There’s reason to rejoice that a California state judge issued an injunction on Friday against the state cap-and-trade scheme (C&T) proposed in 2006. For one thing, the case’s citation name is Association of Irritated Residents v. California Air Resources Board, and how often does that come along? Irritated v. CARB would make an awesome name for a rock band.
The judge, Ernest Goldsmith, allowed the other elements of the 2006 law (AB 32) to proceed as planned, so small businesses and truck drivers and others who will be drastically affected by its emission-curbing requirements have no prospect of relief. The important business of driving business out of California will proceed apace.
Of equal interest, however, is the basis for the judge’s decision to suspend the C&T plan. The Association of Irritated Residents brought the suit originally because the C&T plan is likely to do exactly what any sensible person would predict: place the greatest burdens on poor people. Besides causing their bills to necessarily skyrocket and eliminating their jobs, C&T would allow high carbon emitters – which are located disproportionately in lower-income areas – to essentially buy “permits” (unused carbon allowances from others) to continue emitting. Even if you don’t think it’s a burden to have lots of carbon dioxide emitted in your neighborhood, the argument that the impact will be unequal between income groups is sound.
But that argument was not the one adduced most directly by Judge Goldsmith. His decision made reference instead to the requirements of the California Environmental Quality Act (CEQA) of 1970, and determined that the California Air Resources Board (CARB), established in 1967, had failed to comply with them in its preparation of the Scoping Plan for implementing the C&T scheme under AB 32. In particular, CARB had failed to adequately study alternatives to instituting C&T, as required by CEQA.
Goldsmith actually issued his original ruling in that regard in January. In the months since, CARB has failed to address his concerns: in multiple efforts at turning in better homework, it has yet to prove to his satisfaction that it has given adequate consideration to alternatives to C&T.
Having the judiciary play the role of referee in this regard works – at least partly – to the advantage of sanity in this case. So that part is good. What’s ridiculous is having a body of law and a bureaucratic apparatus so convoluted that it swings tentacles around and grasps itself by the neck and squeezes.
It is equally absurd to tolerate judges deciding whether boards or commissions have “adequately” complied with a regulatory requirement like “studying alternatives.” I’m not complaining about the decision in this case, mind you, but from the reasonable man standpoint, how would the judge know what’s “adequate”? In the case of a public policy issue with extensive technical aspects and major impact for dozens of constituencies, there is no such thing as a single standard of adequacy for the studying of alternatives. The judge is merely expressing the opinion of one citizen about what constitutes an “adequate” effort to study alternatives.
If Americans genuinely think that we should turn such decisions over to the judiciary, we have completely lost touch with the meaning of limited, constitutional, consensual government. The truth is that decisions about whether policy alternatives have been studied adequately belong, in joint trust, to the legislature and the executive. Judges should not be refereeing such disputes. There is no such thing as absolute truth or even constitutionality when it comes to “adequate studying”; there is only preference and opinion. A judge doesn’t know any better whether the alternatives for environmental policy have been studied adequately than my state senator and representative do – or than I do, or my neighbors do, for that matter.
“Adequacy” in the studying of policy alternatives is precisely the kind of thing that should be voted on – not decided by a judge as if the law has some enduring standard to measure it by. We have a very wrong idea of law if we think it is a judicially-refereed mechanism for edging toward the “right” answers about everything in life. There are many, many things in life that are a matter of preference and opinion – and since we don’t all agree on them, government and law should obtrude on our arrangements in those areas as little as possible.
When the law is in proper relationship to the people, the scope of the judiciary is very limited, but actually more meaningful to the enterprise of “good government.” Today, we have a body of law so huge and burdensome that it has started going 15 rounds with itself on a regular basis, and the judiciary acts as a referee on intricate and inherently political questions of policy.
It is possible to think in different terms, and to conceive of a regimen of law and jurisprudence much more like that envisioned by the Founders. Americans need to wake up and recognize that accepting the way things are done now makes us importunate, dependent, and increasingly unfit to govern ourselves.