Existing law sets forth various programs for the enforcement of environmental protection. Existing law makes legislative findings and declarations that it is in the public interest to provide the people of the state through the Attorney General with adequate remedy to protect the natural resources of the state from pollution, impairment, or destruction. Existing law authorizes the Attorney General to intervene in any judicial or administrative proceeding in which facts are alleged concerning pollution or adverse environmental effects that could affect the public generally.

This bill would create the Environmental Justice Fund, into which the Attorney General would be authorized to deposit moneys from various special funds, settlements, and penalties, as specified. The bill would require that the fund be used, upon appropriation by the Legislature, by the Attorney General to provide additional support for investigations and litigation intended to protect people and communities that endure a disproportionate share of environmental pollution. pollution and to promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

Existing law sets forth various programs for the enforcement of environmental protection. Existing law makes legislative findings and declarations that it is in the public interest to provide the people of the state through the Attorney General with adequate remedy to protect the natural resources of the state from pollution, impairment, or destruction. Existing law authorizes the Attorney General to intervene in any judicial or administrative proceeding in which facts are alleged concerning pollution or adverse environmental effects that could affect the public generally.

This bill would create the Environmental Justice Fund, into which the Attorney General would be authorized to deposit moneys from various special funds, settlements, and penalties, as specified. The bill would require that the fund be used, upon appropriation by the Legislature, by the Attorney General to provide additional support for investigations and litigation intended to protect people and communities that endure a disproportionate share of environmental pollution.

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 2636

SUBJECT: Attorney General: Environmental Justice Fund

ANALYSIS:

Existing law:

1. Provides for the enforcement of state, federal and local environmental law prosecution by “public prosecutors.”
2. Defines “Environmental laws” as state and federal environmental laws and regulations that impact public health and the environment including, but not limited to, those that regulate toxic and carcinogenic materials, water quality, air quality, waste management, pesticides, and wildlife resources.
3. Defines “Public prosecutor” as district attorneys, city attorneys, city prosecutors, county counsels, and the Attorney General and his or her deputies.
4. States that:
   1. The enforcement of California’s environmental laws is essential to protect human health, the environment, and the state’s economy.
   2.  Fair and uniform enforcement of laws and regulations governing the environment benefits law abiding businesses, firms, and individuals.
   3. There is a need to better integrate enforcement of environmental laws into California’s established criminal justice system.
   4. Local and state enforcement agencies can play an increasingly important role in protecting human health, the environment, and the state’s economy through greater involvement in the enforcement of environmental laws.
   5. Prosecuting violators of environmental laws often requires special training to detect violations, understand complex laws, and prepare and present complicated enforcement cases.
   6. There is a need to support programs that assist local and state enforcement officials in prosecuting violations of environmental laws through the training of peace officers, investigators, firefighters, public prosecutors, and state and local environmental regulators.
   7. Fair and uniform enforcement of environmental laws is multidisciplinary and involves law enforcement, fire departments, state and local environmental regulators, and the offices of local and state public prosecutors.

Bottom of Form

1. Establishes the Environmental Circuit Prosecutor Program (ECPP), a cooperative project of the California Environmental Protection Agency and the California District Attorneys Association to assist district attorneys across the state in environmental prosecution for the following purposes:
   1. Discourage the commission of violations of environmental laws by demonstrating the effective response of the criminal justice system to these violations, including, but not limited to, assisting district attorneys, particularly in rural counties, in the prosecution of criminal violations of environmental laws and regulations, where a district attorney has requested assistance.
   2. Establish model environmental crime prevention, enforcement, and prosecution techniques with statewide application for fair, uniform, and effective application.
   3. Increase the awareness and effectiveness of efforts to enforce environmental laws and to better integrate environmental prosecution into California’s established criminal justice system by providing on the job education and training to local peace officers and prosecutors and to local and state environmental regulators.
   4. Promote, through uniform and effective prosecution and local assistance, the effective enforcement of environmental laws and regulations.
   5. Provides that funding for the ECPP shall be provided by both public and private funds including penalties awarded in judgements from environmental prosecution.
2. Defines "environmental justice," for the purpose of the Governor's Office of Planning and Research's coordination of state agency programs, as the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.

This bill:

Establishes the Environmental Justice Fund (Fund), within the State Treasury, to fund the Attorney General’s efforts to protect environmental justice communities. Specifically, this bill:

1. Creates the Fund in the State Treasury and permits the Attorney General to deposit money into the Fund from the following sources:
   1. Various special funds;
   2. Settlements; and
   3. Penalties not otherwise required to be credited to another fund.
2. Provides that the Fund shall be used, upon appropriation, to support investigations and litigation that protect communities that endure a disproportionate share of environmental pollution and promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

Background

1. Early Environmental Justice Prosecution Efforts. In 1998, the California Environmental Protection Agency (CalEPA), the California District Attorneys Association (CDAA), the Department of Fish & Game, and the United States Environmental Protection Agency established the Environmental Circuit Prosecutor Project (ECPP) to fill a gap in the enforcement of water, air, and other environmental laws, especially in rural counties in California where the local district attorney may not have the resources or expertise to prosecute environmental laws.

The ECPP provides environmental prosecutors to counties that lack those expertise and resources to prosecute environmental crimes. Penal Code section 14300 codified the Environmental Circuit Prosecutor Project as a cooperative effort of the CDAA and CalEPA.

Circuit prosecutors are employed by CDAA but are deputized by the elected District Attorney in each county where they work. 

Funding is provided by various sources including CalEPA and the Penal Code 14300 account.

In the first four years (1998-2002) the ECPP processed over 700 environmental cases, both civil and criminal and obtained more than $15.6 million fines, penalties, cost, and supplemental environmental projects.

In 2001 the ECPP obtained more that $12 million in fines, penalties, environmental projects and cost recovery, opened 214 new cases and closed 173. A significant number of the ECPP’s cases were multimedia violations, complex litigation, team prosecutions that were coordinated efforts of state, local and federal agencies. One such case was the successful prosecution in the Westley Tire Fire.

However, federal funding was withdrawn from the ECPP and, primarily due to the recession state funding has dwindled, resulting in the ECPP not having robust funding to be able to provide as many support services to assist in the prosecution of these crimes across the state.

1. Bureau of Environmental Justice (Bureau). In February 2018, Attorney General Xavier Becerra announced the creation of the Bureau of Environmental Justice, within the Environmental Section of the California Department of Justice to focus on investigating and litigating environmental harms in environmental justice communities. This bill, would establish the Environmental Justice Fund (Fund) in the State Treasury to provide supplemental funds to the new Bureau to carry out investigations and litigation.

The Department of Justice's (DOJ) Environment Section currently defends California's environmental protection and natural resources agencies and prosecutes cases of environmental harm. The Attorney General established the Bureau within the Environmental Section to focus on prosecuting cases impacting communities that endure a disproportionate share of the state's environmental pollution and public health hazards. Once fully staffed, the Bureau is slated to emphasize investigating and litigating cases involving noncompliance with the California Environmental Quality Act, noncompliance with California's land use planning and zoning laws, remediation of drinking water, elimination of exposure to lead and other toxins in consumer products, and illegal discharges to air and water from facilities in environmental justice communities. Additionally, the Bureau will be tasked with opposing federal actions that repeal or reduce public health and environmental protections and advocating on behalf of private litigation to advance outcomes favorable to environmental justice.

Comments

1. Purpose of Bill. According to the author, “Justice should not be reserved for communities who can afford to investigate and litigate parties that break the law. By establishing the EJ Bureau, the Attorney General has taken the first step to dedicating resources to assist those communities who would otherwise continue to suffer poor health and environmental outcomes that are much more costly to the state if left unaddressed. Creation of an Environmental Justice Fund is a procedural step that will support this effort.”
   
2. Competing or Cooperative efforts? It is not clear how the DOJ Bureau will interface with the district attorneys and city attorneys of those communities where these environmental justice cases would be pursued. Further, it is unclear how this new bureau would interface with the state’s current ECPP program aimed at assisting local district attorneys prosecute environmental justice cases.

As written this bill creates competing programs rather than cooperation efforts between state and local environmental prosecutorial efforts. It seems highly likely that this creates the potential for state and local law enforcement to be working at cross purposes rather than working cooperatively for the effective prosecution of environmental violations.

Rather than create a whole new program that may be duplicative of the work that ECPP and CDAA have been statutorily tasked to do, it would have a greater impact to present a united front rather than competing and conflicting statutory directive.

In order to create the strongest environmental prosecution of environmental justice cases it would make sense to combine these two efforts creating a strong united front of local and state prosecutors by updating the ECPP to include DOJ’s new Bureau and include a consistent stream of funding to reinvigorate environmental justice prosecution.

Therefore, the bill should be amended to include the DOJ’s new Bureau as part of the ECPP and to update the ECPP statute to reflect the provisions of this bill related to fully funding environmental prosecution and the current terminology related to “environmental justice” communities to create a strong state and local partnership for environmental prosecution.

Related/Prior Legislation

SB 2486 (Keely, Chapter 1000, Statutes of 2002) codifies the Environmental Circuit Prosecutor Project, intended to discourage environmental law violations, with a fair, uniform, and effective statewide prevention, enforcement, and prosecution program, and to better integrate environmental prosecution into the criminal justice system, as specified.

SOURCE:

Attorney General Becerra

SUPPORT:

California Bicycle Coalition

California Environmental Justice Alliance

Center on Race, Poverty and the Environment

Communities for a Better Environment

National Association of Social Workers, California Chapter

OPPOSITION:

None received

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2636 (Author:Eduardo Garcia)

Version: April 18, 2018

Hearing Date: June 12, 2018

Fiscal: Yes

Urgency: No

Consultant: JDT

SUBJECT

Attorney General: Environmental Justice Fund

DESCRIPTION

This bill would create a fund that, upon appropriation, would be used for the Attorney General’s enforcement of environmental laws to protect and promote fairness in communities that endure a disproportionate share of pollution.

BACKGROUND

While pollution affects everyone,“[p]oor people bear the brunt of environmental dangers—from pesticides to air pollution to toxics to occupational hazards—and their negative effects on human health and safety. At the same time, poor people have the fewest resources to cope with these dangers, legally, medically or politically.” (Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law (1992) 19 Ecology Law Quarterly 619, 620.)

This bill would create the Environmental Justice Fund, into which the Attorney General may deposit available monies from special funds, settlements, and penalties. The bill would require the Attorney General to use money in the fund, upon appropriation, to support investigations and litigation to protect communities that endure a disproportionate share of environmental pollution, and to promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

CHANGES TO EXISTING LAW

Existing law provides that, subject to the powers and duties of the Governor, the Attorney General is the chief law officer of the State and has the duty to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., art. V, Sec. 13.)

Existing law provides that the Attorney General has direct supervision of every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, as specified. (Id.)

Existing law provides that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it is the duty of the Attorney General to prosecute any violations of law, as specified, and in such cases the Attorney General has all powers of a district attorney. (Id.)

Existing law provides that the Attorney General is the head of the Department of Justice. (Gov. Code Sec. 12510.)

Existing law provides that the Attorney General has charge of all legal matters in which the state is interested, except the business of the Regents of the University of California and of such other boards or officers that are by law authorized to employ attorneys. (Gov. Code Sec. 12510.)

Existing law contains the following legislative findings and declarations:

• it is the policy of this state to conserve, protect, and enhance its environment;
• it is the policy of this state to prevent destruction, pollution, or irreparable impairment of the environment and the natural resources of this state;
• it is in the public interest to provide the people of the State of California, through the Attorney General, with adequate remedies to protect the natural resources of the State of California from pollution, impairment, or destruction; and
• conservation of natural resources and protection of the environment are pursuits often beyond the scope of inquiry, legislation, or enforcement by local government; several local public entities existing in the same ecological community have acted in differing and, sometimes, conflicting manners; uniform, coordinated, and thorough response to the questions of protection of environment and preservation of natural resources must be assured; and these matters are of statewide concern.

Existing law authorizes the Attorney General to intervene in any judicial or administrative proceeding concerning pollution or adverse environmental effects which could affect the public generally. (Gov. Code Sec. 12606.)

Existing law provides that the Attorney General may maintain an action for equitable relief in the name of the people of the State of California against any person for the protection of the natural resources of the state from pollution, impairment, or destruction. (Gov. Code Sec. 12607.)

Existing law establishes the Public Rights Law Enforcement Special Fund in the State Treasury to fund, upon appropriation, the investigation and prosecution of any matter within the authority of the Department of Justice’s Public Rights Division. (Gov. Code Sec. 12530.)

Existing law defines “low-income communities,” for purposes of allocating the proceeds of the state’s cap-and-trade program to greenhouse gas reduction projects in disadvantaged communities, as census tracts with median household incomes at or below 80 percent of the statewide median income or with median household incomes at or below the threshold designated as low income by the Department of Housing and Community Development’s list of state income limits adopted pursuant to Section 50093. (Health & Saf. Code Sec. 39713(d)(2).)

Existing law defines “environmental justice,” for the purpose of the Governor’s Office of Planning and Research’s coordination of state agency programs, as the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. (Gov. Code Sec. 65040.12.)

This bill would create the Environmental Justice Fund, into which the Attorney General may deposit available monies from special funds, settlements, and penalties.

This bill would require the Attorney General to use money in the fund, upon appropriation, to support investigations and litigation to protect communities that endure a disproportionate share of environmental pollution, and to promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

COMMENT

1. Stated need for the bill

According to the author:

Justice should not be reserved for communities who can afford to investigate and litigate parties that break the law. By establishing the EJ Bureau, the Attorney General has taken the first step to dedicating resources to assist those communities who would otherwise continue to suffer poor health and environmental outcomes that are much more costly to the state if left unaddressed. Creation of an Environmental Justice Fund is a procedural step that will support this effort.

The sponsor of the bill, California Attorney General Xavier Becerra, writes:

Far too many California families have endured a disproportionate share of environmental pollution. The communities where these families live typically lack the resources to investigate or litigate cases that would address those environmental concerns and improve their health. These issues are often long-standing and complex, and can require significant time and resources to identity and address.

To help bring justice to these communities, the Attorney General recently established the [Environmental Justice] Bureau within the Environment Section at [the Department of Justice]. The EJ Bureau’s mission is to protect people and communities that endure a disproportionate share of environmental pollution through investigation and enforcement of violations of environmental laws.

There is currently, however, no dedicated special fund into which the Attorney General can deposit funds, such as settlement and penalty moneys secured by the EJ Bureau from environmental justice cases, for the sole purpose of providing additional support to the EJ Bureau. AB 2636 would create such a fund to help the EJ Bureau fulfill its mission and bring environmental justice to a significant number of Californians.

2. Environmental justice

Luke Cole, founder of Center on Race, Poverty, and the Environment, and a forefather of the environmental justice movement, wrote as follows:

It would seem a truism that poor communities have more hazardous environments than middle class and wealthy communities, and that poorer workers engage in dirtier, more dangerous work. After all, the typical inner city public housing project is generally not as ‘nice’ or clean a neighborhood as the standard tract home in the suburbs, and everyone knows that the boss in the air-conditioned office makes more money than the laborer working with deadly chemicals on the shop floor. Anecdotal horror stories abound in the media.

[…]

The conclusion drawn from these tragic anecdotes—that the poor suffer disproportionately from environmental hazards—is confirmed in local and national studies of the impacts of toxics production and disposal, garbage dumps, air pollution, lead poisoning, pesticides, occupational hazards, noise pollution and rat bites.

An important corollary is that people of color are exposed to more environmental dangers than white people. ‘California’s most toxic neighborhood lies wedged between the state’s largest black and Latino communities,’ begins one newspaper article, describing a neighborhood between South Central Los Angeles and East Los Angeles with a population that is 59% black and 38% Latino. This corollary is borne out by many of the studies examining environmental hazards in poor communities. In fact, race plays perhaps a more significant role than poverty in the siting of environmentally dangerous facilities. […]

Many interrelated factors contribute to today’s situation, including industry’s tendency to seek inexpensive land in low income neighborhoods as well as poor people’s lack of political and economic power in resisting such intrusions. The factors that have diminished certain communities’ ability to resist undesirable land uses and pollution include the racist exclusion of people of color from decision-making processes and decision-making bodies, racist and economic exclusion from ‘nicer’ neighborhoods, ‘expulsive zoning,’ the exploitation of workers’ immigration status, governmental neglect and design, and the ‘success’ of environmental laws. The disproportionate burden is not coincidental: low-income communities and communities of color are targets of waste dumpers and other developers.

Poor people and people of color also have the fewest resources with which to deal with environmental harms. They have the least mobility, both in terms of employment and residence, and thus, even in the face of toxic exposure, they usually cannot find new jobs or homes. And while they live with the greatest dangers, poor people and people of color have the least access to health care and often cannot get it at all.

Those most vulnerable, such as recent immigrants with poor English language skills, are concentrated in the most dangerous sectors of our workforce, agriculture and heavy industry. Poor people are also more likely than others to have multiple exposures to environmental dangers, facing more severe hazards on the job, in the home, in the air they breathe, in the water they drink, and in the food they eat. (Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law (1992) 19 Ecology Law Quarterly 619, 621-631; footnotes omitted, emphasis in original.)

The Office of Environmental Health Hazard Assessment (OEHHA), on behalf of the California Environmental Protection Agency, has developed a California Communities Environmental Health Screening Tool, known as CalEnviroScreen, that CalEPA uses to designate disadvantaged communities, as required by law. (OEHHA, CalEnviroScreen 3.0 < https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-30> [as of May 27, 2018].) CalEnviroScreen is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution. Although pollution affects all communities, CalEnviroScreen shows a strong correlation between disadvantaged or low income communities and higher levels of pollution.

According to OEHHA, approximately 8 million Californians (21 percent) live in zip codes that are considered “highly impacted” by environmental, public health, and socioeconomic stressors. Nearly half of all Californians live within six miles of a facility that is a significant greenhouse gas emitter (46 percent), and they are disproportionately people of color (62 percent). Throughout California, people of color face a 50 percent higher risk of cancer from ambient concentrations of air pollutants listed under the Clean Air Act. These impacts affect all Californians. The Air Resources Board estimates that air pollution exposure accounts for 19,000 premature deaths, 280,000 cases of asthma, and 1.9 million lost work days every year. The federal rollback of environmental regulations and climate change efforts, which the Attorney General has resisted through litigation, further threatens these communities.

3. The Attorney General’s Bureau of Environmental Justice

Existing law establishes the Attorney General’s Public Rights Division, which includes the Natural Resources Section, Land Law Section, Civil Rights Enforcement Section, and the Environment Section. The Attorney General recently established within the Environment Section a Bureau of Environmental Justice. The Attorney General states that the mission of the Bureau of Environmental Justice is:

to protect people and communities that endure a disproportionate share of environmental pollution and public health hazards. This will be accomplished through oversight, investigation, and enforcement of the law. The Bureau’s attorneys will work primarily with attorneys in the Environment Section handling environmental enforcement matters on behalf of Attorney General Becerra. They will also coordinate with and utilize the expertise of other sections within the Attorney General’s Office, as needed. (State Department of Justice, Attorney General Becerra Establishes Bureau of Environmental Justice <https://oag.ca.gov/news/press-releases/attorney-general-becerra-establishes-bureau-environmental-justice> [as of May 27, 2018].)

The Bureau’s oversight and enforcement work will focus on:

• ensuring compliance with the California Environmental Quality Act (CEQA) and land use planning laws;
• remediating contaminated drinking water;
• eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
• challenging the federal government’s actions that repeal or reduce public health and environmental protections; and
• penalizing and preventing illegal discharges to air and water from facilities located in communities already burdened disproportionately with pollution.

4. The Environmental Justice Fund

This bill would create the Environmental Justice Fund into which the Attorney General would deposit money from various special funds, settlement, and penalties not otherwise required by law to be credited to another fund. Upon appropriation, the Attorney General would be required to use monies in the fund to provide additional support for investigations and litigation intended to protect communities that endure a disproportionate share of environmental pollution and to promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies. Although pollution affects all communities, the creation of this fund signals the Legislature’s recognition that poor people suffer disproportionately from environmental harms and are in need of assistance to address these harms.

In opposition, the California Independent Oil Marketers Association (CIOMA) writes:

CIOMA has no issue with the mission of the EJ Bureau to protect people and communities that endure a disproportionate share of pollution. However, the Bureau should be properly funded like any other division within the office of the Attorney General. CIOMA does not believe allocating settlement awards or fines to the Bureau is cost effective. The monies would vary year to year and a bounty system designed to expand litigation in an indirect way of supporting the activities which include litigation is not the best way to fund the Bureau and is not in the best interest of the State.

However, the Environmental Justice Fund is just one source of funding for the Environmental Justice Bureau. And the Attorney General has other similar dedicated funds, such as the Antitrust Account, the False Claims Act Fund, and the Public Rights Law Enforcement Fund, that are replenished by fines and settlements from litigation. The contention that such funds are “bounty systems” seemingly imputes ill motives and ignores the fact that parties that enter into settlements or pay fines typically do so because they’ve violated the law. In reality, such funds are standard accounting mechanisms that afford administrative convenience and efficiencies in tracking and allocating resources necessary for the Attorney General’s operations.

Support: California Bicycle Coalition; California Department of Justice; California Environmental Justice Alliance; Communities for a Better Environment; National Association of Social Workers—California Chapter

Opposition: California Independent Oil Marketers Association

HISTORY

Source: California Department of Justice

Related Pending Legislation: None

Prior Legislation:

AB 1550 (Gomez, Ch. 369, Stats. 2016) established the requirement that 25 percent of proceeds from the Greenhouse Gas Reduction Fund be spent on projects located in disadvantaged communities.

SB 535 (De León, Ch. 830, Stats. 2012) established the requirement that 25 percent of proceedings from the Greenhouse Gas Reduction Fund be directed to projects that provide benefits in disadvantaged communities.

Prior Vote:

Assembly Floor (Ayes 49, Noes 22)

Assembly Appropriations Committee (Ayes 12, Noes 5)

Assembly Judiciary Committee (Ayes 8, Noes 1)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2636

Author:(Eduardo Garcia and Reyes)

As Amended Ver:April 18, 2018

Majority vote

SUMMARY: Establishes the Environmental Justice Fund (Fund), within the State Treasury, to fund the Attorney General efforts to protect environmental justice communities. Specifically, this bill:

1. Creates the Fund in the State Treasury and permits the Attorney General to deposit money into the Fund from the following sources:
   1. Various special funds;
   2. Settlements; and
   3. Penalties not otherwise required to be credited to another fund.
2. Provides that the Fund shall be used, upon appropriation, to support investigations and litigation that protect communities that endure a disproportionate share of environmental pollution and promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

EXISTING LAW:

1. Provides that the Attorney General has charge of all legal matters in which the state is interested, except the business of The Regents of the University of California and of such other boards or officers that are by law authorized to employ attorneys. (Government Code Section 12510.)
2. States that it is in the public interest to provide the people of the State of California through the Attorney General the ability to protect the natural resources of the State of California from pollution, impairment, or destruction. (Government Code Section 12600 (b).)
3. Provides the Attorney General the power to intervene in any judicial or administrative proceeding concerning pollution or adverse environmental effects which could affect the public generally. (Government Code Section 12606.)
4. Establishes the Attorney General antitrust account in the General Fund to fund the Department of Justice's expenditures in carrying out the antitrust activities of the department. (Government Code Section 12526.)
5. Establishes the Public Rights Law Enforcement Special Fund in the State Treasury to fund, upon appropriation, the investigation and prosecution of any matter within the authority of the Department of Justice's Public Rights Division. (Government Code Section 12530.)
6. Defines "environmental justice," for the purpose of the Governor's Office of Planning and Research's coordination of state agency programs, as the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. (Government Code Section 65040.12.)

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor and absorbable costs related to the establishment of the fund in the State Treasury

COMMENTS: In February 2018, Attorney General Xavier Becerra announced the creation of the Bureau of Environmental Justice (Bureau), within the Environmental Section of the California Department of Justice to focus on investigating and litigating environmental harms in environmental justice communities. This bill, would establish the Environmental Justice Fund (Fund) in the State Treasury to provide supplemental funds to the new Bureau to carry out investigations and litigation.

Investigating and litigating potential environmental claims is an expensive and lengthy proposition. Cases involving potential environmental harm and exposure to hazardous substances frequently take years to develop, and often require the extensive use of costly scientific studies and the retention of experts on public health and the environment. Across California, economically disadvantaged communities are exposed to a disproportionate share of environmental hazards that give rise to potential environmentally-related legal claims. The want of resources in these at-risk communities unfortunately deters many environmental claims from ever being brought to court, thus leaving these communities without justice and subject to continued exposure to environmental hazards.

The Department of Justice's Environment Section currently defends California's environmental protection and natural resources agencies and prosecutes cases of environmental harm. The Attorney General established the Bureau within the Environmental Section to focus on prosecuting cases impacting communities that endure a disproportionate share of the state's environmental pollution and public health hazards. Once fully staffed, the Bureau is slated to emphasize investigating and litigating cases involving noncompliance with the California Environmental Quality Act, noncompliance with California's land use planning and zoning laws, remediation of drinking water, elimination of exposure to lead and other toxins in consumer products, and illegal discharges to air and water from facilities in environmental justice communities. Additionally, the Bureau will be tasked with opposing federal actions that repeal or reduce public health and environmental protections and advocating on behalf of private litigation to advance outcomes favorable to environmental justice.

The Bureau's litigations efforts will provide environmental justice communities an important advocate to ensure that these communities' rights are vindicated. Utilizing the strength of the Department of Justice, the Fund, and the staff of the Bureau, will provide the financial resources and legal expertise necessary to help environmental justice communities seek parody with more affluent areas of the state with regards to cleaning up pollution and enforcing their rights for a safe and healthy environment.

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0002777

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2636

Author:(Eduardo Garcia) – As Amended Ver:April 18, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill creates the Environmental Justice Fund (EJ Fund), into which the Attorney General (AG) may deposit available monies from special funds, settlements, and penalties. The bill authorizes the AG to use money in the fund, upon appropriation, to support investigations and litigation to:

1. Protect communities that endure a disproportionate share of environmental pollution.
2. Promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

FISCAL EFFECT:

Minor, absorbable costs to establish the fund in the State Treasury.

COMMENTS:

Recently, the AG established the Bureau of Environmental Justice (Bureau of EJ) within the Environment Section at the Department of Justice. The AG describes the mission of the Bureau of EJ as:

Protect[ing] people and communities that endure a disproportionate share of environmental pollution and public health hazards. This will be accomplished through oversight, investigation, and enforcement of the law. The Bureau’s attorneys will work primarily with attorneys in the Environment Section handling environmental enforcement matters on behalf of Attorney General Becerra. They will also coordinate with and utilize the expertise of other sections within the Attorney General’s Office, as needed.

This bill simply establishes the EJ Fund in the State Treasury into which the AG will deposit monies from special funds, settlements, and penalties. This is an accounting maneuver that will ease the AG’s administration of the funds. However, neither creation of the fund nor deposit of monies in the fund take the place of the need for the Legislature to appropriate the monies to the AG for any eligible uses of those monies.

Analysis Prepared by: Jay Dickenson / APPR. / (916) 319-2081

Date of Hearing: April 17, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2636

Author:(Eduardo Garcia) – As Introduced Ver:February 15, 2018

As Proposed to be Amended

SUBJECT: ATTORNEY GENERAL: ENVIRONMENTAL JUSTICE FUND

KEY ISSUE: SHOULD AN ENVIRONMENTAL JUSTICE FUND BE CREATED IN THE STATE TREASURY TO PROVIDE SUPPLEMENTAL SUPPORT FOR INVESTIGATIONS AND LITIGATION INTENDED TO PROTECT ENVIRONMENTAL JUSTICE COMMUNITIES?

SYNOPSIS

Despite California’s long history as a global leader in reducing pollution, promoting clean energy, enhancing the environment, and protecting public health; the benefits of California’s innovative laws have not been shared equally across the state. Too frequently, lower income communities of color struggle to adequately enforce their environmental rights, especially in comparison to their more affluent peers, due to the significant costs typically associated with environmental litigation. As a result of the costs associated with protecting the environment in court, these communities, sometimes referred to as environmental justice communities, suffer a disproportionate share of the state’s environmental harms including increased local pollution, a higher likelihood of soil and water contamination, and greater instances of adverse health outcomes.

Seeking to address the disparity in environmental outcomes between communities, Attorney General Xavier Becerra established a Bureau of Environmental Justice Bureau in February. The Bureau is tasked with enforcing California’s environmental laws, specifically on behalf of environmental justice communities. This bill, as proposed to be amended, creates the Environmental Justice Fund within the Department of Justice to provide a supplemental funding source for the Bureau’s environmental investigation and enforcement activities. The Fund assists the Attorney General’s efforts to leverage the resources of the Department of Justice to ensure environmental justice communities receive their day in court and can properly enforce California’s robust environmental protection laws. In addition to the bill’s sponsor, Attorney General Xavier Becerra and the California Department of Justice, this bill is supported by a coalition of environmental and social justice organizations including the California Bicycle Coalition, Communities for a Better Environment, California Environmental Justice Alliance, and the California Chapter of the National Association of Social Workers. This bill is opposed by the California Independent Oil Marketers Association on the belief that funding the Department of Justice with the proceeds of settlements may induce unnecessary litigation.

SUMMARY: Establishes the Environmental Justice Fund (Fund), within the State Treasury, to fund the Attorney General efforts to protect environmental justice communities. Specifically, this bill:

1. Creates the Fund in the State Treasury and permits the Attorney General to deposit money into the Fund from the following sources:
   1. Various special funds;
   2. Settlements; and
   3. Penalties not otherwise required to be credited to another fund.
2. Provides that the Fund shall be used, upon appropriation, to support investigations and litigation that protect communities that endure a disproportionate share of environmental pollution and promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

EXISTING LAW:

1. Provides that the Attorney General has charge of all legal matters in which the state is interested, except the business of The Regents of the University of California and of such other boards or officers that are by law authorized to employ attorneys. (Government Code Section 12510.)
2. States that it is in the public interest to provide the people of the State of California through the Attorney General the ability to protect the natural resources of the State of California from pollution, impairment, or destruction. (Government Code Section 12600 (b).)
3. Provides the Attorney General the power to intervene in any judicial or administrative proceeding concerning pollution or adverse environmental effects which could affect the public generally. (Government Code Section 12606.)
4. Establishes the Attorney General antitrust account in the General Fund to fund the Department of Justice’s expenditures in carrying out the antitrust activities of the department. (Government Code Section 12526.)
5. Establishes the Public Rights Law Enforcement Special Fund in the State Treasury to fund, upon appropriation, the investigation and prosecution of any matter within the authority of the Department of Justice’s Public Rights Division. (Government Code Section 12530.)
6. Defines “environmental justice,” for the purpose of the Governor’s Office of Planning and Research’s coordination of state agency programs, as the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. (Government Code Section 65040.12.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In February 2018, Attorney General Xavier Becerra announced the creation of the Bureau of Environmental Justice (Bureau), within the Environmental Section of the California Department of Justice to focus on investigating and litigating environmental harms in environmental justice communities. This bill, would establish the Environmental Justice Fund (Fund) in the State Treasury to provide supplemental funds to the new Bureau to carry out investigations and litigation.

Disadvantaged communities struggle to enforce environmental laws. Investigating and litigating potential environmental claims is an expensive and lengthy proposition. Cases involving potential environmental harm and exposure to hazardous substances frequently take years to develop, and often require the extensive use of costly scientific studies and the retention of experts on public health and the environment. Across California, economically disadvantaged communities are exposed to a disproportionate share of environmental hazards that give rise to potential environmentally-related legal claims. The California Office of Environmental Health Hazard Assessment’s CalEnviroScreen 3.0 shows a strong correlation between a community’s income level and the level of environmental risk faced by the community. The want of resources in these at-risk communities unfortunately deters many environmental claims from ever being brought to court, thus leaving these communities without justice and subject to continued exposure to environmental hazards.

Environmental enforcement by the Department of Justice. The Department of Justice’s Environment Section currently defends California’s environmental protection and natural resources agencies and prosecutes cases of environmental harm. The Attorney General established the Bureau within the Environmental Section to focus on prosecuting cases impacting communities that endure a disproportionate share of the state’s environmental pollution and public health hazards.

Once fully staffed, the Bureau is slated to emphasize investigating and litigating cases involving noncompliance with the California Environmental Quality Act, noncompliance with California’s land use planning and zoning laws, remediation of drinking water, elimination of exposure to lead and other toxins in consumer products, and illegal discharges to air and water from facilities in environmental justice communities. Additionally, the Bureau will be tasked with opposing federal actions that repeal or reduce public health and environmental protections and advocating on behalf of private litigation to advance outcomes favorable to environmental justice.

The Bureau’s litigations efforts will provide environmental justice communities an important advocate to ensure that these communities’ rights are vindicated. Utilizing the strength of the Department of Justice, the Fund, and the staff of the Bureau, will provide the financial resources and legal expertise necessary to help environmental justice communities seek parody with more affluent areas of the state with regards to cleaning up pollution and enforcing their rights for a safe and healthy environment.

The Fund is based on similar specialized environmental litigation funds in Maryland, New York, New Jersey, Ohio, and Wisconsin. The Fund, like its counterparts in these other states, is designed to take the proceeds from judgments in cases impacting environmental justice communities and roll the money back into prosecuting additional bad actors that harm the environment and put California’s public health at risk.

When announcing the creation of the Bureau, California Attorney General Xavier Becerra noted the following:

The harsh reality is that some communities in California- particularly low-income communities and communities of color- continue to bear the brunt of pollution from industrial development, poor land use decisions, transportation, and trade corridors. To all who advance environmental justice, the California Department of Justice will work with you to fight for a clean, safe and healthy environment.

Author’s Statement. The author introduced this bill in conjunction with the Attorney General’s announcement of the Bureau’s formation. The author and Attorney General seek to leverage the expertise of the Department of Justice to prosecute these environmental claims and to provide the Bureau’s staff with the resources necessary to develop these complex cases. In support of the measure the author notes:

Justice should not be reserved for communities who can afford to investigate and litigate parties that break the law. By establishing the EJ Bureau, the Attorney General has taken the first step to dedicating resources to assist those communities who would otherwise continue to suffer poor health and environmental outcomes that are much more costly to the state if left unaddressed. Creation of an Environmental Justice Fund is a procedural step that will support this effort.

Funding sources for environmental enforcement. Under existing law, the Department of Justice’s legal service work is typically funded by the General Fund or various special funds. According to the Office of the Attorney General, existing fund sources will generate the bulk of the financial assistance necessary for the start-up and operation of the Bureau. This bill would create a new fund, and permit the Attorney General to deposit money into the fund, including proceeds from other special funds, settlements, and penalties. It is unclear how much money will be generated for the fund each year, and the funding levels are likely to fluctuate depending on the outcomes of litigation in any given year. Accordingly, the Attorney General’s office anticipates using the Fund to supplement existing appropriations related to environmental justice.

In opposition, the California Independent Oil Marketers Association contends that the Bureau should not be funded via a special fund that is permitted to receive settlement funds. They argue that this will expand potential litigation as a revenue source for the Bureau. However, several special funds maintained by the Attorney General currently receive money directly from settlements and enforcement penalties and are used to fund the Department of Justice’s ongoing enforcement and litigation efforts. These funds include the Attorney General’s Antitrust Account, the False Claims Act Fund, and the Public Rights Law Enforcement Fund. Several of these funds generate significant quantities of money each year, for example, according to the Governor’s 2018-2019 Budget since 2015 the Public Rights Law Enforcement Fund received between $11 million and $17 million in settlement revenue annually. Despite generating tens of millions of dollars in settlement revenue for the state, there is no evidence that the presence of these funds, and the use of settlement revenue to fund future enforcement activity, induce frivolous litigation by the Attorney General. Likewise, there is no reason to believe that creating the new fund proposed by the bill will motivate the Attorney General’s Office to pursue legal action that is without merit.

Ensuring that environmental justice communities benefit from environmental litigation. This bill seeks to support investigations and litigation on the behalf of environmental justice communities. Although “environmental justice” has been defined in statute, the term “environmental justice community” has never been defined in California law, despite several statutes directly referencing these communities.

Any measure seeking to codify a definition of environmental justice community should be subjected to a broad stakeholder process, and arguably, a committee with a core jurisdiction over environmental protection or natural resources is the appropriate venue to develop a formal definition of environmental justice community. Nonetheless, to ensure that future Attorneys General adhere to the spirit of the Fund and the Bureau, the author and the Office of the Attorney General have discussed strengthening the bill’s language related to the use of the Fund for environmental justice purposes. In doing so, as proposed to be amended, the bill would incorporate the applicable aspects of the existing definition of environmental justice into the provisions related to the authorized use of the Fund. As proposed to be amended, subdivision (b), commencing on line 8, or page 2 of the bill would read as follows:

(b) The Environmental Justice Fund shall be used, upon appropriation by the Legislature, by the Attorney General to provide additional support for investigations and litigation intended to protect people and communities that endure a disproportionate share of environmental pollution and to promote the fair treatment of people of all races, cultures, and incomes with respect to the implementation and enforcement of environmental laws, regulations, and policies.

ARGUMENTS IN SUPPORT: The sponsor of this bill, the Department of Justice and Attorney General Xavier Becerra, noted that this bill will promote the success of the Bureau by providing supplemental funds for enforcement activities in environmental justice communities. The Attorney General states:

Far too many California families have endured a disproportionate share of environmental pollution. The communities where these families live typically lack the resources to investigate or litigate these issues.

AB 2636 would create a fund to help the Bureau fulfill its mission and bring environmental justice to a significant number of Californians

Furthermore, in support of this measure, a coalition of advocates for environmental justice communities, including the California Bicycle Coalition, note that state and local agencies have, at times, struggled to implement California’s ambitious climate goals. As the advocates note, “these shortcomings are symptomatic of a need for reform and could absolutely benefit from stronger legal support from the State Attorney General.”

ARGUMENTS IN OPPOSITION: The California Independent Oil Marketers Association state that although they support the mission of the Bureau, they contend that it should not be funded through the use of settlement proceeds. Although the Department of Justice utilizes several special funds that receive settlement revenues, the California Independent Oil Marketers Association argue that the Bureau should have a different funding mechanism:

The Bureau should be properly funded like any other division within the office of the Attorney General. CIOMA does not believe allocating settlement awards or fines to the Bureau is cost effective. The monies would vary year to year and a bounty system designed to expand litigation in an indirect way of supporting the activities which include litigation is not the best way to fund the Bureau and is not in the best interest of the State.

REGISTERED SUPPORT / OPPOSITION:

Support

California Department of Justice (sponsor)

California Bicycle Coalition

California Environmental Justice Alliance

Communities for a Better Environment

National Association of Social Workers- California Chapter

Opposition

California Independent Oil Marketers Association

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334