Dan Morain

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Dan Morain: Valero's revenge foils AB 32 implementation

Published: Thursday, Jan. 12, 2012 - 12:00 am | Page 11A
Last Modified: Thursday, Jan. 12, 2012 - 10:04 am

Forgive Valero and other oil producers if they're feeling a little bit smug.

A little more than a year ago, the Texas oil company spent $5 million to promote an ill-advised initiative to upend California's Assembly Bill 32, the landmark 2006 legislation that seeks to force a reduction in greenhouse gases.

Californians showed their environmentalist bent by rejecting the measure, Proposition 23, a verdict with which I totally agreed. But the fight didn't end with the drubbing at the polls.

U.S. District Judge Lawrence J. O'Neill of Fresno rang in 2012 by siding with an oil industry association whose members include Valero and striking down one important aspect of AB 32, California's so-called low carbon fuel standard.

In January 2007, then-Gov. Arnold Schwarzenegger signed an executive order directing creation of the standard, and predicted it would cut gasoline consumption by 3.2 billion gallons a year.

A fawning appointee proclaimed that Schwarzenegger was the "terminator of greenhouse gases," and he landed on Newsweek's cover a few months later.

The glitz aside, California's low carbon fuel standard is an incredibly complex set of regulations, probably an overreach of the state's authority, and could end up delaying the otherwise righteous goal of reducing greenhouse gas.

"It is a harbinger of legal challenges to come" over state environmental laws, said Richard M. Frank, a UC Davis law school professor. Frank agrees with the goal of cutting greenhouse gases, but said: "This constitutional fight has been looming for some time."

The low carbon fuel standard has the laudable goal of reducing the carbon content of fuel and the amount of energy required to produce and transport it to market.

In adopting the standard, the California Air Resources Board members turned up their collective noses at ethanol distilled outside California because of the environmental toll its production takes. The board also concluded that some types of petroleum, such as that which comes from Canadian oil sands, is a little too crude for our market.

California officials have every right to regulate emissions that directly affect California, especially when Congress fails to deal with environmental threats on a national level, as it often does.

California led the country by forcing the elimination of lead, benzene and other poisonous chemicals from gasoline sold in this state.

However, O'Neill concluded that California cannot control the actual manufacturing of fuel outside California without violating the commerce clause of the U.S. Constitution.

The state has appealed and is confident of prevailing, Air Resources Board spokesman David Clegern said.

But by implementing the exotic low carbon fuel regulation, the state invited litigation that, in turn, will delay the implementation of AB 32.

Legislators had contemplated that an enforceable standard would be in place two years ago. Given the speed at which courts operate, the issue might not be resolved for another two years.

Oil companies aren't about to roll over.

"The more costly it is to do business, the less business is going to get done," Valero spokesman Bill Day told me.

Day was not in a mood to gloat about the court victory. But Charles T. Drevna was much less diplomatic. He is president of the National Petrochemical and Refiners Association in Washington, D.C., which was a plaintiff in the suit and represents oil producers including Koch Industries, Valero and Tesoro.

"California voters can do a lot, but they can't overturn the Constitution," Drevna said.

Drevna dismissed talk of alterative fuel, said California should reconsider its ban on offshore oil drilling and derided the low carbon fuel standard as being part of an "anti-fossil fuel agenda."

"The low carbon fuel standard is a giant energy tax and fuel rationing scheme that will be forced on anyone who owns a car or truck," he said.

If O'Neill's ruling stands on appeal, its implications could extend beyond low carbon fuel, perhaps calling into question the state law restricting utilities from buying electricity from out-of-state coal-fired plants, and the incredibly complex cap-and-trade system.

Adopted last year, cap and trade is supposed to reduce carbon emissions by establishing a market in which carbon producers such as oil companies buy credits against emissions from, say, forestland owners.

Any litigation would have implications for state finances. In his proposed budget, Gov. Jerry Brown anticipates generating $1 billion from auctioning carbon credits to pay for environmental projects.

All this said, California policymakers should push for carbon reductions that directly benefit Californians. But they should keep it simple.

They could, for example, jettison traditional internal combustion vehicles from the state fleet, and replace them with hybrids and electric vehicles. Granted, that's not the sort of policy that lands politicians on magazine covers. But it's not as if the fancy low carbon fuel standard has lowered any carbon.

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