich.edu/~gs265/society/greenhouse.htm (last visited Dec. 29, 2010) (acknowledging that global warming debate continues despite research showing that greenhouse gases adversely affect environment). 7. See id. (discussing different types of greenhouse gases). 8. See JOSEPH MICHAEL Hur & G. PERALTA, PRIMER ON HEALTH IMPACTS OF DEVELOPMENT PROGRAMS, 43-45 (Asian Development Bank 2004), available at http:/ /www.adb.org/Documents/Books/Primer-Health-Impacts/Transport-Sector.pdf (describing ways carbon dioxide can enter atmosphere). Aside from its negative effects on the atmosphere, carbon dioxide in the form of motor vehicle emissions can also contribute to cardiovascular disease, asthma and respiratory diseases, pul- monary diseases, and cancer in the human population. Id. 9. See Climate Change and Greenhouse Gas Emissions, EPA, http://www.epa.gov/ climatechange/emissions/index.html (last visited Dec. 29, 2010) [hereinafter Cli- mate Change and Greenhouse Gas Emissions] (detailing largest sources of carbon diox- ide emissions). 10. See id. (recounting historical increase in greenhouse gas emissions). 11. See Fourth Climate Action Report to the UN Framework Convention on Climate 4 Change, U.S. DEP'T OF STATE (2006), http://www.state.gov/g/oes/rls/rpts/car / index.htm (summarizing findings regarding recent climate change trends). https://digitalcommons.law.villanova.edu/elj/vol22/iss1/3 2 Brubaker: Dream of Californication: Constitutional Questions Put the Brakes 2011] DRFAM OF CALIFORNICATION 59 The transportation sector is the second largest source of car- bon dioxide emissions both in the U.S. and worldwide. 12 Nearly all energy consumed by transportation vehicles is petroleum-based. 13 Automobiles and light-duty trucks account for nearly two-thirds of all transportation sector emissions in the U.S.14 California alone is the fifteenth largest GHG emitter in the world, representing ap- proximately two percent of worldwide GHG emissions.15 Transpor- tation fuels are responsible for approximately thirty-eight percent of California's annual GHG emissions.16 Due to the continued increase in carbon emissions from trans- portation worldwide, identifying an effective strategy to reduce car- bon emissions from transportation fuel is a long-standing goal of the international community, the U.S. federal government, and state governments alike.' 7 Examples of current and proposed legis- lation targeting GHG reduction through future reductions in car- bon dioxide emissions include the International Kyoto Protocol; the United States Energy Independence and Security Act; the pro- posed Cap-and-Trade Bill; and the California Low Carbon Fuel Standard.' 8 B. The Biofuel "Solution" At the forefront of the new and proposed legislation is a man- dated increase in future use of biofuels. 9 "Biofuel" is a term 12. See Human-Related Sources and Sinks of Carbon Dioxide, EPA, http://www. epa.gov/climatechange/emissions/co2-human.html (last visited Dec. 29, 2010) (ranking transportation sector second in carbon emissions production). 13. See Climate Change and Greenhouse Gas Emissions, supra note 9 (describing different uses of petroleum in transportation). 14. See id. (impugning cars and trucks for majority of vehicle carbon emissions). 15. See Richard Plevin & Steffen Mueller, ProducingEthanol for Low-Carbon Fuel Markets, ETHANOL PRODUCER MAC., May 2007, at 140, 143, available at http://www. ethanolproducer.com/articlejsp?article-id=2960 (ranking California fifteenth among world GHG producers). 16. See id. at 143 (naming transportation sector as largest single GHG emitter in California). 17. See Climate Change and Greenhouse Gas Emissions, supra note 9 (emphasizing importance of decreasing carbon emissions). 18. See generally Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc. FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998); Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 (2007); American Clean Energy and Security Act of 2009, H.R. 3454, 111th Cong. (2009); California Low Carbon Fuel Standard, Exec. Order No.
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