Environmental Groups Bring CEQA Challenges of CARB’s Amendments to the Low Carbon Fuel Standard

Earlier this week, two environmental groups sued the California Air Resources Board (“CARB”) for approving amendments (the “Amendments”) to the Low Carbon Fuel Standard (“LCFS”). CARB had voted to amend the LCFS on November 8, 2024, with the intent of lowering the carbon intensity of the fuel mix in California and encouraging the use of low-carbon transportation fuels. For more details on the LCFS Amendment changes, see Sidley’s Alert.

On December 18, 2024, Communities for a Better Environment (“CBE”), represented by Earth Justice, filed a Verified Petition for Writ of Mandate and Complaint for Injunctive Relief in the Fresno County Superior Court of California. The complaint argues that the Amendments “lock in decades of subsidies for polluting fuels without the required analysis and mitigation of their wide-ranging environmental harms.” The four claims allege various violations of the California Environmental Quality Act (“CEQA”):

1. The Final Environmental Impact Assessment (“EIA”) failed to accurately describe, disclose, analyze, and mitigate the environmental impacts, all without considering and adequately analyzing a reasonable range of alternatives.
2. CARB failed to respond to comments by CBE and other members of the public, including comments on the project’s “auto-acceleration mechanism” for modifying the program without formal rulemaking, changes to the carbon intensity benchmark, and various impacts from biofuels and hydrogen production and combustion.
3. CARB adopted invalid findings of fact and a statement of overriding considerations by simply attempting to “override” impacts where it had failed to adopt feasible mitigation measures.
4. CARB failed to recirculate the EIA after receiving significant new information from public comments. In addition, the Final EIA contained significant changes on which the public did not have a chance to comment.

In the same week, Defensores del Valle Central para el Aire y Agua Limpio, Food & Water Watch, and Animal Legal Defense Fund filed a Verified Petition for Writ of Mandate against CARB in the Fresno County Superior Court also challenging the LCFS Amendments. The complaint targets increased incentives for factory farms to use “avoided methane crediting”  to expand their operations and install anaerobic digesters, which the petitioners allege can have harmful effects particularly in the San Joaquin Valley.

The CEQA claims broadly parallel Earth Justice’s lawsuit, alleging that CARB violated CEQA by failing to (1) disclose, analyze, and mitigate all reasonably foreseeable impacts of the LCFS amendments; (2) adopt all feasible mitigation measures; (3) consider a range of reasonable alternatives, including an alternative scenario that eliminates LCFS credits for fuel derived from manure emissions; (4) recirculate the Draft EIA; and (5) adequately respond to comments in the Final EIA. The complaint also alleges that CARB adopted invalid findings of fact and a statement of overriding consideration.

Both lawsuits seek alternative and preemptory writs of mandate directing CARB to set aside both its approval of the Amendments and certification of the Final EIA and accompanying CEQA findings, and that CARB should be prevented from implementing the deficient requirements.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.