CARB's "extreme" low-carbon fuel rules deemed unconstitutional

Ahh, the famous Commerce Clause of the U.S. Constitution (i.e., Article 1, Section 8). What doesn't it cover? According to U.S. District Judge Lawrence O'Neill, it covers the Low Carbon Fuel Standard (LCFS) rules put out by the California Air Resources Board (CARB) about the levels of carbon allowed in transportation fuel. CARB had issued a rule that, by 2020, the carbon footprint of gas and diesel fuel has to be reduced by 10 percent compared to 1990 levels. Sounds good, right? And it's in line with CARB's other carbon reduction efforts.

The problem, according to O'Neill's decision, is that the rule discriminates against some biofuels made outside California and crude oil. Um, isn't that kind of the entire point? To "discriminate" against these fuels in favor of fuels with lower carbon content? Nonetheless, the rule's "bias" is enough for some to label it "extreme," but we say it's going to take strong measures to reduce the amount of carbon we put into the atmosphere. CARB chair Mary Nichols recently called the LCFS "essential" and, back in 2007, then-candidate Barack Obama suggested taking California's LCFS (in the form they were proposed at the time) nationwide. O'Neill's decision is being called a "victory for refiners and ethanol producers."

What's kind of strange is that the decision does not technically invalidate the rules, just CARB's power to punish anyone who goes over the carbon limits. CARB plans to go back to court next week to get clarification and also to appeal to the Ninth Circuit Court.

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