In April 2010, Utah, Arizona and New Mexico each took actions to limit the states’ plans to regulate GHGs. First, on April 13, 2010, a state judge in New Mexico issued a preliminary injunction preventing the New Mexico Environmental Improvement Board (“EIB”) from considering or adopting a rulemaking petition to cap GHG emissions until the court determines whether EIB is authorized, under New Mexico law, to regulate GHGs. Leavell v. New Mexico Envtl. Improvement Bd., N.M. Dist. Ct., No. D-506-CV-201000050, preliminary injunction issued Apr. 13, 2010). Plaintiffs, a group of state Congressmen, utility companies, and farming and petroleum-related associations, argued in their complaint that EIB may not regulate air contaminants, including GHGs, until EIB “determine[s] the quantity and duration at which that air contaminant becomes ‘air pollution,’” which determination, they argued, EIB makes by adopting an ambient air quality standard for the contaminant. Because no ambient air quality standard for GHGs has been set, plaintiffs asserted that EIB may not entertain or adopt the rulemaking petition.
Then, on April 21, 2010, Utah Gov. Gary Herbert (R) confirmed to reporters of the Salt Lake Tribune newspaper that Utah will not begin participating in the Western Climate Initiative (“WCI”) cap-and-trade program in 2012, the year WCI will begin the program. Lawmakers in the state have not enacted regulations required for implementation of the program, the governor’s energy advisor reported, and thus, she said, “we’re simply not in a position at this time to implement cap-and-trade.” Utah will remain part of the WCI, however.
Finally, on April 26, 2010, Arizona Gov. Jan Brewer (R) signed a bill prohibiting state regulators from adopting or enforcing any state program to regulation GHG emissions without the express authorization of the state legislature. The bill, H.B. 2442, effectively reverses a 2006 Executive Order issued by former Gov. Janet Napolitano (D), in which she granted the state Department of Environmental Quality the authority to adopt and implement a program for reducing GHG emissions from vehicles.
The order in Leavell v. New Mexico Envtl. Improvement Board is available at http://www.pnm.com/news/docs/2010/0113_preliminjunct_granted.pdf
More information on Utah’s WCI participation is available at http://www.sltrib.com/news/ci_14931754
Arizona H.B. 2442 is available at http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/laws/0152.htm