Senate Republicans Snookered on Global Warming Budget Deal

Senate Republicans are pounding their chests about the so-called concession they won in the California Environmental Quality Act after 52 days of obstruction. But if you ask environmental insiders and Democratic leaders what they got, they agree on one thing: the GOP was snookered. In fact, greenhouse gas protections may have even been strengthened by the Republican's move!

Here are the details:

1. Question:

The Republicans demanded changes in law to stop Jerry Brown and others from filing lawsuits against San Bernardino County development plans, oil refinery upgrades, and other projects that produce greenhouse gases (GHG’s). Does this language do that?

Answer:

The short answer is no. If anything, the language strengthens environmental protections for climate change impacts.

The language does two things:

a. First, it mandates new CEQA guidelines by 2010 that spell out what parties must do to "mitigate" (or address) the global warming impacts of their projects, something not required under current law;

b. And second, it states that inadequate analyses of greenhouse gas emissions otherwise regulated by the ARB under AB 32 for transportation projects funded under Proposition 1-B and flood control projects under proposition 1-E are not a basis for bringing lawsuits under CEQA.

Since the bill’s applicability is limited only to 1-B funded transportation projects and 1-E flood control projects, nothing in the bill affects the Attorney General’s current litigation related to San Bernardino County or any other similar CEQA enforcement actions he may bring in the future.

[NOTE: The AG has issued a settlement of the San Bernardino CEQA litigation so that entire issue is moot.]

2. Question:

The Republicans also said they wanted to stop all lawsuits against bond projects until 2012 when the AB 32 greenhouse gas regulations are adopted by the ARB. Does this language do that?

Again, the short answer is no.

As noted above, the language says parties can’t sue under CEQA for inadequate analyses of GHG emissions from Proposition 1-B transportation projects or 1-E flood control projects if those emissions otherwise are required to be reduced by regulations adopted by the ARB under AB 32. It sunsets in 2010 (not 2012, as the Republicans demanded.)

By 2010, BOTH the new requirements under the CEQA regulations AND any AB 32 regulations to reduce GHG’s both will be in place, thereby ensuring all projects are required to analyze and mitigate GHG’s.

3. Question:

What about the final "last-minute demand" from the Senate Republicans to add to the bill flood control projects under Proposition 1-E?

Answer:

The Senate Republicans missed the fact that the Legislature passed AB 1039 (Nunez) Chapter 31/Statutes of 2006 last session, which exempted most levee repairs funded under Proposition 1-E from CEQA through 2016 and set up a one-stop permit process for those levees.

4. Question:

Democrats said they wouldn’t deal on this issue as part of the budget. But they did. Did they "give away the store?"

Answer:

If "giving away the store" means getting stronger and more certain environmental protections for greenhouse gas impacts, so be it.

Democrats said they wouldn’t bargain away the environment for a budget deal, and they stuck to that pledge.
 
Let’s review the bidding:

a. The Republicans have agreed to a law that, for the first time, amends CA’s 35 year old Environmental Quality Act to require regulations addressing climate change for all projects to which it applies (housing, transportation, smokestack industries etc). Prior to this law, it was left entirely to the courts to decide whether or not climate change was an issue under the law, and what to do about it.

b. The Republicans also have agreed to a law that says if and only if the ARB adopts regulations to reduce GHG emissions pursuant from 1-B transportation projects and flood control projects pursuant to AB 32 by 2010, that particular basis can’t be used to sue under CEQA.

c. It would be unprecedented in its 45 year history for the ARB to adopt regulations governing emissions from transportation and flood control projects. However, even if it did, under AB 32 the regulations would have to achieve "the maximum technologically feasible and cost-effective" emission reductions from those projects, arguably a more stringent standard than CEQA’s "feasibility" standard.

Either way, under the new law, emissions from transportation projects and flood projects will have to be addressed both under CEQA and AB 32.

d. Republicans have agreed to a law that says nothing in its provisions relieves any party of its obligations under CEQA or any other law. That means regardless of whether a particular cause of action is suspended for two years, parties may still petition the courts to enforce CEQA on other bases (e.g. air pollution, diesel exhaust, public health impacts etc).

Photo courtesy Blogzilla.

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