Northern California Record

Tuesday, November 12, 2019

Preemptive strike legislation against Trump environmental policies advancing in state legislature

By W.J. Kennedy | Jun 21, 2017


SACRAMENTO – A proposal that would require state agencies to enforce environmental standards adopted under the Obama Administration, if those standards are rolled back under Trump, is headed for a floor vote in the Assembly by late September.

Having cleared the Senate with a substantial majority in late May, business leaders say SB 49 is loaded with concerns, including private rights of action, added costs to taxpayers for new hires needed at state agencies, and vague language open to numerous interpretations.

A policy advocate for the California Chamber of Commerce warns that if the proposal is adopted in her state, dire consequences could result.

“Two things we need are affordable housing and water in California,” said Louinda Lacey, policy advocate for California Chamber of Commerce. “Both will become more scarce if this legislation is approved.”

An analysis of the bill written by a coalition of business, real estate and agricultural groups working to stop the California legislation says that at its core SB 49 would require the state agencies to adopt standards that are “at least as stringent as” the baseline federal standards in the federal Clean Air Act, the federal Safe Drinking Water Act, the federal Water Pollution Control Act, the federal Endangered Species Act, and “other federal laws” defined as unidentified laws “relating to environmental protection, natural resources, or public health.” The bill would also prohibit a state agency from amending or revising its rules or regulations in a manner less “stringent” in its protection of workers’ rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.

Incorporating over 70 endangered species, including some insects, by the state agencies will alone require hundreds of extra hires.

“California agencies are not equipped with the manpower to handle all of these extra responsibilities,” Lacey said.

What’s more, the legislation allows for private rights of action against the state agencies and businesses, with one-way attorney fee provisions attached.

“The one-way attorney fee provision carries with it a huge incentive to bring action,” said Laura Brown, director of Government Affairs, California Citrus Mutual. “You’ll see an explosion of new cases.”

On the agency side, the legislation would authorize a person to petition a court for a writ of mandate to compel a state or local agency to comply with the adoption of the Obama-era standards.

On the business side, it would grant private rights of action against businesses not meeting Obama-era standards taking litigation in the state well “beyond the status quo,” according to the coalition analysis.

“The uncertainty created by the vague, broad, and ambiguous language in the bill would further negatively impact a business’ growth, employment, and investment decisions,” the analysis says.

The private right of action is similar to one allowed under the federal Resource Conservation and Recovery Act (RCRA), said Peggy Otum, partner at Arnold & Porter in San Francisco.

“California has a culture of getting everyone involved in environmental enforcement,” she said. “A California district attorney, for instance, can bring prosecute a business if the violation of some environmental standard gives it an unfair competitive advantage.”

Opponents of the bill are working with even the most progressive Assembly members to keep it bottled up there.

“The extra cost to the agencies with the passage of this legislation should be a disincentive to anyone to vote for it,” Lacey said.

Meanwhile, in Illinois, a nearly identical bill also is advancing – HB 1438.

While the regular legislative session has ended in Springfield, Ill. for the year, business officials there expect the pre-emptive environmental legislation to be back in January when the next regular session begins. The proposal currently sits in the Illinois House Environmental Committee awaiting action on a second amendment to the bill.

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Organizations in this Story

California Citrus MutualArnold and Porter LLPCivil Justice Association of California