David Pettit is a senior attorney with the Natural Resources Defense Council, currently involved with the recent litigation around California’s Low Carbon Fuel Standard.
Tell me a bit about yourself.
I’ve been a litigator for about 35 years now. I was a legal services lawyer for a while, I was in private practice for many years following that, and I’ve been here at the NRDC for close to five years now. And a lot of litigation I do has to do with air pollution and environmental justice issues.
When I was in private practice I got involved in land use litigation which had environmental aspects to it. In part by accident, I wound up trying a couple oil spill cases, because of that I got involved here at NRDC in the Deep Water Horizon oil spill and I’m working on some litigation involving that.
What does the Low Carbon Fuel Standard (LCFS) mean for the state?
Under AB32, the Global Warming Solutions Act, California has to reduce greenhouse gases down to 1990 levels by 2020. The state has made a calculation of how much CO2 we need to get out of the air in order to do that. They got that number and they sliced it up and decided we’ll get so much from cap and trade, so much from direct regulation, so much from efficiency. They attributed around 15 percent of the tons that they needed to the LCFS.
Basically what it does is it incentivizes people who produce motor fuels to reduce the carbon intensity of their fuel. However they want to do that is up to them.
If you read the regulation on its face there’s no factor involving location. Everyone is treated the same regardless of where they are. In fact, one of the entities that comes out best under this formula are the Brazilian sugarcane ethanol producers even though they need to ship their stuff here by boat. At least in my view, the regulation itself has nothing to do with location. But the ethanol producers when they filed suit said this regulation makes it more expensive for [them] to do business in California than it would be for a California producer of exactly the same product. That’s their basic argument, saying that’s illegal under the commerce clause of the U.S. constitution, and a judge agreed.
The judge’s decision came out last week, and he also enjoined operation of the LCFS pending the outcome of whatever’s left of the case.
What’s in store for the LCFS after last week’s ruling?
I think a notice of appeal is being filed today, and so that will start the process in the 9th circuit. We, NRDC, is an intervener in the case so when I say we I mean us and the state, are also going to take steps to get Judge O’Neill’s injunction put on ice for the pendency of the appeal.
One thing people have been asking me about is whether this LCFS decision has any implication for AB32, the larger law itself. And if the decision is upheld the answer is yes, because I know the industry has argued that particularly the cap and trade part of AB 32 regulates out-of-state commerce. And I’m not saying I agree with that, but if the LCFS case is upheld I think that would make those folks’ arguments easier to sustain. And the amount of reduction the state expects to get out of cap and trade is roughly equivalent to what it expects to get out the LCFS.
Does the decision on the LCSF play into the federal decision on the Keystone XL pipeline?
It could in a kind of indirect way. As I said, nothing is called out in the regulation about location. But because it takes into account a life cycle analysis for the fuel, including the greenhouse gases from the production of the fuel as well as the combustion of the fuel, Canadian tar sands are going to come out pretty badly on the score board.
There was also, and what I’m about to say is pretty wonky, in mid December CARB changed part of the LCFS. The way the regulation initially treated [dirty fuels] was that it grandfathered in carbon intensity scores by the type of fuels. And no one liked that, including the oil industry. So there was this two-year stakeholder process and what CARB eventually said was [they’re] going to take the average carbon intensity right now for everything that comes into California. And if that [average] goes up, which would mean dirtier fuel was getting imported from wherever, then everyone in the refining industry is going to take a hit. It’s not just the one bad actor, everyone is going to take a hit in proportion to how much fuel you’ve brought into the state. That’s going to have an effect on Canadian tar sands. In a way it makes it easier on refineries who have been bringing it in in the past because the grandfathering starts now, but harder for refiners who want to bring it in in the future.
What are the hot button environmental issues for this legislative session?
I think you’re going to see a lot more CEQA-related legislation this session. There was a lot last year, we were involved with the stadium bill and somewhat involved in AB 900 which was an attempt to expand the litigation acceleration part of the stadium bill to other projects, though ultimately we didn’t support that. But I expect a lot more attacks on CEQA. I mean we see this every year, but they’ve been ramping up because of the recession. And I expect to see a lot of AB 32 and cap and trade related litigation coming up in the year.
On a lighter note, I read that you also play in a Klezmer band?
Yes, I play guitar and bass in a Klezmer band here in LA. I’m Jewish on my mom’s side and my wife’s Jewish. We took our kids to sort of a secular Jewish Sunday School for years and I was just hanging out with some of the other people, and I don’t know how it came up, but a few of us decided it would be fun to play some of this music. So we got together just for fun, and then somebody asked us to do a gig and it just took off from there. We play a few gigs a year. Nursing homes, weddings, bar mitzvahs, birthday parties. But you know our primary audience is 90-year-old ladies from the old country.