SB 49: California Environmental, Public Health, and Workers Defense Act of 2017.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2017-09-12
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species, and generally prohibits the taking of those species.
This bill would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would make its provisions inoperative as of January 20, 2021, and would repeal them as of January 1, 2022.
(5)(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species, and generally prohibits the taking of those species. The Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances. That act requires the state board to provide on its Internet Web site, and in writing for purchase by the public, a copy of the federal new source review regulations as they read on December 30, 2002, and a related document.
This bill would prohibit state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined, and would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. The bill would make conforming changes to the Protect California Air Act of 2003. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.(6)(5)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species, and generally prohibits the taking of those species. The Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances. That act requires the state board to provide on its Internet Web site, and in writing for purchase by the public, a copy of the federal new source review regulations as they read on December 30, 2002, and a related document.
This bill would prohibit state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined, and would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. The bill would make conforming changes to the Protect California Air Act of 2003. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species species, and generally prohibits the taking of those species. The Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances. That act requires the state board to provide on its Internet Web site, and in writing for purchase by the public, a copy of the federal new source review regulations as they read on December 30, 2002, and a related document.
This bill would prohibit state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined, and would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. The bill would make conforming changes to the Protect California Air Act of 2003. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and generally prohibits the taking of those species. The Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances. That act requires the state board to provide on its Internet Web site, and in writing for purchase by the public, a copy of the federal new source review regulations as they read on December 30, 2002, and a related document.
This bill would prohibit state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined, and would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. The bill would make conforming changes to the Protect California Air Act of 2003. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
(1)The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere. The federal Clean Water Act regulates the discharge of pollutants into water. The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.
Existing state law regulates the discharge of air pollutants into the atmosphere. The Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state. The California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems. The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and generally prohibits the taking of those species. The Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances. That act requires the state board to provide on its Internet Web site, and in writing for purchase by the public, a copy of the federal new source review regulations as they read on December 30, 2002, and a related document.
This bill would prohibit state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined, and would require specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species. The bill would make conforming changes to the Protect California Air Act of 2003. By imposing new duties on local agencies, this bill would impose a state-mandated local program.
(2)Existing law provides for the enforcement of laws regulating the discharge of pollutants into the atmosphere and waters of the state. Existing law provides for the enforcement of drinking water standards. Existing law provides for the enforcement of the California Endangered Species Act.
This bill would authorize a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
(3)Existing federal law generally establishes standards for workers rights and worker safety.
Existing state law generally establishes standards for workers rights and worker safety.
This bill would prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers rights or worker safety than standards established by federal law in existence as of January 1, 2016.
(4)Existing law authorizes a person to petition a court for the issuance of a writ of mandate to a public agency to compel the performance of an action required by law or to review a decision of the public agency.
This bill would expressly authorize a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agencys action for compliance with, this measure.
(5)This bill would require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
This bill would express the intent of the Legislature to enact statutory changes relating to the Budget Act of 2016.This bill would express the intent of the Legislature to enact statutory changes relating to the Budget Act of 2016.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress have signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 19, 2017, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.General Provisions120030.(a)A state agency may adopt standards or requirements pursuant to this title, including, but not limited to, by emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2.
(b)The adoption of emergency regulations in furtherance of this title shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, and safety, or general welfare.
(c)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2, emergency regulations adopted by a state agency under this title shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised or repealed by the state agency, or January 20, 2021, whichever comes first.
2.3.Operative Provisions1.Air120040.The Legislature finds and declares both of the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and Division 26 (commencing with Section 39000) of the Health and Safety Code are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041.For purposes of this article, baseline federal standards means federal laws or federal regulations implementing the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) in effect as of January 19, 2017, including federal requirements for a state implementation plan, federal requirements for the transportation conformity program, and federal requirements for the prevention of significant deterioration. 2017.
120042.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) or its implementing regulations, the State Air Resources Board shall regularly assess proposed and final changes to federal statutes and regulations that threaten to weaken existing environmental or public health standards and regulations related to matters under the State Air Resources Boards jurisdiction or the jurisdiction of the regional or local air quality management boards. boards as of January 19, 2017. As part of its regular assessment, the State Air Resources Board shall provide an opportunity for public input.
(b)If the State Air Resources Board determines that a change identified under subdivision (a) reasonably could result in a negative impact to the environment or public health or welfare in California, it shall, as determined by the State Air Resources Board, shall take actions as necessary in order appropriate action to maintain protections at least as stringent as baseline federal standards. standards, as determined by the State Air Resources Board, to protect Californias environment. These measures shall be adopted by the earliest feasible date. expeditiously. Nothing herein prohibits the State Air Resources Board from establishing rules and regulations for California that are more stringent than the baseline federal standards.
(c)The State Air Resources Board may adopt the measures under subdivision (b) using either of the following procedures:
(1)As an emergency regulation in accordance with the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. Section 120030.
(2)By adoption promulgation or amendment of a state policy, plan, or regulation.
(d)Notwithstanding any other law, the State Air Resources Board, when adopting a measure under paragraph (2) of subdivision (c) may adopt those measures in accordance with Section 100 of Title 1 of the California Code of Regulations and the measures shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section and not subject to additional notice, procedural, or other considerations contained in state analogue statutes identified in this article. Nothing in this chapter shall affect the imposition of sanctions under the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
2.Water120050.The Legislature finds and declares all of the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.For purposes of this article, baseline federal standards means federal laws or federal regulations implementing the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) and the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) in effect as of January 19, 2017, including water quality standards, effluent limitations, and drinking water standards.
120052.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), or their implementing regulations, the State Water Resources Control Board shall regularly assess proposed and final changes to federal statutes and regulations that threaten to weaken existing environmental or public health standards and requirements related to matters under the State Water Resources Control Boards jurisdiction. As part of its regular assessment, the State Water Resources Control Board shall provide an opportunity for public input.
(b)If the State Water Resources Control Board determines that a change identified under subdivision (a) reasonably could result in a negative impact to the environment or public health or welfare in California, it shall, as determined by the State Water Resources Control Board, shall take actions as necessary in order appropriate action to maintain protections at least as stringent as baseline federal standards. standards, as determined by the State Water Resources Control Board, to protect Californias environment. These measures shall be adopted by the earliest feasible date. expeditiously. Nothing herein prohibits the State Water Resources Control Board from establishing rules and regulations for California that are more stringent than the baseline federal standards.
(c)The State Water Resources Control Board may adopt the measures under subdivision (b) using either of the following procedures:
(1)As an emergency regulation in accordance with the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. Section 120030.
(2)By adoption promulgation or amendment of a state policy for water quality control, a water quality control plan, or regulation.
(d)Notwithstanding any other law, the State Water Resources Control Board, when adopting a standard or requirement under paragraph (2) of subdivision (c) may adopt those measures in accordance with Section 100 of Title 1 of the California Code of Regulations and the measures shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section and not subject to additional notice, procedural, or other considerations contained in state analogue statutes identified in this article.
3.Endangered and Threatened Species120060.The Legislature finds and declares both of the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act generally prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless permitted by the Fish and Game Commission pursuant to Section 2084 of the Fish and Game Code, by the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code, or as otherwise authorized by the Fish and Game Code. The Fish and Game Commission and the Department of Fish and Wildlife administer the California Endangered Species Act to protect and conserve the states fish, wildlife, and plants.
120061.For purposes of this article, baseline federal standards means federal laws, federal regulations, federal incidental take statements, federal incidental take permits, and federal biological opinions implementing the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) in effect as of January 19, 2017. 2017, its implementing regulations, and any incidental take permits, incidental take statements, or biological opinions in effect as of January 19, 2017.
120062.Except as otherwise authorized by state law, the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or its implementing regulations, in the event of the federal delisting of a species that is eligible for protection under the California Endangered Species Act and which is listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, or a change in the legally protected status of such a species, including through a change in listing from endangered to threatened, the adoption of a rule pursuant to Section 4(d) of the federal Endangered Species Act, or any amendment to the federal Endangered Species Act of 1973 or its implementing regulations, or any exemption from the application of the federal Endangered Species Act of 1973 to a federally listed species as of January 1, 2017, the Fish and Game Commission shall list determine whether to list, in accordance with subdivision (b), that species under the California Endangered Species Act pursuant to this section. The Fish and Game Commissions review shall begin upon the receipt of information regarding reduced protections for endangered or threatened species from one or more members of the public, the Department of Fish and Wildlife, or Fish and Game Commission staff.
(b)The Fish and Game Commission shall list the affected species identified in subdivision (a), pursuant to subdivision (c) and without following the regular listing process set forth in Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code, no later than the conclusion of its second regularly scheduled meeting or within three months, whichever is shorter, after the occurrence of the event described in subdivision (a) unless either the Fish and Game Commission determines, based upon the best available information, determines that listing of the species is not warranted because it does not meet the criteria in Section 670.1(i)(1)(A) of Title 14 of the California Code of Regulations Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code or its implementing regulations or the Department of Fish and Wildlife recommends that the species undergo the regular listing process. If the Department of Fish and Wildlife makes a recommendation that the species undergo the regular listing process, the Fish and Game Commission shall either accept the recommendation, in which event the Fish and Game Commission shall be deemed to have accepted a petition for listing the species pursuant to paragraph (2) of subdivision (e) of Section 2074.2 of the Fish and Game Code, or reject the recommendation and immediately list the species pursuant to this subdivision.
(c)Notwithstanding any other law or regulation, because a decision by the Fish and Game Commission to list a species without following the regular listing process becomes effective immediately, the Fish and Game Commission or the Department of Fish and Wildlife shall add that species to the list of endangered or threatened species pursuant to Section 100 of Title 1 of the California Code of Regulations, and the addition of that species to the list shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
(d)Upon the listing of any species under this section, the Fish and Game Commission or the Department of Fish and Wildlife may authorize the taking of such species as otherwise provided for in the Fish and Game Code. In lieu of authorizing take under the provisions of Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code, the Fish and Game Commission or the Department of Fish and Wildlife may adopt the terms and conditions of any rule promulgated under Section 4(d) of the federal Endangered Species Act, federal incidental take statement, incidental take permit, or Biological Opinion biological opinion in effect at the time of the event described in subdivision (a). In any case, the Department of Fish and Wildlife shall include conditions at least as stringent as required by the baseline federal standards, as determined by the Department of Fish and Wildlife. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code, or prohibit the Department of Fish and Wildlife from establishing conditions that are more stringent than the baseline federal standards.
(e)Any species listed pursuant to this section shall be subject to the provisions in the California Endangered Species Act in the same manner as any other listed species, including those provisions related to a change in listing status or delisting.
(f)For those species that the Fish and Game Commission lists pursuant to subdivision (b), the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) shall not apply.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651 et seq.), the Federal Coal Mine Health and Safety Act of 1969, as amended (30 U.S.C. Sec. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications or regulations established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is less stringent, as determined by the state agency, in its protection of workers rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
120111.This division does not prohibit a state agency from establishing workers rights and worker safety standards for California that are more stringent, as determined by the state agency, than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
120201.This section is intended to apply solely and exclusively to the enforcement of baseline federal standards, as defined in the applicable article or chapter of this division, and is limited to circumstances described in the applicable paragraph (2) of subdivisions (a) to (e), inclusive.
(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Section 120042 or to impose civil penalties for a violation of those standards or requirements, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, counsel of an air district, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, counsel of an air district, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Air Resources Board to the extent an action to enforce the provisions of Section 120042 is available against the State Air Resources Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in Article 1 (commencing with Section 120040) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Section 120052 or to impose civil penalties for a violation of those standards or requirements if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Water Resources Control Board to the extent an action to enforce the provisions of Section 120052 is available against the State Water Resources Control Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding water supply and qualitydescribed in Article 2 (commencing with Section 120050) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United States Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Section 120052 or to impose civil penalties for a violation of those standards or requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Water Resources Control Board to the extent an action to enforce the provisions of Section 120052 is available against the State Water Resources Control Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding drinking water described in Article 2 (commencing with Section 120050) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest exclusively to enforce the requirements of the California Endangered Species Act for a species listed pursuant to Section 120062 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the Department of Fish and Wildlife to the extent an action to enforce the provisions of Section 120062 is available against the Department of Fish and Wildlife pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in Article 3 (commencing with Section 120060) of Chapter 2 of Division 1 to be less protective than the applicable federal requirements described in that article.
(B)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1032 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.(a)This title shall become inoperative on January 20, 2021, and, as of January 1, 2022, is repealed.
(b)Notwithstanding subdivision (a), any action brought pursuant to this title on or before January 20, 2021, may proceed to a final judgment.
SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress have signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 19, 2017, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.Definitions120020.For purposes of this division, the following definitions apply:(a)Baseline federal standards means federal laws or federal regulations implementing the federal laws in effect as of January 19, 2017.(b)Baseline federal standards for other federal laws means other federal laws or federal regulations implementing the other federal laws in effect as of January 19, 2017.(c)Federal law means any of the following:(1)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).(2)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).(3)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).(4)The Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).(d)Other federal laws means any of the following:(1)The federal Wild and Scenic Rivers Act (16 U.S.C. Sec. 1271 et seq.).(2)The federal San Joaquin River Restoration Settlement Act (Part I of Subtitle A of Title X of Public Law 111-11).(3)The federal Central Valley Project Improvement Act (Title 34 of Public Law 102-575).3.2.Operative Provisions1.General120030.(a)Except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.(b)This division does not prohibit a state or local agency from establishing rules and regulations for California that are more stringent than the baseline federal standards.120031.(a)To the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to other federal laws shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards for other federal laws.(b)This division does not prohibit a state or local agency from establishing rules or regulations for California that are more stringent than the baseline federal standards for other federal laws.2.1.Air120040.The Legislature finds and declares both of the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and Division 26 (commencing with Section 39000) of the Health and Safety Code are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041. Except as otherwise authorized by state law, all of the following apply:(a)In addition to maintaining air quality requirements and standards under state law, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards to be at least as stringent as the baseline federal standards, as determined by the state board or an air district, in addition to air quality requirements and standards required under state law.(b)If the State Air Resources Board determines that baseline federal standards regarding air quality have been repealed, revised, or amended to be less stringent, the state board shall adopt a standard or requirement to be at least as stringent as the baseline federal standards, as determined by the state board.(c)Notwithstanding the repeal, revision, or amendment of any federal requirements for a state implementation plan that would make those requirements less stringent than the baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt state implementation plans for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.(d)If the state board determines the federal transportation conformity program is repealed or becomes less stringent than the applicable baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt and implement requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.(e)If the state board determines that the United States Environmental Protection Agency repealed or no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, then, where an air quality management district or air pollution control district has not received authority to issue prevention of significant deterioration permits, the State Air Resources Board shall establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards, as determined by the state board.(f)Notwithstanding any other law, the State Air Resources Board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.120041.For purposes of this article, baseline federal standards means federal laws or federal regulations implementing the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) in effect as of January 19, 2017, including federal requirements for a state implementation plan, federal requirements for the transportation conformity program, and federal requirements for the prevention of significant deterioration.
120042.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) or its implementing regulations, the State Air Resources Board shall regularly assess proposed and final changes to federal statutes and regulations that threaten to weaken existing environmental or public health standards and regulations related to matters under the State Air Resources Boards jurisdiction or the jurisdiction of the regional or local air quality management boards. As part of its regular assessment, the State Air Resources Board shall provide an opportunity for public input.
(b)If the State Air Resources Board determines that a change identified under subdivision (a) reasonably could result in a negative impact to the environment or public health or welfare in California, it shall, as determined by the State Air Resources Board, take actions as necessary in order to maintain protections at least as stringent as baseline federal standards. These measures shall be adopted by the earliest feasible date. Nothing herein prohibits the State Air Resources Board from establishing rules and regulations for California that are more stringent than the baseline federal standards.
(c)The State Air Resources Board may adopt the measures under subdivision (b) using either of the following procedures:
(1)As an emergency regulation in accordance with the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)By adoption or amendment of a state policy, plan, or regulation.
(d)Notwithstanding any other law, the State Air Resources Board, when adopting a measure under paragraph (2) of subdivision (c) may adopt those measures in accordance with Section 100 of Title 1 of the California Code of Regulations and the measures shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section and not subject to additional notice, procedural, or other considerations contained in state analogue statutes identified in this article.
3.2.Water120050.The Legislature finds and declares all of the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.Except as otherwise authorized by state law, all of the following apply:(a)(1)In addition to maintaining and enforcing water supply and water quality standards under state law, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards to be at least as stringent as applicable baseline federal standards, as determined by the State Water Resources Control Board or the regional water quality control boards.(2)In addition to maintaining and enforcing drinking water standards under state law, the State Water Resources Control Board shall maintain and enforce all drinking water standards to be at least as stringent as applicable baseline federal standards, as determined by the board.(b)If the State Water Resources Control Board determines that baseline federal standards regarding water supply, water quality, or drinking water standards have been revised or amended to be less stringent, the board shall adopt a standard or requirement to be at least as stringent as the baseline federal standards, as determined by the board.(c)(1)Waste discharge requirements and permits that are issued on and after January 1, 2018, shall be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.(2)Drinking water supply permits that are issued on and after January 1, 2018, shall be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable baseline federal standards, in addition to those required by state law.(d)A water quality control plan adopted on or after January 1, 2018, shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.(e)When a waste discharge requirement or water quality control plan is renewed or amended, any water quality standards, effluent limitations, restrictions, and conditions shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.(f)Notwithstanding any other law, the State Water Resources Control Board or a regional water quality control board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.120051.For purposes of this article, baseline federal standards means federal laws or federal regulations implementing the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) and the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) in effect as of January 19, 2017, including water quality standards, effluent limitations, and drinking water standards.
120052.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), or their implementing regulations, the State Water Resources Control Board shall regularly assess proposed and final changes to federal statutes and regulations that threaten to weaken existing environmental or public health standards and requirements related to matters under the State Water Resources Control Boards jurisdiction. As part of its regular assessment, the State Water Resources Control Board shall provide an opportunity for public input.
(b)If the State Water Resources Control Board determines that a change identified under subdivision (a) reasonably could result in a negative impact to the environment or public health or welfare in California, it shall, as determined by the State Water Resources Control Board, take actions as necessary in order to maintain protections at least as stringent as baseline federal standards. These measures shall be adopted by the earliest feasible date. Nothing herein prohibits the State Water Resources Control Board from establishing rules and regulations for California that are more stringent than the baseline federal standards.
(c)The State Water Resources Control Board may adopt the measures under subdivision (b) using either of the following procedures:
(1)As an emergency regulation in accordance with the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2)By adoption or amendment of a state policy for water quality control, a water quality control plan, or regulation.
(d)Notwithstanding any other law, the State Water Resources Control Board, when adopting a standard or requirement under paragraph (2) of subdivision (c) may adopt those measures in accordance with Section 100 of Title 1 of the California Code of Regulations and the measures shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section and not subject to additional notice, procedural, or other considerations contained in state analogue statutes identified in this article.
4.3.Endangered and Threatened Species120060.The Legislature finds and declares both of the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code. The Fish and Game Commission and the Department of Fish and Wildlife administer the California Endangered Species Act to protect and conserve the states fish, wildlife, and plants.
120061.Except as otherwise authorized by state law, both of the following apply:(a)All native species not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, shall be listed as an endangered or threatened species, as appropriate, pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.(b)Any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, shall only authorize incidental take if it requires conditions at least as stringent as required by the federal Endangered Species Act of 1973 and applicable regulations in effect as of January 19, 2017, as determined by the Department of Fish and Wildlife, including, but not limited to, any federal incidental take statement, incidental take permit, or biological opinion in effect and applicable to a permittee or project as of January 19, 2017. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code.(c)Notwithstanding any other law, the commission or the Department of Fish and Wildlife, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.120062.To the extent authorized by the federal Reclamation Act of 1902 (Public Law 57-161) and other federal law, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.120061.For purposes of this article, baseline federal standards means federal laws, federal regulations, federal incidental take statements, federal incidental take permits, and federal biological opinions implementing the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) in effect as of January 19, 2017.
120062.Except as otherwise authorized by state law, the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) or its implementing regulations, in the event of the federal delisting of a species that is eligible for protection under the California Endangered Species Act and which is listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, or a change in the legally protected status of such a species, including through a change in listing from endangered to threatened, the adoption of a rule pursuant to Section 4(d) of the federal Endangered Species Act, or any amendment to the federal Endangered Species Act of 1973 or its implementing regulations, or any exemption from the application of the federal Endangered Species Act of 1973 to a federally listed species as of January 1, 2017, the Fish and Game Commission shall list that species under the California Endangered Species Act pursuant to this section. The Fish and Game Commissions review shall begin upon the receipt of information regarding reduced protections for endangered or threatened species from one or more members of the public, the Department of Fish and Wildlife, or Fish and Game Commission staff.
(b)The Fish and Game Commission shall list the affected species identified in subdivision (a), pursuant to subdivision (c) and without following the regular listing process set forth in Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code, no later than the conclusion of its second regularly scheduled meeting or within three months, whichever is shorter, after the occurrence of the event described in subdivision (a) unless either the Fish and Game Commission determines, based upon the best available information, that listing of the species is not warranted because it does not meet the criteria in Section 670.1(i)(1)(A) of Title 14 of the California Code of Regulations or the Department of Fish and Wildlife recommends that the species undergo the regular listing process. If the Department of Fish and Wildlife makes a recommendation that the species undergo the regular listing process, the Fish and Game Commission shall either accept the recommendation, in which event the Fish and Game Commission shall be deemed to have accepted a petition for listing the species pursuant to paragraph (2) of subdivision (e) of Section 2074.2 of the Fish and Game Code, or reject the recommendation and immediately list the species pursuant to this subdivision.
(c)Notwithstanding any other law or regulation, because a decision by the Fish and Game Commission to list a species without following the regular listing process becomes effective immediately, the Fish and Game Commission or the Department of Fish and Wildlife shall add that species to the list of endangered or threatened species pursuant to Section 100 of Title 1 of the California Code of Regulations, and the addition of that species to the list shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
(d)Upon the listing of any species under this section, the Fish and Game Commission or the Department of Fish and Wildlife may authorize the taking of such species as otherwise provided for in the Fish and Game Code. In lieu of authorizing take under the provisions of Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code, the Fish and Game Commission or the Department of Fish and Wildlife may adopt the terms and conditions of any federal incidental take statement, incidental take permit, or Biological Opinion in effect at the time of the event described in subdivision (a). In any case, the Department of Fish and Wildlife shall include conditions at least as stringent as required by the baseline federal standards, as determined by the Department of Fish and Wildlife. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code, or prohibit the Department of Fish and Wildlife from establishing conditions that are more stringent than the baseline federal standards.
(e)Any species listed pursuant to this section shall be subject to the provisions in the California Endangered Species Act in the same manner as any other listed species, including those provisions related to a change in listing status or delisting.
(f)For those species that the Fish and Game Commission lists pursuant to subdivision (b), the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) shall not apply.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651 et seq.), the Federal Coal Mine Health and Safety Act of 1969, as amended (30 U.S.C. Sec. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is less stringent, as determined by the state agency, in its protection of workers rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
120111.This division does not prohibit a state agency from establishing workers rights and worker safety standards for California that are more stringent, as determined by the state agency, than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.Every state agency, including the Department of Justice, shall undertake all feasible efforts using its authority under state and federal law to implement and enforce this title. Notwithstanding Section 10231.5, every state agency that takes steps to enforce this title shall submit a report to the Legislature, in compliance with Section 9795 of the Government Code, at least once every six months describing its compliance with this title.120200.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
120201.(a)(1)(A)This section is intended to apply solely and exclusively to the enforcement of baseline federal standards, as defined in the applicable article or chapter of this division, and is limited to circumstances described in the applicable paragraph (2) of subdivisions (a) to (e), inclusive.
(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Article 2 (commencing with Section 120040) of Chapter 3 of Division 1 Section 120042 or to impose civil penalties for a violation of those standards or requirements, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, counsel of an air district, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, counsel of an air district, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Air Resources Board to the extent an action to enforce the provisions of Section 120042 is available against the State Air Resources Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in Section 120041 Article 1 (commencing with Section 120040) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 Section 120052 or to impose civil penalties for a violation of those standards or requirements if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Water Resources Control Board to the extent an action to enforce the provisions of Section 120052 is available against the State Water Resources Control Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding water supply and quality described in Section 120051 Article 2 (commencing with Section 120050) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United States Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest exclusively to enforce the standards or requirements adopted pursuant to Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 Section 120052 or to impose civil penalties for a violation of those standards or requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the State Water Resources Control Board to the extent an action to enforce the provisions of Section 120052 is available against the State Water Resources Control Board pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding drinking water described in Section 120051 Article 2 (commencing with Section 120050) of Chapter 2 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest exclusively to enforce the requirements of the California Endangered Species Act for a species listed pursuant to Article 4 (commencing with Section 120060) of Chapter 3 of Division 1 Section 120062 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(C)An action in the public interest brought pursuant to subparagraph (A) shall not be available against the Department of Fish and Wildlife to the extent an action to enforce the provisions of Section 120062 is available against the Department of Fish and Wildlife pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in Article 4 3 (commencing with Section 120060) of Chapter 3 2 of Division 1 to be less protective than the applicable federal requirements described in that section. article.
(B)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or Section 42501 or 42504 of the Health and Safety Code. title.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1032 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.SEC. 2.Section 42501 of the Health and Safety Code is amended to read:42501.The Legislature finds and declares all of the following:(a)For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the requisite level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality.(b)Requiring controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying emission controls when those sources are overhauled or upgraded. Without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed.(c)The new source review program has been a cornerstone of the states efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the requisite level of emission controls based on the attainment status of the area where the source is located.(d)The United States Environmental Protection Agency (USEPA) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states.(e)On December 31, 2002, the USEPA, under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)). In promulgating the regulatory amendments, the USEPA claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Californias experience under the new source review programs of the air pollution control and air quality management districts.(f)The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The USEPA has also proposed a rule that will change the definition of routine maintenance, repair and replacement. If that rule is finalized, it will significantly worsen the situation.(g)The newly revised and proposed federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of California and thereby threaten the health and safety of the people of the State of California.(h)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to the federal Clean Air Act and the programs and protections they provide, as well as to the underlying science that makes these programs and protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.(i)Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the state has primary responsibility for meeting ambient air quality standards in all areas of the state, and that the means to achieve the standards shall be set out in the state implementation plan, or SIP.(j)Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are at least as stringent as the new federal revised base program, and that the federal regulations certainly do not have the goal of preempting State creativity or innovation. (67 Fed.Reg. 80241 (Dec. 31, 2002)).SEC. 3.Section 42504 of the Health and Safety Code is amended to read:42504.(a)An air district shall not amend or revise its new source review rules or regulations to be less stringent than those in effect on January 19, 2017. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations in effect on January 19, 2017, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b).(b)(1)In amending or revising its new source review rules or regulations, a district shall not change any of the following that existed on January 19, 2017, if the amendments or revisions would exempt, relax, or reduce the obligations of a stationary source for any of the requirements listed in paragraph (2):(A)The applicability determination for new source review.(B)The definition of modification, major modification, routine maintenance, or repair or replacement.(C)The calculation methodology, threshold, or other procedures of new source review.(D)Any definitions or requirements of the new source review regulations.(2)(A)Any requirements to obtain new source review or other permits to construct, prior to the commencement of construction.(B)Any requirements for best available control technology (BACT).(C)Any requirements for air quality impact analysis.(D)Any requirements for recordkeeping, monitoring, and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.(E)Any requirements for regulating any air pollutant covered by the new source review rules and regulations.(F)Any requirements for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to the issuance of permits to construct.(c)In amending or revising its new source review rules or regulations, a district may change any of the items in paragraph (1) of subdivision (b) only if the change is more stringent than the new source review rules or regulations in effect on January 19, 2017.(d)Notwithstanding subdivisions (a), (b), and (c), a district may amend or revise a rule or regulation if a district board, at the time the amendments or revisions are adopted, makes its decision based upon substantial evidence in the record, the amendments or revisions are submitted to and approved by the state board after a public hearing, and all of the following conditions are met:(1)The amended or revised rule or regulation will do one of the following:(A)Will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety.(B)Will replace an existing rule or regulation that has been found to be unworkable due to engineering or other technical problems with a rule or regulation that is effective.(C)Will allow an amendment to an existing rule or regulation that otherwise will cause substantial hardship to a business, industry, or category of sources, if all of the following criteria are met:(i)The amendment is narrowly tailored to relieve the identified hardship.(ii)The district provides equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants.(iii)All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely. For the purposes of this clause, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants.(iv)Information regarding the reductions in emissions of air contaminants is available to the public.(D)Is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency.(E)Will not, if the district is in attainment with all national ambient air quality standards, impair or impede continued maintenance of those standards or progress toward achieving the attainment of state ambient air quality standards.(2)The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the district, as those rules or regulations existed on January 19, 2017, to obtain a permit or to meet best available control technology requirements. This paragraph only applies to a source that constituted a major source under the rules or regulations of a district that existed on January 19, 2017, and does not apply to any individual best available control technology determination.(3)The amended or revised rule or regulation is otherwise consistent with this division.(4)The amended or revised rule or regulation is consistent with any guidance approved by the state board regarding environmental justice.SEC. 4.Section 42505 of the Health and Safety Code is amended to read:42505.For purposes of this chapter, each districts new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to January 19, 2017, that have been submitted to the United States Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the United States Environmental Protection Agency, as well as any revisions to those rules necessary to address any deficiencies in rules and regulations identified by the United States Environmental Protection Agency in a disapproval or partial disapproval of a districts submitted rules and regulations.SEC. 5.Section 42506 of the Health and Safety Code is amended to read:42506.To assist in interpreting district rules and regulations governing new source review for nonattainment areas and for prevention of significant deterioration, the state board shall provide on its Internet Web site and in writing for purchase by the public, a copy of the federal new source review regulations as they existed on December 30, 2002, and January 19, 2017, and the United States Environmental Protection Agencys guidance document entitled, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting, (October 1990 Draft).SEC. 6.The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.SEC. 7.SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has have signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 19, 2017, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.Definitions120020.For purposes of this division, the following definitions apply:
(a)Baseline federal standards means federal laws or federal regulations implementing the federal laws in effect as of January 19, 2017.
(b)Baseline federal standards for other federal laws means other federal laws or federal regulations implementing the other federal laws in effect as of January 19, 2017.
(c)Federal law means any of the following:
(1)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(2)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(3)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(4)The Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).
(d)Other federal laws means any of the following:
(1)The federal Wild and Scenic Rivers Act (16 U.S.C. Sec. 1271 et seq.).
(2)The federal San Joaquin River Restoration Settlement Act (Part I of Subtitle A of Title X of Public Law 111-11).
(3)The federal Central Valley Project Improvement Act (Title 34 of Public Law 102-575).
3.Operative Provisions1.General120030.(a)Except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.
(b)Except as otherwise provided in state law, this This division does not prohibit a state or local agency from establishing rules and regulations for California that are more stringent than the baseline federal standards.
120031.(a)To the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to other federal laws shall not amend or revise its rules and regulations unless it determines that an amendment or revision would make the state rules or regulations at least as stringent as the baseline federal standards for other federal laws. This to be less stringent than the baseline federal standards for other federal laws.
(b)This division does not prohibit a state or local agency from establishing rules or regulations for California that are more stringent than the baseline federal standards for other federal laws.
2.Air120040.The Legislature finds and declares both of the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and Division 26 (commencing with Section 39000) of the Health and Safety Code are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act or its implementing regulations, In addition to maintaining air quality requirements and standards under state law, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards to be at least as stringent as the baseline federal standards, as determined by the state board or an air district, in addition to air quality requirements and standards required under state law.
(b)If the State Air Resources Board determines that a federal law or regulation has baseline federal standards regarding air quality have been repealed, revised, or amended to be less stringent than the baseline federal standards, stringent, the state board shall adopt a standard or requirement to be at least as stringent as the baseline federal standards, as determined by the state board, in the instance that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards. board.
(c)Notwithstanding the repeal, revision, or amendment of any federal requirements for a state implementation plan that would make those requirements less stringent than the baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt state implementation plans for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.
(d)If the state board determines the federal transportation conformity program is repealed or becomes less stringent than the applicable baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt and implement requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.
(e)If the state board determines that the United States Environmental Protection Agency repealed or no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, then, where an air quality management district or air pollution control district has not received authority to issue prevention of significant deterioration permits, the State Air Resources Board shall establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards, as determined by the state board.
(f)Notwithstanding any other law, the State Air Resources Board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
3.Water120050.The Legislature finds and declares all of the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.Except as otherwise authorized by state law, all of the following apply:
(a)(1)To ensure no backsliding as a result of any change in the federal Clean Water Act, In addition to maintaining and enforcing water supply and water quality standards under state law, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards that are to be at least as stringent as required by the applicable baseline federal standards, as determined by the State Water Resources Control Board or the regional water quality control boards, in addition to those required by state law. boards.
(2)To ensure no backsliding as a result of any change in the federal Safe Drinking Water Act, In addition to maintaining and enforcing drinking water standards under state law, the State Water Resources Control Board shall maintain and enforce all drinking water standards that are to be at least as stringent as required by the applicable baseline federal standards, as determined by the board, in addition to those required by state law. board.
(b)(1)If the State Water Resources Control Board determines that a water quality standard or requirement has baseline federal standards regarding water supply, water quality, or drinking water standards have been revised or amended to be less stringent than the baseline federal standards, stringent, the board shall adopt the a standard or requirement to be at least as stringent as the baseline federal standards, as determined by the board, in the instance that the board has not established a standard or requirement for which a water quality standard or requirement exists in the federal baseline standards. board.
(2)If the State Water Resources Control Board determines that a drinking water standard or requirement has been revised or amended to be less stringent than the baseline federal standards, the board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards, as determined by the board, in the instance that the board has not established a drinking water standard or requirement for which a standard or requirement exists in the baseline federal standards.(c)(1)Waste discharge requirements and permits that are issued on and after January 1, 2018, shall be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(2)Drinking water supply permits that are issued on and after January 1, 2018, shall be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable baseline federal standards, in addition to those required by state law.
(d)A water quality control plan adopted on or after January 1, 2018, shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(e)When a waste discharge requirement or water quality control plan is renewed or amended, any water quality standards, effluent limitations, restrictions, and conditions shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(f)Notwithstanding any other law, the State Water Resources Control Board or a regional water quality control board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
4.Endangered and Threatened Species120060.The Legislature finds and declares both of the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code.
120061.Except as otherwise authorized by state law, both of the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act of 1973, all All native species not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, shall be listed as an endangered or threatened species, as appropriate, pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.
(b)Any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, shall only authorize incidental take if it requires conditions at least as stringent as required by the federal Endangered Species Act of 1973 and applicable regulations in effect as of January 19, 2017, as determined by the Department of Fish and Wildlife, including, but not limited to, any federal incidental take statement, incidental take permit, or biological opinion in effect and applicable to a permittee or project as of January 19, 2017. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code.
(c)Notwithstanding any other law, the commission or the Department of Fish and Wildlife, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
120062.To the extent authorized by the federal Reclamation Act of 1902 (Public Law 57-161) and other federal law, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651 et seq.), the Federal Coal Mine Safety and Health Health and Safety Act of 1969, as amended (30 U.S.C. Sec. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is less stringent, as determined by the state agency, in its protection of workers rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
120111.Except as otherwise provided in state law, this This division does not prohibit a state agency from establishing workers rights and worker safety standards for California that are more stringent, as determined by the state agency, than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.Every state agency, including the Department of Justice, shall undertake all feasible efforts using its authority under state and federal law to implement and enforce this title. Notwithstanding Section 10231.5, every state agency that takes steps to enforce this title shall submit a report to the Legislature, in compliance with Section 9795 of the Government Code, at least once every six months describing its compliance with this title.
120201.(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to subdivision (b) of Section 120041 Article 2 (commencing with Section 120040) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those standards or requirements, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, counsel of an air district, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, counsel of an air district, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in Article 2 (commencing with Section 120040) of Chapter 3 of Division 1 Section 120041 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those standards or requirements if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding water supply and quality described in paragraph (1) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United States Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those standards or requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements regarding drinking water described in paragraph (2) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest to enforce the requirements of the California Endangered Species Act for a species listed pursuant to Article 4 (commencing with Section 120060) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in Article 4 (commencing with Section 120060) of Chapter 3 of Division 1 to be less protective than the applicable federal requirements described in that section.
(B)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or Section 42501 or 42504 of the Health and Safety Code.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1032 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 2.Section 42501 of the Health and Safety Code is amended to read:42501.The Legislature finds and declares all of the following:
(a)For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the requisite level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality.
(b)Requiring controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying emission controls when those sources are overhauled or upgraded. Without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed.
(c)The new source review program has been a cornerstone of the states efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the requisite level of emission controls based on the attainment status of the area where the source is located.
(d)The United States Environmental Protection Agency (USEPA) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states.
(e)On December 31, 2002, the USEPA, under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)). In promulgating the regulatory amendments, the USEPA claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Californias experience under the new source review programs of the air pollution control and air quality management districts.
(f)The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The USEPA has also proposed a rule that will change the definition of routine maintenance, repair and replacement. If that rule is finalized, it will significantly worsen the situation.
(g)The newly revised and proposed federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of California and thereby threaten the health and safety of the people of the State of California.
(h)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to the federal Clean Air Act and the programs and protections they provide, as well as to the underlying science that makes these programs and protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(i)Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the state has primary responsibility for meeting ambient air quality standards in all areas of the state, and that the means to achieve the standards shall be set out in the state implementation plan, or SIP.
(j)Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are at least as stringent as the new federal revised base program, and that the federal regulations certainly do not have the goal of preempting State creativity or innovation. (67 Fed.Reg. 80241 (Dec. 31, 2002)).
SEC. 3.Section 42504 of the Health and Safety Code is amended to read:42504.(a)An air district shall not amend or revise its new source review rules or regulations to be less stringent than those in effect on January 19, 2017. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations in effect on January 19, 2017, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b).
(b)(1)In amending or revising its new source review rules or regulations, a district shall not change any of the following that existed on January 19, 2017, if the amendments or revisions would exempt, relax, or reduce the obligations of a stationary source for any of the requirements listed in paragraph (2):
(A)The applicability determination for new source review.
(B)The definition of modification, major modification, routine maintenance, or repair or replacement.
(C)The calculation methodology, threshold, or other procedures of new source review.
(D)Any definitions or requirements of the new source review regulations.
(2)(A)Any requirements to obtain new source review or other permits to construct, prior to the commencement of construction.
(B)Any requirements for best available control technology (BACT).
(C)Any requirements for air quality impact analysis.
(D)Any requirements for recordkeeping, monitoring, and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.
(E)Any requirements for regulating any air pollutant covered by the new source review rules and regulations.
(F)Any requirements for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to the issuance of permits to construct.
(c)In amending or revising its new source review rules or regulations, a district may change any of the items in paragraph (1) of subdivision (b) only if the change is more stringent than the new source review rules or regulations in effect on January 19, 2017.
(d)Notwithstanding subdivisions (a), (b), and (c), a district may amend or revise a rule or regulation if a district board, at the time the amendments or revisions are adopted, makes its decision based upon substantial evidence in the record, the amendments or revisions are submitted to and approved by the state board after a public hearing, and all of the following conditions are met:
(1)The amended or revised rule or regulation will do one of the following:
(A)Will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety.
(B)Will replace an existing rule or regulation that has been found to be unworkable due to engineering or other technical problems with a rule or regulation that is effective.
(C)Will allow an amendment to an existing rule or regulation that otherwise will cause substantial hardship to a business, industry, or category of sources, if all of the following criteria are met:
(i)The amendment is narrowly tailored to relieve the identified hardship.
(ii)The district provides equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants.
(iii)All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely. For the purposes of this clause, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants.
(iv)Information regarding the reductions in emissions of air contaminants is available to the public.
(D)Is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency.
(E)Will not, if the district is in attainment with all national ambient air quality standards, impair or impede continued maintenance of those standards or progress toward achieving the attainment of state ambient air quality standards.
(2)The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the district, as those rules or regulations existed on January 19, 2017, to obtain a permit or to meet best available control technology requirements. This paragraph only applies to a source that constituted a major source under the rules or regulations of a district that existed on January 19, 2017, and does not apply to any individual best available control technology determination.
(3)The amended or revised rule or regulation is otherwise consistent with this division.
(4)The amended or revised rule or regulation is consistent with any guidance approved by the state board regarding environmental justice.
SEC. 4.Section 42505 of the Health and Safety Code is amended to read:42505.For purposes of this chapter, each districts new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to January 19, 2017, that have been submitted to the United States Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the United States Environmental Protection Agency, as well as any revisions to those rules necessary to address any deficiencies in rules and regulations identified by the United States Environmental Protection Agency in a disapproval or partial disapproval of a districts submitted rules and regulations.
SEC. 5.Section 42506 of the Health and Safety Code is amended to read:42506.To assist in interpreting district rules and regulations governing new source review for nonattainment areas and for prevention of significant deterioration, the state board shall provide on its Internet Web site and in writing for purchase by the public, a copy of the federal new source review regulations as they existed on December 30, 2002, and January 19, 2017, and the United States Environmental Protection Agencys guidance document entitled, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting, (October 1990 Draft).
SEC. 6.The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 7.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, 19, 2017, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.Definitions120020.For purposes of this division, the following definitions apply:
(a)Baseline federal standards means the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent. effect as of January 19, 2017.
(b)Baseline federal standards for other federal laws means the authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent. effect as of January 19, 2017.
(c)Federal law means any of the following:
(1)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(2)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(3)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(4)The Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).
(d)Other federal laws means any other federal law not specified in paragraphs (1) to (4), inclusive, of subdivision (c) relating to environmental protection, natural resources, or public health. of the following:
(1)The federal Wild and Scenic Rivers Act (16 U.S.C. Sec. 1271 et seq.).
(2)The federal San Joaquin River Restoration Settlement Act (Part I of Subtitle A of Title X of Public Law 111-11).
(3)The federal Central Valley Project Improvement Act (Title 34 of Public Law 102-575).
3.Operative Provisions1.General120030.(a)Except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.
(b)Except as otherwise provided in state law, this division does not prohibit a state or local agency may establish from establishing rules and regulations for California that are more stringent than the baseline federal standards.
120031.To the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to the other federal laws shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards for other federal laws, but may establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws. unless it determines that an amendment or revision would make the state rules or regulations at least as stringent as the baseline federal standards for other federal laws. This division does not prohibit a state or local agency from establishing rules or regulations for California that are more stringent than the baseline federal standards for other federal laws.
2.Air120040.The Legislature finds and declares both of the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and the California Clean Air Act (Division Division 26 (commencing with Section 39000) of the Health and Safety Code) Code are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans (SIPs) for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act or its implementing regulations, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards that are to be at least as stringent as required by the baseline federal standards, as determined by the state board or an air district, in addition to those air quality requirements and standards required under state law.
(b)To the extent that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards, the State Air Resources Board If the State Air Resources Board determines that a federal law or regulation has been repealed, revised, or amended to be less stringent than the baseline federal standards, the state board shall adopt the a standard or requirement to be at least as stringent as the baseline federal standards. standards, as determined by the state board, in the instance that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards.
(c)The Notwithstanding the repeal, revision, or amendment of any federal requirements for a state implementation plan that would make those requirements less stringent than the baseline federal standards, the State Air Resources Board, regional air quality management districts, and air pollution control districts shall adopt SIPs state implementation plans for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.
(d)If the state board determines the federal transportation conformity program is repealed or becomes less stringent than the applicable baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt and implement equivalent requirements that are at least as stringent as those required by the applicable baseline federal standards, as determined by the state board or an air district, in addition to those required by state law.
(e)If the state board determines that the United States Environmental Protection Agency repealed or no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, then, where an air quality management district or air pollution control district has not received authority to issue prevention of significant deterioration permits, the State Air Resources Board shall immediately establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards. standards, as determined by the state board.
(f)Notwithstanding any other law, the State Air Resources Board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
3.Water120050.The Legislature finds and declares all of the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.Except as otherwise authorized by state law, all of the following apply:
(a)(1)To ensure no backsliding as a result of any change in the federal Clean Water Act, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards that are at least as stringent as required by the applicable baseline federal standards, as determined by the State Water Resources Control Board or the regional water quality control boards, in addition to those required by state law.
(2)To ensure no backsliding as a result of any change in the federal Safe Drinking Water Act, the State Water Resources Control Board shall maintain and enforce all drinking water standards that are at least as stringent as required by the applicable baseline federal standards, as determined by the board, in addition to those required by state law.
(b)(1)To the extent that If the State Water Resources Control Board has not established a water supply or determines that a water quality standard or requirement for which a standard or requirement exists in has been revised or amended to be less stringent than the baseline federal standards, the State Water Resources Control Board board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards. standards, as determined by the board, in the instance that the board has not established a standard or requirement for which a water quality standard or requirement exists in the federal baseline standards.
(2)To the extent that If the State Water Resources Control Board has not established determines that a drinking water standard or requirement for which a standard or requirement exists in has been revised or amended to be less stringent than the baseline federal standards, the State Water Resources Control Board board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards. standards, as determined by the board, in the instance that the board has not established a drinking water standard or requirement for which a standard or requirement exists in the baseline federal standards.
(c)(1)Waste discharge requirements and permits that are issued on and after January 1, 2018, shall be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal baseline standards, in addition to those required by state law.
(2)Drinking water supply permits that are issued on and after January 1, 2018, shall be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable baseline federal baseline standards, in addition to those required by state law.
(d)A water quality control plan adopted on or after January 1, 2018, shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(e)When a waste discharge requirement or water quality control plan is renewed or amended, any water quality standards, effluent limitations, restrictions, and conditions shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(f)Notwithstanding any other law, the State Water Resources Control Board or a regional water quality control board, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
4.Endangered and Threatened Species120060.The Legislature finds and declares all both of the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code.
120061.Except as otherwise authorized by state law, both of the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act of 1973, all native species not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, shall be listed as an endangered or threatened species, as appropriate, pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.
(b)Any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, shall only authorize incidental take if it requires conditions at least as stringent as required by the relevant baseline federal standards, federal Endangered Species Act of 1973 and applicable regulations in effect as of January 19, 2017, as determined by the Department of Fish and Wildlife, including, but not limited to, any federal incidental take statement, incidental take permit, or biological opinion in effect and applicable to a permittee or project as of January 1, 2016, or January 1, 2017, whichever is more stringent. January 19, 2017. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code.
(c)Notwithstanding any other law, the commission or the Department of Fish and Wildlife, when adopting regulations pursuant to this article, may adopt those regulations in accordance with Section 100 of Title 1 of the California Code of Regulations and the regulations shall be deemed to be a change without regulatory effect pursuant to paragraph (6) of subdivision (a) of that section.
120062.To the extent authorized by the federal Reclamation Act of 1902 (Public Law 57-161) and other federal law, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Sec. 651 et seq.), the Federal Coal Mine Safety and Health Act of 1969, as amended (30 U.S.C. Sec. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is less stringent stringent, as determined by the state agency, in its protection of workers rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
120111.Except as otherwise provided in state law, this division does not prohibit a state agency may establish from establishing workers rights and worker safety standards for California that are more stringent stringent, as determined by the state agency, than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.Every state agency, including the Department of Justice, shall undertake all feasible efforts using its authority under state and federal law to implement and enforce this title. Notwithstanding Section 10231.5, every state agency that takes steps to enforce this title shall submit a report to the Legislature, in compliance with Section 9795 of the Government Code, at least once every six months describing its compliance with this title.
120201.(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to subdivision (b) of Section 120041 or to impose civil penalties for a violation of those standards or requirements pursuant to those acts, requirements, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, counsel of an air district, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, counsel of an air district, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of those acts is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in subdivision (b) of Section 120041 Article 2 (commencing with Section 120040) of Chapter 3 of Division 1 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (1) of subdivision (b) of Section 120051 Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met. requirements if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, county counsel, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, county counsel, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (1) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United States Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (2) of subdivision (b) of Section 120051 Article 3 (commencing with Section 120050) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (2) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest to enforce the requirements of the California Endangered Species Act for a species listed pursuant to subdivision (a) of Section 120061 Article 4 (commencing with Section 120060) of Chapter 3 of Division 1 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) (b) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in subdivision (a) of Section 120061 Article 4 (commencing with Section 120060) of Chapter 3 of Division 1 to be less protective than the applicable baseline federal standards. federal requirements described in that section.
(B)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or Section 42501 or 42504 of the Health and Safety Code.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1033 1032 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 2.Section 42501 of the Health and Safety Code is amended to read:42501.The Legislature finds and declares all of the following:
(a)For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the requisite level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality.
(b)Requiring controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying emission controls when those sources are overhauled or upgraded. Without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed.
(c)The new source review program has been a cornerstone of the states efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the requisite level of emission controls based on the attainment status of the area where the source is located.
(d)The United States Environmental Protection Agency (USEPA) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states.
(e)On December 31, 2002, the USEPA, under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)). In promulgating the regulatory amendments, the USEPA claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Californias experience under the new source review programs of the air pollution control and air quality management districts.
(f)The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The USEPA has also proposed a rule that will change the definition of routine maintenance, repair and replacement. If that rule is finalized, it will significantly worsen the situation.
(g)The newly revised and proposed federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of California and thereby threaten the health and safety of the people of the State of California.
(h)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to the federal Clean Air Act and the programs and protections they provide, as well as to the underlying science that makes these programs and protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(i)Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the state has primary responsibility for meeting ambient air quality standards in all areas of the state, and that the means to achieve the standards shall be set out in the state implementation plan, or SIP.
(j)Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are at least as stringent as the new federal revised base program, and that the federal regulations certainly do not have the goal of preempting State creativity or innovation. (67 Fed.Reg. 80241 (Dec. 31, 2002)).
SEC. 3.Section 42504 of the Health and Safety Code is amended to read:42504.(a)An air district shall not amend or revise its new source review rules or regulations to be less stringent than those that existed on January 1, 2016, or January 1, 2017, whichever is more stringent. in effect on January 19, 2017. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on January 1, 2016, or January 1, 2017, whichever is more stringent, in effect on January 19, 2017, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b).
(b)(1)In amending or revising its new source review rules or regulations, a district shall not change any of the following that existed on January 1, January 19, 2017, if the amendments or revisions would exempt, relax, or reduce the obligations of a stationary source for any of the requirements listed in paragraph (2):
(A)The applicability determination for new source review.
(B)The definition of modification, major modification, routine maintenance, or repair or replacement.
(C)The calculation methodology, threshold, or other procedures of new source review.
(D)Any definitions or requirements of the new source review regulations.
(2)(A)Any requirements to obtain new source review or other permits to construct, prior to the commencement of construction.
(B)Any requirements for best available control technology (BACT).
(C)Any requirements for air quality impact analysis.
(D)Any requirements for recordkeeping, monitoring, and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.
(E)Any requirements for regulating any air pollutant covered by the new source review rules and regulations.
(F)Any requirements for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to the issuance of permits to construct.
(c)In amending or revising its new source review rules or regulations, a district may change any of the items in paragraph (1) of subdivision (b) only if the change is more stringent than the new source review rules or regulations that existed on January 1, 2016, or January 1, 2017, whichever is more stringent. in effect on January 19, 2017.
(d)Notwithstanding subdivisions (a), (b), and (c), a district may amend or revise a rule or regulation if a district board, at the time the amendments or revisions are adopted, makes its decision based upon substantial evidence in the record, the amendments or revisions are submitted to and approved by the state board after a public hearing, and all of the following conditions are met:
(1)The amended or revised rule or regulation will do one of the following:
(A)Will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety.
(B)Will replace an existing rule or regulation that has been found to be unworkable due to engineering or other technical problems with a rule or regulation that is effective.
(C)Will allow an amendment to an existing rule or regulation that otherwise will cause substantial hardship to a business, industry, or category of sources, if all of the following criteria are met:
(i)The amendment is narrowly tailored to relieve the identified hardship.
(ii)The district provides equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants.
(iii)All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely. For the purposes of this clause, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants.
(iv)Information regarding the reductions in emissions of air contaminants is available to the public.
(D)Is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency.
(E)Will not, if the district is in attainment with all national ambient air quality standards, impair or impede continued maintenance of those standards or progress toward achieving the attainment of state ambient air quality standards.
(2)The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the district, as those rules or regulations existed on January 1, 19, 2017, to obtain a permit or to meet best available control technology requirements. This paragraph only applies to a source that constituted a major source under the rules or regulations of a district that existed on January 1, 19, 2017, and does not apply to any individual best available control technology determination.
(3)The amended or revised rule or regulation is otherwise consistent with this division.
(4)The amended or revised rule or regulation is consistent with any guidance approved by the state board regarding environmental justice.
SEC. 4.Section 42505 of the Health and Safety Code is amended to read:42505.For purposes of this chapter, each districts new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to January 1, 19, 2017, that have been submitted to the United States Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the United States Environmental Protection Agency. Agency, as well as any revisions to those rules necessary to address any deficiencies in rules and regulations identified by the United States Environmental Protection Agency in a disapproval or partial disapproval of a districts submitted rules and regulations.
SEC. 5.Section 42506 of the Health and Safety Code is amended to read:42506.To assist in interpreting district rules and regulations governing new source review for nonattainment areas and for prevention of significant deterioration, the state board shall provide on its Internet Web site and in writing for purchase by the public, a copy of the federal new source review regulations as they existed on December 30, 2002, January 1, 2016, and January 1, 19, 2017, and the United States Environmental Protection Agencys guidance document entitled, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting, (October 1990 Draft).
SEC. 6.The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 7.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.Definitions120020.For purposes of this division, the following definitions apply:
(a)Baseline federal standards means the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
(b)Baseline federal standards for other federal laws means the authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
(c)Federal law means any of the following:
(1)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(2)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(3)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(4)The Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).
(d)Other federal laws means any other federal law not specified in paragraphs (1) to (4), inclusive, of subdivision (c) relating to environmental protection, natural resources, or public health.
3.Operative Provisions1.General120030.(a)Except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.
(b)Except as otherwise provided in state law, a state or local agency may establish rules and regulations for California that are more stringent than the baseline federal standards.
120031.To the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to the other federal laws shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards for other federal laws, but may establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws.
2.Air120040.The Legislature finds and declares both of the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and the California Clean Air Act (Division 26 (commencing with Section 39000) of the Health and Safety Code) are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans (SIPs) for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act or its implementing regulations, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards that are at least as stringent as required by the baseline federal standards, in addition to those required under state law.
(b)To the extent that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards, the State Air Resources Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(c)The State Air Resources Board, regional air quality management districts, and air pollution control districts shall adopt SIPs for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, in addition to those required by state law.
(d)If the federal transportation conformity program becomes less stringent than the applicable baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt and implement equivalent requirements that are at least as stringent as those required by the applicable baseline federal standards, in addition to those required by state law.
(e)If the United States Environmental Protection Agency no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, then, where an air quality management district or air pollution control district has not received authority to issue prevention of significant deterioration permits, the State Air Resources Board shall immediately establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards.
3.Water120050.The Legislature finds and declares all of the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.Except as otherwise authorized by state law, all of the following apply:
(a)(1)To ensure no backsliding as a result of any change in the federal Clean Water Act, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
(2)To ensure no backsliding as a result of any change in the federal Safe Drinking Water Act, the State Water Resources Control Board shall maintain and enforce all drinking water standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
(b)(1)To the extent that the State Water Resources Control Board has not established a water supply or water quality standard or requirement for which a standard or requirement exists in the baseline federal standards, the State Water Resources Control Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(2)To the extent that the State Water Resources Control Board has not established a drinking water standard or requirement for which a standard or requirement exists in the baseline federal standards, the State Water Resources Control Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(c)(1)Waste discharge requirements and permits that are issued on and after January 1, 2018, shall be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as required by the applicable federal baseline standards, in addition to those required by state law.
(2)Drinking water supply permits that are issued on and after January 1, 2018, shall be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable federal baseline standards, in addition to those required by state law.
(d)A water quality control plan adopted on or after January 1, 2018, shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(e)When a waste discharge requirement or water quality control plan is renewed or amended, any water quality standards, effluent limitations, restrictions, and conditions shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
4.Endangered and Threatened Species120060.The Legislature finds and declares all of the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code.
120061.Except as otherwise authorized by state law, both of the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act, Act of 1973, all native species not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act of 1973 as of January 1, 2017, shall be listed as an endangered or threatened species, as appropriate, pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.
(b)Any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, shall only authorize incidental take if it requires conditions at least as stringent as required by the relevant baseline federal standards, including, but not limited to, any federal incidental take statement, incidental take permit, or biological opinion in effect and applicable to a permittee or project as of January 1, 2016, or January 1, 2017, whichever is more stringent. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code.
120062.To the extent authorized by the federal Reclamation Act of 1902 (Public Law 57-161) and other federal law, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Sec. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended, amended (29 U.S.C. Sec. 651 et seq.), the federal Federal Coal Mine Safety and Health Act of 1969, as amended, amended (30 U.S.C. Sec. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is 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.
120111.Except as otherwise provided in state law, a state agency may establish workers rights and worker safety standards for California that are more stringent than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.Every state agency, including the Department of Justice, shall undertake all feasible efforts using its authority under state and federal law to implement and enforce this title. Notwithstanding Section 10231.5, every state agency that takes steps to enforce this title shall submit a report to the Legislature, in compliance with Section 9795 of the Government Code, at least once every six months describing its compliance with this title.
120201.(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to subdivision (b) of Section 120041 or to impose civil penalties for a violation of those standards or requirements pursuant to those acts, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of those acts is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in subdivision (b) of Section 120041 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (1) of subdivision (b) of Section 120051 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (1) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United Sates States Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (2) of subdivision (b) of Section 120051 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (2) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest to enforce the requirements of the California Endangered Species Act for a species listed pursuant to subdivision (a) of Section 120061 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in subdivision (a) of Section 120061 to be less protective than the applicable baseline federal standards.
(B)The federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) is amended to restrict, condition, abridge, or repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or Section 42501 or 42504 of the Health and Safety Code.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1033 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 2.Section 42501 of the Health and Safety Code is amended to read:42501.The Legislature finds and declares all of the following:
(a)For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the requisite level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality.
(b)Requiring controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying emission controls when those sources are overhauled or upgraded. Without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed.
(c)The new source review program has been a cornerstone of the states efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the requisite level of emission controls based on the attainment status of the area where the source is located.
(d)The U.S. United States Environmental Protection Agency (U.S. E.P.A.) (USEPA) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states.
(e)On December 31, 2002, the U.S. E.P.A., USEPA, under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)). In promulgating the regulatory amendments, the U.S. E.P.A. USEPA claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Californias experience under the new source review programs of the air pollution control and air quality management districts.
(f)The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The U.S. E.P.A. USEPA has also proposed a rule that will change the definition of routine maintenance, repair and replacement. If that rule is finalized, it will significantly worsen the situation.
(g)The newly revised and proposed federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of California and thereby threaten the health and safety of the people of the State of California.
(h)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to the federal Clean Air Act and the programs and protections they provide, as well as to the underlying science that makes these programs and protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(i)Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the state has primary responsibility for meeting ambient air quality standards in all areas of the state, and that the means to achieve the standards shall be set out in the state implementation plan, or SIP.
(j)Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are at least as stringent as the new federal revised base program, and that the federal regulations certainly do not have the goal of preempting State creativity or innovation. (67 Fed.Reg. 80241 (Dec. 31, 2002)).
SEC. 3.Section 42504 of the Health and Safety Code is amended to read:42504.(a)An air district shall not amend or revise its new source review rules or regulations to be less stringent than those that existed on January 1, 2016, or January 1, 2017, whichever is more stringent. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on January 1, 2016, or January 1, 2017, whichever is more stringent, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b).
(b)(1)In amending or revising its new source review rules or regulations, a district shall not change any of the following that existed on January 1, 2017, if the amendments or revisions would exempt, relax, or reduce the obligations of a stationary source for any of the requirements listed in paragraph (2):
(A)The applicability determination for new source review.
(B)The definition of modification, major modification, routine maintenance, or repair or replacement.
(C)The calculation methodology, threshold, or other procedures of new source review.
(D)Any definitions or requirements of the new source review regulations.
(2)(A)Any requirements to obtain new source review or other permits to construct, prior to the commencement of construction.
(B)Any requirements for best available control technology (BACT).
(C)Any requirements for air quality impact analysis.
(D)Any requirements for recordkeeping, monitoring monitoring, and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.
(E)Any requirements for regulating any air pollutant covered by the new source review rules and regulations.
(F)Any requirements for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to the issuance of permits to construct.
(c)In amending or revising its new source review rules or regulations, a district may change any of the items in paragraph (1) of subdivision (b) only if the change is more stringent than the new source review rules or regulations that existed on January 1, 2016, or January 1, 2017, whichever is more stringent.
(d)Notwithstanding subdivisions (a), (b), and (c), a district may amend or revise a rule or regulation if a district board, at the time the amendments or revisions are adopted, makes its decision based upon substantial evidence in the record, the amendments or revisions are submitted to and approved by the state board after a public hearing, and each all of the following conditions is are met:
(1)The amended or revised rule or regulation will do one of the following:
(A)Will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety.
(B)Will replace an existing rule or regulation that has been found to be unworkable due to engineering or other technical problems with a rule or regulation that is effective.
(C)Will allow an amendment to an existing rule or regulation that otherwise will cause substantial hardship to a business, industry, or category of sources, if all of the following criteria are met:
(i)The amendment is narrowly tailored to relieve the identified hardship.
(ii)The district provides equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants.
(iii)All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely. For the purposes of this clause, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants.
(iv)Information regarding the reductions in emissions of air contaminants is available to the public.
(D)Is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency.
(E)Will not, if the district is in attainment with all national ambient air quality standards, impair or impede continued maintenance of those standards or progress toward achieving the attainment of state ambient air quality standards.
(2)The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the district, as those rules or regulations existed on January 1, 2017, to obtain a permit or to meet best available control technology requirements. This paragraph only applies to a source that constituted a major source under the rules or regulations of a district that existed on January 1, 2017, and does not apply to any individual best available control technology determination.
(3)The amended or revised rule or regulation is otherwise consistent with this division.
(4)The amended or revised rule or regulation is consistent with any guidance approved by the state board regarding environmental justice.
SEC. 4.Section 42505 of the Health and Safety Code is amended to read:42505.For purposes of this chapter, each districts new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to January 1, 2017, that have been submitted to the U.S. United States Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the U.S. United States Environmental Protection Agency.
SEC. 5.Section 42506 of the Health and Safety Code is amended to read:42506.To assist in interpreting district rules and regulations governing new source review for nonattainment areas and for prevention of significant deterioration, the state board shall provide on its Internet Web site and in writing for purchase by the public, a copy of the federal new source review regulations as they existed on December 30, 2002, January 1, 2016, and January 1, 2017, and the United States Environmental Protection Agencys guidance document entitled, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting, (October 1990 Draft).
SEC. 6.The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 7.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
This title shall be known, and may be cited, as the California Environmental, Public Health, and Workers Defense Act of 2017.
2.Environment, Natural Resources, and Public Health1.Findings and Declarations120010.The Legislature finds and declares all of the following:
(a)For over four decades, California and its residents have relied on federal laws, including the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.), and the federal Endangered Species Act (16 U.S.C. Sec 1531 et seq.), along with their implementing regulations and remedies, to protect our states public health, environment, and natural resources.
(b)These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
(c)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(d)It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if the federal laws specified in subdivision (a) are undermined, amended, or repealed.
120011.The purposes of this division are to do all of the following:
(a)Retain protections afforded under the federal laws specified in subdivision (a) of Section 120010 and regulations implementing those federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, regardless of actions taken at the federal level.
(b)Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
(c)Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the states national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
(d)Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
(e)Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
2.Definitions120020.For purposes of this division, the following definitions apply:
(a)Baseline federal standards means the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
(b)Baseline federal standards for other federal laws means the authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
(c)Federal law means any of the following:
(1)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(2)The federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.).
(3)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(4)The Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.).
(d)Other federal laws means any other federal law not specified in paragraphs (1) to (4), inclusive, of subdivision (c) relating to environmental protection, natural resources, or public health.
3.Operative Provisions1.General120030.(a)Except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.
(b)Except as otherwise provided in state law, a state or local agency may establish rules and regulations for California that are more stringent than the baseline federal standards.
120031.To the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to the other federal laws shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards for other federal laws, but may establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws.
2.Air120040.The Legislature finds and declares the following:
(a)The California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) and the California Clean Air Act (Division 26 (commencing with Section 39000) of the Health and Safety Code) are the state analogue to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.).
(b)The State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the state implementation plans (SIPs) for California under the federal Clean Air Act as well as regional and local air quality regulations, and issue permits governing the emission of certain substances, including greenhouse gases, into the air.
120041.Except as otherwise authorized by state law, all of the following apply:
(a)To ensure no backsliding as a result of any change in the federal Clean Air Act or its implementing regulations, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards that are at least as stringent as required by the baseline federal standards, in addition to those required under state law.
(b)To the extent that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards, the State Air Resources Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(c)The State Air Resources Board, regional air quality management districts, and air pollution control districts shall adopt SIPs for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, in addition to those required by state law.
(d)If the federal transportation conformity program becomes less stringent than the applicable baseline federal standards, the State Air Resources Board, air quality management districts, and air pollution control districts shall adopt and implement equivalent requirements that are at least as stringent as those required by the applicable baseline federal standards, in addition to those required by state law.
(e)If the United States Environmental Protection Agency no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, then, where an air quality management district or air pollution control district has not received authority to issue prevention of significant deterioration permits, the State Air Resources Board shall immediately establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards.
3.Water120050.The Legislature finds and declares the following:
(a)The Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code) is the state analogue to the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), otherwise known as the federal Clean Water Act.
(b)The California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 103 of the Health and Safety Code) is the state analogue to the federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.).
(c)The State Water Resources Control Board administers water rights and, together with the regional water quality control boards, implements the federal Clean Water Act and the Porter-Cologne Water Quality Control Act to preserve, protect, enhance, and restore water quality by setting statewide policy, formulating and adopting water quality control plans, setting standards, issuing permits and waste discharge requirements, determining compliance with those permits and waste discharge requirements, and taking appropriate enforcement actions.
(d)The State Water Resources Control Board regulates public drinking water systems pursuant to the federal Safe Drinking Water Act and the California Safe Drinking Water Act to ensure the delivery of safe drinking water to Californians.
120051.Except as otherwise authorized by state law, the following apply:
(a)(1)To ensure no backsliding as a result of any change in the federal Clean Water Act, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
(2)To ensure no backsliding as a result of any change in the federal Safe Drinking Water Act, the State Water Resources Control Board shall maintain and enforce all drinking water standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
(b)(1)To the extent that the State Water Resources Control Board has not established a water supply or water quality standard or requirement for which a standard or requirement exists in the baseline federal standards, the State Water Resources Control Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(2)To the extent that the State Water Resources Control Board has not established a drinking water standard or requirement for which a standard or requirement exists in the baseline federal standards, the State Water Resources Control Board shall adopt the standard or requirement to be at least as stringent as the baseline federal standards.
(c)(1)Waste discharge requirements and permits that are issued on and after January 1, 2018, shall be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as required by the applicable federal baseline standards, in addition to those required by state law.
(2)Drinking water supply permits that are issued on and after January 1, 2018, shall be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable federal baseline standards, in addition to those required by state law.
(d)A water quality control plan adopted on or after January 1, 2018, shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
(e)When a waste discharge requirement or water quality control plan is renewed or amended, any water quality standards, effluent limitations, restrictions, and conditions shall be at least as protective of the environment pursuant to, and in compliance with, all applicable water quality standards, effluent limitations, and restrictions as required by the applicable baseline federal standards, in addition to those required by state law.
4.Endangered and Threatened Species120060.The Legislature finds and declares the following:
(a)The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) is the state analogue to the federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.).
(b)The California Endangered Species Act prohibits the taking of any species that the Fish and Game Commission determines to be endangered or threatened, unless the Department of Fish and Wildlife allows for take incidental to otherwise lawful activity pursuant to subdivision (b) of Section 2081 of the Fish and Game Code.
120061.Except as otherwise authorized by state law, both of the following apply:
(a)To ensure no backsliding as a result of any change to the federal Endangered Species Act, all native species not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act as of January 1, 2017, shall be listed as an endangered or threatened species, as appropriate, pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.
(b)Any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, shall only authorize incidental take if it requires conditions at least as stringent as required by the relevant baseline federal standards, including, but not limited to, any federal incidental take statement, incidental take permit, or biological opinion in effect and applicable to a permittee or project as of January 1, 2016, or January 1, 2017, whichever is more stringent. This subdivision does not modify the requirements of Section 2081 of the Fish and Game Code.
120062.To the extent authorized by the federal Reclamation Act of 1902 (Public Law 57-161) and other federal law, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
3.Labor Standards1.Definitions120100.For purposes of this division, the following definitions apply:
(a)Federal law means the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. Secs. 201 et seq.), the federal Occupational Safety and Health Act of 1970, as amended, (29 U.S.C. Secs. 651 et seq.), the federal Mine Safety and Health Act of 1969, as amended, (30 U.S.C. Secs. 801 et seq.), and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
(b)State agency means a state agency designated by law to implement the federal law or its state analogue.
2.Operative Provisions120110.Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is 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.
120111.Except as otherwise provided in state law, a state agency may establish workers rights and worker safety standards for California that are more stringent than those provided in federal law in existence as of January 1, 2016.
4.Miscellaneous120200.Every state agency, including the Department of Justice, shall undertake all feasible efforts using its authority under state and federal law to implement and enforce this title. Notwithstanding Section 10231.5, every state agency that takes steps to enforce this title shall submit a report to the Legislature, in compliance with Section 9795 of the Government Code, at least once every six months describing its compliance with this title.
120201.(a)(1)(A)In addition to the enforcement provisions provided pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code) or Division 26 (commencing with Section 39000) of the Health and Safety Code, an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to subdivision (b) of Section 120041 or to impose civil penalties for a violation of those standards or requirements pursuant to those acts, if both of the following are satisfied:
(i)The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
(ii)Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor commenced and is diligently prosecuting an action against the violation.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of those acts is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in subdivision (b) of Section 120041 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) is amended to repeal the citizen suit provision set forth in Section 7604 of Title 42 of the United States Code.
(b)(1)(A)In addition to the enforcement provisions provided pursuant to the Porter-Cologne Water Quality Control Act (Division 7 (commencing with Section 13000) of the Water Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (1) of subdivision (b) of Section 120051 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (1) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) is amended to repeal the citizen suit provision set forth in Section 1365 of Title 33 of the United Sates Code.
(c)(1)(A)In addition to the enforcement provisions provided pursuant to the California Safe Drinking Water Act (Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code), an action may be brought by a person in the public interest to enforce the standards or requirements adopted pursuant to paragraph (2) of subdivision (b) of Section 120051 or to impose civil penalties for a violation of those standards or requirements pursuant to that act, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The United States Environmental Protection Agency revised the standards or requirements described in paragraph (2) of subdivision (b) of Section 120051 to be less stringent than the applicable baseline federal standards.
(B)The federal Safe Drinking Water Act (42 U.S.C. Sec. 300f et seq.) is amended to repeal the citizen suit provision set forth in Section 300j-8 of Title 42 of the United States Code.
(d)(1)(A)In addition to the enforcement provisions provided pursuant to the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), an action may be brought by a person in the public interest to enforce the requirements of the California Endangered Species Act for a species listed pursuant to subdivision (a) of Section 120061 or to impose civil penalties for a violation of those requirements, if the requirements set forth in clauses (i) and (ii) of subparagraph (A) of paragraph (1) of subdivision (a) are met.
(B)A person bringing an action in the public interest pursuant to subparagraph (A) and a person filing an action in which a violation of that act is alleged shall notify the Attorney General that the action has been filed.
(2)Paragraph (1) is operative only if either of the following occurs:
(A)The relevant federal agency revised the standards or requirements for the protection of species described in subdivision (a) of Section 120061 to be less protective than the applicable baseline federal standards.
(B)The federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.) is amended to repeal the citizen suit provision set forth in Section 1540 of Title 16 of the United States Code.
(e)An action or proceeding may be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or Section 42501 or 42504 of the Health and Safety Code.
(f)The court may award attorneys fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1033 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to this section.
120202.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 2.Section 42501 of the Health and Safety Code is amended to read:42501.The Legislature finds and declares all of the following:
(a)For over 25 years, the federal Clean Air Act (42 U.S.C. Sec. 7401, et seq.) has required major new and modified sources of air pollution to be subject to a new source review program for nonattainment areas and for the prevention of significant deterioration, in order to ensure that those sources use the requisite level of emission control, offset any new emissions, and comply with other requirements, as a means of ensuring that those new and modified sources do not adversely affect air quality.
(b)Requiring controls and emission offsets for new and modified sources ensures that industrial growth does not result in unacceptable levels of air pollution and that existing sources operate more cleanly over time by applying emission controls when those sources are overhauled or upgraded. Without these limits, air quality would degrade over time, and industrial growth, critical to the economic health of the state, would be foreclosed.
(c)The new source review program has been a cornerstone of the states efforts to reduce pollution from new and existing industrial sources by requiring those sources to use the requisite level of emission controls based on the attainment status of the area where the source is located.
(d)The U.S. Environmental Protection Agency (U.S. E.P.A.) initially promulgated, and subsequently has revised, the new source review program to carry out the requirements of the federal Clean Air Act for preconstruction review of new and modified sources of air pollutants by the states.
(e)On December 31, 2002, the U.S. E.P.A., under the direction of the President of the United States, promulgated regulations that substantially weaken the basic federal new source review program (67 Fed.Reg. 80186-80289 (Dec. 31, 2002)). In promulgating the regulatory amendments, the U.S. E.P.A. claims that the new source review program has impeded or resulted in the cancellation of projects that would maintain or improve reliability, efficiency, and safety. This claim is contradicted by Californias experience under the new source review programs of the air pollution control and air quality management districts.
(f)The amendments promulgated December 31, 2002, will drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review. The U.S. E.P.A. has also proposed a rule that will change the definition of routine maintenance, repair and replacement. If that rule is finalized, it will significantly worsen the situation.
(g)The newly revised and proposed federal new source review reneges on the promise of clean air embodied in the federal Clean Air Act, and threatens to undermine the air quality of the State of California and thereby threaten the health and safety of the people of the State of California.
(h)Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to the federal Clean Air Act and the programs and protections they provide, as well as to the underlying science that makes these programs and protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
(h)(i)Section 107 of the federal Clean Air Act (42 U.S.C. Sec. 7407) provides that the state has primary responsibility for meeting ambient air quality standards in all areas of the state, and that the means to achieve the standards shall be set out in the state implementation plan, or SIP.
(i)(j)Section 116 of the federal Clean Air Act (42 U.S.C. Sec. 7416) preserves the right of states to adopt air pollution control requirements that are more stringent than comparable federal requirements. Moreover, the recent revisions to the federal new source review regulations provide that the states may adopt permitting programs that are at least as stringent as the new federal revised base program, and that the federal regulations certainly do not have the goal of preempting State creativity or innovation. (67 Fed.Reg. 80241 (Dec. 31, 2002)).
SEC. 3.Section 42504 of the Health and Safety Code is amended to read:42504.(a)No An air quality management district or air pollution control district may shall not amend or revise its new source review rules or regulations to be less stringent than those that existed on December 30, 2002. January 1, 2016, or January 1, 2017, whichever is more stringent. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on December 30, 2002, January 1, 2016, or January 1, 2017, whichever is more stringent, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b).
(b)(1)In amending or revising its new source review rules or regulations, a district may shall not change any of the following that existed on December 30, 2002, January 1, 2017, if the amendments or revisions would exempt, relax relax, or reduce the obligations of a stationary source for any of the requirements listed in paragraph (2):
(A)The applicability determination for new source review.
(B)The definition of modification, major modification, routine maintenance, or repair or replacement.
(C)The calculation methodology, thresholds threshold, or other procedures of new source review.
(D)Any definitions or requirements of the new source review regulations.
(2)(A) Any requirements to obtain new source review or other permits to construct, prior to the commencement of construction.
(B)Any requirements for best available control technology (BACT).
(C)Any requirements for air quality impact analysis.
(D)Any requirements for recordkeeping, monitoring and reporting in a manner that would make recordkeeping, monitoring, or reporting less representative, enforceable, or publicly accessible.
(E)Any requirements for regulating any air pollutant covered by the new source review rules and regulations.
(F)Any requirements for public participation, including a public comment period, public notification, public hearing, or other opportunities or forms of public participation, prior to the issuance of permits to construct.
(c)In amending or revising its new source review rules or regulations, a district may change any of the items in paragraph (1) of subdivision (b) only if the change is more stringent than the new source review rules or regulations that existed on December 30, 2002. January 1, 2016, or January 1, 2017, whichever is more stringent.
(d)Notwithstanding subdivisions (a), (b), and (c), a district may amend or revise a rule or regulation if a district board, at the time the amendments or revisions are adopted, makes its decision based upon substantial evidence in the record, the amendments or revisions are submitted to and approved by the state board after a public hearing, and each of the following conditions is met:
(1)The amended or revised rule or regulation will do one of the following:
(A)Will replace an existing rule or regulation that caused a risk to public health or safety from exposure to a toxic material, a dangerous condition, or an infectious disease with a rule or regulation that provides greater protection to public health or safety.
(B)Will replace an existing rule or regulation that has been found to be unworkable due to engineering or other technical problems with a rule or regulation that is effective.
(C)Will allow an amendment to an existing rule or regulation that otherwise will cause substantial hardship to a business, industry, or category of sources, if all of the following criteria are met:
(i)The amendment is narrowly tailored to relieve the identified hardship.
(ii)The district provides equivalent reductions in emissions of air contaminants to offset any increase in emissions of air contaminants.
(iii)All reductions in emissions of air contaminants are real, surplus, quantifiable, verifiable, enforceable, and timely. For the purposes of this clause, reductions are timely if they occur no more than three years prior to, and no more than three years following, the occurrence of the increase in emissions of air contaminants.
(iv)Information regarding the reductions in emissions of air contaminants is available to the public.
(D)Is a temporary rule or regulation necessary to respond to an emergency consisting of a sudden, unexpected occurrence and demanding prompt action to prevent or mitigate loss of or damage to life, health, property, or essential services and the temporary rule or regulation does not extend beyond the reasonably anticipated duration of the emergency.
(E)Will not, if the district is in attainment with all national ambient air quality standards, impair or impede continued maintenance of those standards or progress toward achieving the attainment of state ambient air quality standards.
(2)The amended or revised rule or regulation will not exempt, relax, or reduce the obligation of any stationary source under the rules or regulations of the district, as those rules or regulations existed on December 30, 2002, January 1, 2017, to obtain a permit or to meet best available control technology requirements. This paragraph only applies to a source that constituted a major source under the rules or regulations of a district that existed on December 30, 2002, January 1, 2017, and does not apply to any individual best available control technology determination.
(3)The amended or revised rule or regulation is otherwise consistent with this division.
(4)The amended or revised rule or regulation is consistent with any guidance approved by the state board regarding environmental justice.
SEC. 4.Section 42505 of the Health and Safety Code is amended to read:42505.For purposes of this chapter, each districts existing new new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to December 30, 2002, January 1, 2017, that have been submitted to the U.S. Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the U.S. Environmental Protection Agency.
SEC. 5.Section 42506 of the Health and Safety Code is amended to read:42506.In order to To assist in interpreting district rules and regulations governing new source review for nonattainment areas and for prevention of significant deterioration, the state board shall provide on its Internet Web site and in writing for purchase by the public, a copy of the federal new source review regulations as they existed on December 30, 2002, January 1, 2016, and January 1, 2017, and the United States Environmental Protection Agencys guidance document entitled, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting, (October 1990 Draft).
SEC. 6.The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 7.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by certain mandates in this act, within the meaning of Section 17556 of the Government Code.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2016.It is the intent of the Legislature to enact statutory changes relating to the Budget Act of 2016.
|
Date
|
Status
|
|---|---|
| Sep 12, 2017 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Sep 11, 2017 | Re-referred to Com. on RLS. pursuant to Assembly Rule 77.2. |
| Sep 8, 2017 | Read third time and amended. |
| Sep 6, 2017 | Read second time. Ordered to third reading. |
| Sep 5, 2017 | Read second time and amended. Ordered to second reading. |
| Sep 1, 2017 | From committee: Do pass as amended. (Ayes 10. Noes 5.) (September 1). |
| Aug 23, 2017 | August 23 set for first hearing. Placed on suspense file. |
| Jul 18, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 17, 2017 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 8. Noes 3.) (July 11). |
| Jul 10, 2017 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 6. Noes 3.) (July 10). Re-referred to Com. on JUD. |
| Jul 3, 2017 | Assembly Rule 56 suspended. |
| Jun 28, 2017 | From committee: Do pass and re-refer to Com. on NAT. RES. (Ayes 4. Noes 2.) (June 27). Re-referred to Com. on NAT. RES. |
| Jun 15, 2017 | Referred to Coms. on E.S. & T.M., NAT. RES., and JUD. |
| May 31, 2017 | In Assembly. Read first time. Held at Desk. |
| May 30, 2017 | Read third time. Passed. (Ayes 24. Noes 13. Page 1254.) Ordered to the Assembly. |
| May 26, 2017 | From committee: Do pass as amended. (Ayes 5. Noes 2.) (May 25). |
| May 19, 2017 | Set for hearing May 25. |
| May 15, 2017 | May 15 hearing: Placed on APPR. suspense file. |
| May 4, 2017 | Set for hearing May 15. |
| May 3, 2017 | May 8 hearing postponed by committee. |
| May 1, 2017 | Set for hearing May 8. |
| Apr 26, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2. Page 851.) (April 25). Re-referred to Com. on APPR. |
| Apr 13, 2017 | Set for hearing April 25. |
| Apr 5, 2017 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 5. Noes 2. Page 622.) (April 5). Re-referred to Com. on JUD. |
| Mar 21, 2017 | Set for hearing April 5. |
| Mar 14, 2017 | From committee: Do pass and re-refer to Com. on EQ. (Ayes 7. Noes 2. Page 363.) (March 14). Re-referred to Com. on EQ. |
| Mar 3, 2017 | Set for hearing March 14. |
| Mar 2, 2017 | Re-referred to Coms. on N.R. & W., EQ., and JUD. |
| Feb 22, 2017 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Feb 15, 2017 | Withdrawn from committee. |
| Jan 12, 2017 | Referred to Com. on B. & F.R. |
| Dec 6, 2016 | From printer. May be acted upon on or after January 5. |
| Dec 5, 2016 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 8, 2017 | SB 49 De León Senate Third Reading By STONE Amendment Set #1 | Assembly Floor |
Passed |
|
| Sep 1, 2017 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2017 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jul 10, 2017 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Natural Resources |
Passed |
|
| Jun 27, 2017 | Do pass and be re-referred to the Committee on [Natural Resources] | Assembly Standing Committee on Environmental Safety and Toxic Materials |
Passed |
|
| May 30, 2017 | Senate 3rd Reading SB49 De León et al. | Senate Floor |
Passed |
|
| May 25, 2017 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 15, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 25, 2017 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 5, 2017 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Environmental Quality |
Passed |
|
| Mar 14, 2017 | Do pass, but first be re-referred to the Committee on [Environmental Quality] | Senate Standing Committee on Natural Resources and Water |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 1 individual | ** Support | Apr 3, 2017 |
| 350 Bay Area | ** Support | Jul 10, 2017 |
| Agricultural Council Of California | ** Against | Jul 10, 2017 |
| all about wells | ** Support | Jul 10, 2017 |
| all good | ** Support | Jul 10, 2017 |
| Almond Alliance of California | ** Against | Jul 10, 2017 |
| American Coatings Association | ** Against | Jul 10, 2017 |
| American Federation of State, County and Municipal Employees | ** Support | Jun 23, 2017 |
| American Insurance Association | ** Against | Jul 10, 2017 |
| American Lung Association in California | ** Support | Jul 10, 2017 |
| American Rivers | ** Support | Jul 10, 2017 |
| American Whitewater | ** Support | Jul 10, 2017 |
| Arguments In Opposition: | ** Against | Apr 3, 2017 |
| Asian Pacific Environmental Network | ** Support | Jul 10, 2017 |
| Association Of California Egg Farmers | ** Against | Jul 10, 2017 |
| Association Of California Water Agencies | ** Against | Jul 10, 2017 |
| Audubon California | ** Support | Jul 10, 2017 |
| Audubon Society | ** Support | Jul 7, 2017 |
| Auto Care Association | ** Against | Jul 10, 2017 |
| Breast Cancer Prevention Partners | ** Support | Jul 10, 2017 |
| BROWN M WEINRAUB PAC | * Support | Mar 14, 2017 |
| bureo skateboards | ** Support | Jul 10, 2017 |
| Butte Environmental Council | ** Support | Jul 10, 2017 |
| cal outdoors | ** Support | Jul 10, 2017 |
| California Association Of Realtors | ** Against | Jul 10, 2017 |
| California Association Of Wheat Growers | ** Against | Jul 10, 2017 |
| California Association Of Winegrape Growers | ** Against | Jul 10, 2017 |
| California Bean Shippers Association | ** Against | Jul 10, 2017 |
| California Bicycle Coalition | ** Support | Jul 10, 2017 |
| California Building Industry Association | ** Against | Jul 10, 2017 |
| California Business Properties Association | ** Against | Jul 10, 2017 |
| California Cattlemen'S Association | ** Against | Jul 10, 2017 |
| California Chamber Of Commerce | ** Against | Jul 10, 2017 |
| California Citrus Mutual | ** Against | Jul 10, 2017 |
| California Coastal Protection Network | ** Support | Jul 10, 2017 |
| California Coastkeeper Alliance | ** Support | Jul 10, 2017 |
| CALIFORNIA CONSTRUCTION & INDUSTRIAL MATERIALS ASSOCIATION | ** Against | Jul 10, 2017 |
| California Cotton Ginners & Growers Association | ** Against | Jul 10, 2017 |
| California Council For Environmental And Economic Balance | ** Against | Apr 3, 2017 |
| California Environmental Justice Alliance | ** Support | Jun 23, 2017 |
| California Farm Bureau Federation | ** Against | Jul 10, 2017 |
| California Forestry Association | ** Against | Jul 10, 2017 |
| California Fresh Fruit Association | ** Against | Jul 10, 2017 |
| California Grain & Feed Association | ** Against | Jul 10, 2017 |
| California Independent Petroleum Association | ** Against | Jul 10, 2017 |
| California Interfaith Power & Light | ** Support | Jul 10, 2017 |
| California Labor Federation, Afl-Cio | ** Support | Jul 10, 2017 |
| California League Of Conservation Voters | ** Support | Jul 10, 2017 |
| California League of Food Processors | ** Against | Jul 10, 2017 |
| California Licensed Foresters Association | ** Against | Jul 10, 2017 |
| California Manufacturers And Technology Association | ** Against | Jul 10, 2017 |
| California Metals Coalition | ** Against | Jul 10, 2017 |
| California Native Plant Society | ** Support | Jul 10, 2017 |
| California Paint Council | ** Against | Jul 10, 2017 |
| California Pear Growers | ** Against | Jul 10, 2017 |
| California Professional Firefighters | ** Support | Jul 7, 2017 |
| California Releaf | ** Support | Jul 10, 2017 |
| California Seed Association | ** Against | Jul 10, 2017 |
| California Sportfishing Protection Alliance | ** Support | Jun 23, 2017 |
| California Sportsfishing Protection Alliance | ** Support | Jul 10, 2017 |
| California State Association Of Electrical Workers | ** Support | Jul 10, 2017 |
| California State Floral Association | ** Against | Jul 10, 2017 |
| California Strawberries Commission | ** Against | Jun 23, 2017 |
| California Strawberry Commission | ** Against | Jul 10, 2017 |
| California Warehouse Association | ** Against | Jul 10, 2017 |
| California Water Impact Network | ** Support | Jul 10, 2017 |
| California Wilderness Coalition | ** Support | Jun 23, 2017 |
| california wildness coalition | ** Support | Jul 10, 2017 |
| California Women for Agriculture | ** Against | Jul 10, 2017 |
| Californians Together Coalition | * Support | Mar 14, 2017 |
| CAWA - Representing the Automotive Parts Industry | ** Against | Jul 10, 2017 |
| Center For Biological Diversity | ** Support | Jul 10, 2017 |
| Central California Asthma Collaborative | ** Support | Apr 3, 2017 |
| Central Valley Air Quality Coalition | ** Support | Jul 10, 2017 |
| channel islands surfboards | ** Support | Jul 10, 2017 |
| Chemical Industry Council Of California | ** Against | Jul 10, 2017 |
| ChicoBag Company | ** Support | Jul 10, 2017 |
| City of Los Angeles, Mayor Eric Garcetti | ** Support | Apr 3, 2017 |
| Civil Justice Association Of California | ** Against | Jul 10, 2017 |
| Clean Water Action | ** Support | Jul 10, 2017 |
| Coalition for a Safe Environment | ** Support | Jul 7, 2017 |
| Coalition For Clean Air | ** Support | Jul 10, 2017 |
| Coast Seafoods Company | ** Support | Jul 10, 2017 |
| Community Dreams | ** Support | Jul 7, 2017 |
| Conservation Program Director for the California Native Plants Society | * Support | Mar 14, 2017 |
| contech engineered solutions | ** Support | Jul 10, 2017 |
| Contra Costa Water District | ** Support | Jul 10, 2017 |
| davero farms & winery | ** Support | Jul 10, 2017 |
| Defenders Of Wildlife | ** Support | Jul 10, 2017 |
| Earth Friendly Products | ** Support | Jul 10, 2017 |
| East Bay Municipal Utility District | ** Support | Jun 23, 2017 |
| East Yard Communities for Environmental Justice | ** Support | Jul 7, 2017 |
| Engineers & Scientists of California | ** Support | May 27, 2017 |
| Environment California | ** Support | Jul 10, 2017 |
| Environment of California | * Support | Mar 14, 2017 |
| Environmental Defense Center | ** Support | Jul 10, 2017 |
| Environmental Defense Fund | ** Support | Jul 10, 2017 |
| Environmental Entrepreneurs | ** Support | Jul 7, 2017 |
| Environmental Working Group | ** Support | Jul 10, 2017 |
| exergy systems | ** Support | Jul 7, 2017 |
| Family Business Association of California | ** Against | Jul 10, 2017 |
| Foothill Conservancy | ** Support | Jul 10, 2017 |
| Forest Landowners Of California | ** Against | Jul 10, 2017 |
| Fossil Free California | ** Support | Jul 10, 2017 |
| Friends Committee On Legislation Of California | ** Support | Jul 10, 2017 |
| Friends of Harbors, Beaches and Parks | ** Support | Jul 10, 2017 |
| Friends Of The Earth | * Support | May 15, 2017 |
| Friends of the River | ** Support | Jul 10, 2017 |
| Greater San Fernando Valley Chamber of Commerce | ** Against | Jul 10, 2017 |
| h2hotel | ** Support | Jun 23, 2017 |
| half moon bay brewing | ** Support | Jul 10, 2017 |
| Heal The Bay | ** Support | Jul 10, 2017 |
| Hills for Everyone | ** Support | Jul 10, 2017 |
| Hog Island Oyster Company | ** Support | Jul 10, 2017 |
| hotel healdsburg | ** Support | Jun 23, 2017 |
| hotel healdsburg & h2hotel | ** Support | Jul 10, 2017 |
| Humane Society Of The United States | ** Support | Jul 10, 2017 |
| Humboldt Baykeeper | ** Support | Jun 23, 2017 |
| ifpte local 20, afl-cio | ** Support | May 27, 2017 |
| Inland Empire Waterkeeper | ** Support | Jun 23, 2017 |
| john paul mitchell systems | ** Support | Jul 10, 2017 |
| johnson's beach resort | ** Support | Jul 10, 2017 |
| KING TOP SALES CO | * Support | Mar 14, 2017 |
| Klamath Riverkeeper | ** Support | Jun 23, 2017 |
| Klean Kanteen | ** Support | Jun 23, 2017 |
| kleen kanteen | ** Support | Jul 10, 2017 |
| kokatat | ** Support | Jul 10, 2017 |
| League Of Women Voters Of California | ** Support | Jul 10, 2017 |
| Los Angeles Waterkeeper | ** Support | Jul 7, 2017 |
| mara hoffman | ** Support | Jul 10, 2017 |
| Marin County Board of Supervisors | ** Support | May 27, 2017 |
| Marin County Council of Mayors and Councilmembers | ** Support | May 27, 2017 |
| Medical Advocates for Healthy Air | ** Support | Apr 3, 2017 |
| Metal Finishing Association Of Northern California | ** Against | Jul 10, 2017 |
| Metal Finishing Association Of Southern California | ** Against | Jul 10, 2017 |
| mia lehrer + associates | ** Support | Jul 7, 2017 |
| mixte communications | ** Support | Jul 10, 2017 |
| Mono Lake Committee | ** Support | Jul 10, 2017 |
| Monterey Coastkeeper | ** Support | Jun 23, 2017 |
| Mountain Lion Foundation | ** Support | Jul 10, 2017 |
| National Federation Of Independent Business | ** Against | Jul 10, 2017 |
| National Parks Conservation Association | ** Support | Jul 10, 2017 |
| Natural Resources Defense Council | ** Support | Jul 10, 2017 |
| Natural Resources Defense Council (NRDC) | * Support | Mar 14, 2017 |
| nopa | ** Support | Jul 10, 2017 |
| nopalito | ** Support | Jul 10, 2017 |
| o.a.r.s. | ** Support | Jul 10, 2017 |
| okiino | ** Support | Jul 10, 2017 |
| Orange County Coastkeeper | ** Support | Jun 23, 2017 |
| Pacific Coast Federation of Fisherman's Association | * Support | Mar 14, 2017 |
| Pacific Egg and Poultry Association | ** Against | Jul 10, 2017 |
| pacific outfitters | ** Support | Jul 10, 2017 |
| Patagonia | ** Support | Jul 10, 2017 |
| PermaCity Solar | ** Support | Jul 10, 2017 |
| Pesticide Action Network | ** Support | Jul 10, 2017 |
| poseidon paddle & surf | ** Support | Jul 10, 2017 |
| Preservation Trust | ** Support | Apr 3, 2017 |
| Prevention Institute | ** Support | Jul 7, 2017 |
| purakai clothing | ** Support | Jul 10, 2017 |
| rei, san pedro | ** Support | Jun 23, 2017 |
| Restore the Delta | ** Support | Jul 10, 2017 |
| Russian Riverkeeper | ** Support | Jun 23, 2017 |
| Sacramento River Preservation Trust | ** Support | Jul 10, 2017 |
| Sacred Places Institute for Indigenous Peoples | * Support | Mar 14, 2017 |
| sagebrush board bags | ** Support | Jul 10, 2017 |
| salty girl seafood | ** Support | Jul 10, 2017 |
| samudra skin & sea | ** Support | Jul 10, 2017 |
| San Diego Coastkeeper | ** Support | Jun 23, 2017 |
| San Rafael/Marin County Council Of Mayors & Council Members, City Of | * Support | May 15, 2017 |
| Santa Barbara Channelkeeper | ** Support | Jun 23, 2017 |
| sea forager | ** Support | Jul 10, 2017 |
| SEIU California | ** Support | May 27, 2017 |
| SENIOR CARE | * Support | Mar 14, 2017 |
| Seventh Generation Advisors | ** Support | Jul 10, 2017 |
| shelter co. | ** Support | Jul 10, 2017 |
| Sierra Business Council | ** Support | Jul 7, 2017 |
| Sierra Club of California | ** Support | Jul 10, 2017 |
| Simi Valley Chamber of Commerce | ** Against | Jul 10, 2017 |
| simply straws | ** Support | Jul 10, 2017 |
| smiley's saloon & hotel | ** Support | Jul 10, 2017 |
| South Valley Water Association | ** Against | Jul 10, 2017 |
| South Yuba River Citizens League | ** Support | Jul 10, 2017 |
| Southwest California Legislative Council | ** Against | Jul 10, 2017 |
| State Building & Construction Trades Council | ** Support | Jul 10, 2017 |
| stokeshare | ** Support | Jul 10, 2017 |
| Surfrider Foundation | ** Support | Jul 10, 2017 |
| Sustainable Silicon Valley | ** Support | Jul 10, 2017 |
| The Bay Institute | ** Support | Jul 10, 2017 |
| The Environmental Justice Coalition for Water | ** Support | Jul 10, 2017 |
| The Inertia | ** Support | Jul 10, 2017 |
| The Nature Conservancy | ** Support | Jul 10, 2017 |
| The Ocean Conservancy | * Support | Mar 14, 2017 |
| The Otter Project | ** Support | Jun 23, 2017 |
| the River Project | ** Support | Jul 7, 2017 |
| The Trust For Public Land | ** Support | Jul 10, 2017 |
| three forks bakery & brewing co. | ** Support | Jul 10, 2017 |
| Trust for Public Land | * Support | Mar 14, 2017 |
| UAW Local 5810 | ** Support | Jul 7, 2017 |
| urban barrels | ** Support | Jul 10, 2017 |
| Valley Industry & Commerce Association | ** Against | Jul 10, 2017 |
| Voices for Progress | ** Support | Jul 7, 2017 |
| Voices For Progress Education Fund | ** Support | Jul 10, 2017 |
| West Coast Lumber & Building Material Association | ** Against | Jul 10, 2017 |
| Western Agricultural Processors Association | ** Against | Jul 10, 2017 |
| Western Growers Association | ** Against | Jul 10, 2017 |
| Western Plant Health Association | ** Against | Jul 10, 2017 |
| Western States Council Of Sheet Metal Workers | ** Support | Jul 10, 2017 |
| Western States Petroleum Association | ** Against | Jul 10, 2017 |
| Wholly H2O | ** Support | Jul 10, 2017 |
| Winnemem Wintu Tribe | ** Support | Jul 10, 2017 |
| Wishtoyo Chumash Foundation | ** Support | Jul 10, 2017 |
| yubadocs urgent care | ** Support | Jul 10, 2017 |
SENATE THIRD READING
STR Bill Id:SB 49
Author:(De León and Stern)
As Amended Ver:September 8, 2017
Majority vote
SENATE VOTE: 24-13
Committee | Votes | Ayes | Noes |
Environmental Safety | 4-2 | Quirk, Cristina Garcia, Friedman, Holden | Dahle, Chen |
Natural Resources | 6-3 | Cristina Garcia, Chau, Limón, McCarty, Muratsuchi, Mark Stone | Acosta, Travis Allen, Flora |
Judiciary | 8-3 | Mark Stone, Chau, Chiu, Cristina Garcia, Holden, Kalra, Reyes, Ting | Cunningham, Kiley, Maienschein |
Appropriations | 10-5 | Gonzalez Fletcher, Bloom, Bocanegra, Bonta, Calderon, Chau, Friedman, Eduardo Garcia, Jones-Sawyer, Reyes | Bigelow, Brough, Fong, Gallagher, Obernolte |
SUMMARY: Enacts the California Environmental, Public Health, and Workers Defense Act (Act) of 2017, which prohibits a state or local agency from amending or revising its rules to be less stringent than the federal baseline standards pertaining to environmental protection. Specifically, this bill:
1) Defines "baseline federal standards" as the federal laws or federal regulations implementing the federal Clean Air Act (CAA) in effect as of January 19, 2017; the federal laws or federal regulations implementing the federal Safe Drinking Water Act and the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA) in effect as of January 19, 2017; and, the federal laws, federal regulations, federal incidental take permits, and federal biological opinions implementing the federal Endangered Species Act of 1973 (ESA) in effect as of January 19, 2017.
2) Requires the California Air Resources Board (Air Board) to regularly assess proposed and final changes to federal statutes and regulations and if the Air Board finds that a change could result in a negative impact to the environment or public health or welfare in California, it shall take actions as necessary in order to maintain protections as least as stringent as the baseline federal standards.
3) Requires the State Water Resources Control Board (Water Board) to regularly assess proposed and final changes to federal statutes and regulations and if the Water Board finds that a change could result in a negative impact to the environment or public health or welfare in California, it shall take actions as necessary in order to maintain protections as least as stringent as the baseline federal standards.
4) States that if a species is delisted from the federal Endangered Species Act and is eligible for listing under California law, that species shall be listed on the California threatened or endangered species list and that listing shall be deemed to be a change without regulatory effect.
5) Defines "Federal law" as the federal Fair Labor Standards Act of 1938, the federal Occupational Safety and Health Act of 1970, the Federal Coal Mine Health and Safety Act of 1969, and other federal statutes relating to worker rights and protections and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
6) Prohibits a state agency from amending or revising its rules or regulations in a manner that is less stringent in its protection of worker's rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016. Authorizes a state agency to establish worker's rights and worker safety standards for California that are more stringent than those provided in federal law, as it existed on January 1, 2016.
7) States that the provisions allowing for a private right of action to enforce the standards in the Act are solely and exclusively to enforce the federal baseline standards as defined in the Act.
8) States that the provisions of the Act are severable and if any provision of the Act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
EXISTING LAW:
1) Establishes the federal CWA to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (U.S.C.) Section1251 et seq.)
2) Establishes the federal SDWA to set standards for drinking water quality and to oversee the states, localities, and water suppliers who implement those standards. (42 U.S.C. Section 300f et. seq.)
3) Establishes the federal ESA to protect and recover imperiled species and the ecosystems upon which they depend. (16 U.S.C. Section 1531 et. seq.)
4) Establishes the federal CAA to regulate air emissions from stationary and mobile sources. Requires the United States Environmental Protection Agency (US EPA) to establish National Ambient Air Quality Standards to protect public health and public welfare and to regulate emissions of hazardous air pollutants. (42 U.S.C. Section 7401 et seq.)
FISCAL EFFECT: According to the Assembly Appropriations Committee, enactment of this bill could result in increased ongoing annual costs to the Air Board of approximately $11 million to adopt state versions of specified federal rules, review existing standards to determine if they are as stringent as federal standards, and develop new regulations in response to federal rollbacks; increased costs of approximately $10 million to the Department of Fish and Wildlife (DFW) to list new species and process incidental take permits and make consistency determinations; increased costs to the State Water Board of up to $1 million to update regulations; and, increased unknown, but potentially significant costs to the Department of Justice associated with defending any and all private citizen lawsuits against state agencies for alleged failure to timely report to the Legislature and/or non-compliance with the bill's mandates.
COMMENTS: Need for the bill: According to the author, one of the main reasons for introducing this bill is out of concern that President Trump and his Administration would fulfill a campaign promise to withdraw from the landmark Paris Climate Agreement signed by 144 other nations, which the President has done since the bill was introduced. The United States is by far the largest emitter of climate pollution to secede from the treaty. Additionally, the author contends that, "The Trump Administration has signaled that it wants to "reexamine the science" used to set standards; reduce the staff at the US EPA by up to two-thirds which would gut its ability to set health based standards; and, make regulations more cost-effective and business-friendly. All of these actions are euphemisms for weakening environmental and public health protections. They are the precise motivations behind actions that lead to the drinking water disaster in Flint Michigan."
Federal Clean Air Act (CAA): The CAA regulates air emissions from stationary and mobile sources. Among other things, the CAA provides for national ambient air quality standards for major air pollutants, hazardous air pollutants standards, state attainment plans, motor vehicle emissions standards, stationary source emissions standards and permits, acid rain control measures, stratospheric ozone protection, and enforcement provisions.
Federal Clean Water Act (CWA): The federal CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Under the CWA, the US EPA has implemented pollution control programs, including setting wastewater standards for industrial facilities, and set water quality standards for all contaminants in surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters without a permit.
Federal Safe Drinking Water Act (SDWA): The federal SDWA was enacted in 1974 to protect public health by regulating drinking water. The US EPA enforces the federal SDWA at the national level. The federal SDWA authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic contaminants that may be found in drinking water.
The SDWA applies to every public water system in the United States. There are currently more than 170,000 public water systems providing water to almost all Americans at some time in their lives. The responsibility for making sure these public water systems provide safe drinking water is divided among US EPA, states, tribes, water systems, and the public. The SDWA provides a framework in which these parties work together to protect this valuable resource. Most states, including California, have been granted "primacy" by the US EPA, giving them the authority to implement and enforce the federal SDWA at the state level. California has enacted its own Safe Drinking Water Act to implement the federal law and establish state standards.
Federal Endangered Species Act (ESA): The purpose of the federal ESA is to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the US Fish and Wildlife Service and the National Marine Fisheries Service. Under the federal ESA, species may be listed as either endangered or threatened. "Endangered" means a species is in danger of extinction throughout all or a significant portion of its range. "Threatened" means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. In California, the Fish and Game Commission lists and de-lists threatened/endangered species under the California ESA.
California's impact: California is the most populous state in the union with a population of nearly 40 million people. It is the third largest state by area at 163,696 square miles. It is the sixth largest economy in the world. California's geography, population, and economic size make California's impact global in nature.
California's population and economic activities have impacted its environment. California began to enact environmental policies before the federal government in many cases, recognizing the importance of these policies to its citizens and economy. California has been a model for other states as well as the federal government. For instance, California had developed clean air standards prior to enactment of the federal Clean Air Act. California's environmental leadership also drives technology and scientific innovation that has strengthened the state's economy.
Actions by the Trump Administration: The current federal administration has made it clear that it presumes that environmental law and regulation jeopardize economic growth in the United States and has committed to numerous actions to rollback federal environmental protections. A partial list of actions the Administration has taken or has pronounced intention to make include:
- The President has stated that man-made climate change is a "hoax created by and for the Chinese to make American manufacturing non-competitive." A week after he took office, the US EPA deleted climate change data from its Internet Web site;
- The United States withdrew the final determination on strict vehicle fuel-efficiency standards;
- The Administration's proposed budget cuts the US EPA's budget by 31%;
- The President signed an executive order to undo the Waters of the United States Rule that extended federal protections to smaller rivers and streams;
- The President signed the "Energy Independence Executive Order," which repealed policies to curb planet-warming greenhouse gas emissions;
- The President signed into law House Joint Resolution 38 (Johnson, R–OH), which nullifies the Department of Interior's Stream Protection Rule, which protects waterways by requiring coal companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests, restore streams and return mined areas to the uses they were capable of supporting prior to mining activities; and, to replant the areas with native trees and vegetation, unless that would conflict with the implemented land use;
- The Administration placed comprehensive gag orders on federal agency staff, including the US EPA, the Department of the Interior, and the Department of Energy; and,
- On June 1, 2017, President Trump announced that the United States would withdraw from the Paris Agreement on climate change, stating that the Agreement imposes "draconian financial and economic burdens… on our country." The President's statement indicated that he intends to renegotiate the Paris Agreement to "make a deal that's fair" however, leaders of other member countries have stated that the Agreement is "irreversible" and cannot be renegotiated. The United States had agreed to cut greenhouse gas emissions by 26-28% below 2005 levels by 2025. Leaving the Agreement also stops aid payments the US had pledged for less developed countries by 2020.
Response to President Trump's anti-environmental policies: This bill was introduced to respond to the Trump Administration's attack on laws and regulations that protect public health and the environment. It is clear that the new federal administration is interested in easing compliance with laws and regulations for multi-billion dollar corporations; however, it is unclear exactly what environmental laws or regulations could become a target for weakening or repealing. This bill sets a floor for the federal environmental laws currently in place in order to ensure that the public health benefits of these laws are maintained in California. The public health protections provided by the federal CAA, federal CWA, and all of the environmental laws and regulations in place, provide very important and very real benefits to everyone in this country. Loosening these federal requirements, such as allowing businesses to dump toxic wastes near schools and homes, or allow entities to emit toxic chemicals into the air, could set us back decades in terms of the environmental and public health protections that have been achieved.
California has some of the most, if not the most, protective public health and environmental laws in the country. Protecting human health and the environment and promoting economic growth are not mutually exclusive. This bill is intended to ensure that the strong environmental protections, coupled with the strong economic performance that California has achieved, is not un-done by the Trump Administration.
Analysis Prepared by: Josh Tooker / E.S. & T.M. / (916) 319-3965 FN: 0002154
SENATE THIRD READING
STR Bill Id:SB 49
Author:(De León and Stern)
As Amended Ver:September 5, 2017
Majority vote
SENATE VOTE: 24-13
Committee | Votes | Ayes | Noes |
Environmental Safety | 4-2 | Quirk, Cristina Garcia, Friedman, Holden | Dahle, Chen |
Natural Resources | 6-3 | Cristina Garcia, Chau, Limón, McCarty, Muratsuchi, Mark Stone | Acosta, Travis Allen, Flora |
Judiciary | 8-3 | Mark Stone, Chau, Chiu, Cristina Garcia, Holden, Kalra, Reyes, Ting | Cunningham, Kiley, Maienschein |
Appropriations | 10-5 | Gonzalez Fletcher, Bloom, Bocanegra, Bonta, Calderon, Chau, Friedman, Eduardo Garcia, Jones-Sawyer, Reyes | Bigelow, Brough, Fong, Gallagher, Obernolte |
SUMMARY: Enacts the California Environmental, Public Health, and Workers Defense Act (Act) of 2017, which prohibits a state or local agency from amending or revising its rules to be less stringent than the federal baseline standards pertaining to environmental protection. Specifically, this bill:
1) Defines "baseline federal standards" as the federal laws or federal regulations implementing the federal laws in effect as of January 19, 2017.
2) Defines "baseline federal standards for other federal laws" as federal laws or federal regulations implementing the other federal laws in effect as of January 19, 2017.
3) Defines "federal law" as the federal Clean Air Act (CAA), the federal Endangered Species Act of 1973 (ESA), the federal Safe Drinking Water Act (SDWA), and the federal Water Pollution Control Act (also known as the Clean Water Act or CWA).
4) Defines "other federal laws" as the federal Wild and Scenic River Act, the federal San Joaquin River Restoration Settlement Act, and the federal Central Valley Project Improvement Act.
5) Prohibits a state or local agency from amending or revising its rules and regulations to be less stringent than the baseline federal standards.
6) Authorizes a state or local agency to establish rules and regulations for California that are more stringent than the baseline federal standards.
7) Prohibits a state or local agency that is delegated the authority to enforce other federal laws, or that implements the state law that is an analogue to the other federal laws, from amending or revising its rules and regulations unless it determines that an amendment or revision would make state rules or regulations at least as stringent as the baseline federal standards.
8) Requires the State Water Resources Control Board (State Water Board) and the regional water quality control boards (Regional Water Boards) to maintain and enforce all water supply and water quality standards that are at least as stringent as required by the baseline federal standards, as determined by the State Water Board or Regional Water Boards, in addition to maintaining and enforcing water supply and water quality standards under state law.
9) Requires the State Air Resources Board (Air Board), air quality management districts, and air pollution control districts (Air Districts) to maintain and enforce all air quality standards to be at least as stringent as the baseline federal standards, as determined by the Air Board or Air District, in addition to those required by state law.
10) Requires the Air Board to adopt a standard or requirement for an air pollutant that is at least as stringent as the baseline federal standard, if there is a baseline federal standard for an air pollutant for which the Air Board has not already adopted a standard or requirement.
11) Requires the State Water Board to maintain and enforce all drinking water standards to be at least as stringent as the applicable baseline federal standards, as determined by the State Water Board, in addition to maintaining and enforcing drinking water standards under state law.
12) Requires the State Water Board to adopt a standard or requirement for water supply, water quality, or drinking water to be at least as stringent as the baseline federal standard, as determined by the State Water Board, if the State Water Board determines that baseline federal standards regarding water supply, water quality, or drinking water have been revised or amended to be less stringent.
13) Requires all waste discharge requirements and permits issued on and after January 1, 2018, to be at least as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as is required by the applicable baseline federal standards in addition to those required by state law.
14) Requires all drinking water supply permits issued on and after January 1, 2018, to be at least as protective of public health and comply with all applicable drinking water standards as required by the applicable baseline federal standards, in addition to those required by state law.
15) Requires all native species listed as endangered or threatened, as of January 1, 2017, pursuant to the federal Endangered Species Act of 1973, that are not listed as threatened or endangered pursuant to California law, to be listed as threatened or endangered, as appropriate, pursuant to California law. Authorizes the Fish and Game Commission to review and modify the listing of species.
16) Prohibits a state agency from amending or revising its rules or regulations in a manner that is less stringent in its protection of worker's rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016. Authorizes a state agency to establish worker's rights and worker safety standards for California that are more stringent than those provided in federal law, as it existed on January 1, 2016.
17) States that the provisions of the Act are severable and if any provision of the Act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
EXISTING LAW:
1) Establishes the federal CWA to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (U.S.C.) Section1251 et seq.)
2) Establishes the federal SDWA to set standards for drinking water quality and to oversee the states, localities, and water suppliers who implement those standards. (42 U.S.C. Section 300f et. seq.)
3) Establishes the federal ESA to protect and recover imperiled species and the ecosystems upon which they depend. (16 U.S.C. Section 1531 et. seq.)
4) Establishes the federal CAA to regulate air emissions from stationary and mobile sources. Requires the United States Environmental Protection Agency (US EPA) to establish National Ambient Air Quality Standards to protect public health and public welfare and to regulate emissions of hazardous air pollutants. (42 U.S.C. Section 7401 et seq.)
FISCAL EFFECT: According to the Assembly Appropriations Committee, enactment of this bill could result in increased ongoing annual costs to the Air Board of approximately $11 million to adopt state versions of specified federal rules, review existing standards to determine if they are as stringent as federal standards, and develop new regulations in response to federal rollbacks; increased costs of approximately $10 million to the Department of Fish and Wildlife (DFW) to list new species and process incidental take permits and make consistency determinations; increased costs to the State Water Board of up to $1 million to update regulations; and, increased unknown, but potentially significant costs to the Department of Justice associated with defending any and all private citizen lawsuits against state agencies for alleged failure to timely report to the Legislature and/or non-compliance with the bill's mandates.
COMMENTS: Need for the bill: According to the author, one of the main reasons for introducing this bill is out of concern that President Trump and his Administration would fulfill a campaign promise to withdraw from the landmark Paris Climate Agreement signed by 144 other nations, which the President has done since the bill was introduced. The United States is by far the largest emitter of climate pollution to secede from the treaty. Additionally, the author contends that, "The Trump Administration has signaled that it wants to "reexamine the science" used to set standards; reduce the staff at the US EPA by up to two-thirds which would gut its ability to set health based standards; and, make regulations more cost-effective and business-friendly. All of these actions are euphemisms for weakening environmental and public health protections. They are the precise motivations behind actions that lead to the drinking water disaster in Flint Michigan."
Federal Clean Air Act (CAA): The CAA regulates air emissions from stationary and mobile sources. Among other things, the CAA provides for national ambient air quality standards for major air pollutants, hazardous air pollutants standards, state attainment plans, motor vehicle emissions standards, stationary source emissions standards and permits, acid rain control measures, stratospheric ozone protection, and enforcement provisions.
Federal Clean Water Act (CWA): The federal CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Under the CWA, the US EPA has implemented pollution control programs, including setting wastewater standards for industrial facilities, and set water quality standards for all contaminants in surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters without a permit.
Federal Safe Drinking Water Act (SDWA): The federal SDWA was enacted in 1974 to protect public health by regulating drinking water. The US EPA enforces the federal SDWA at the national level. The federal SDWA authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic contaminants that may be found in drinking water.
The SDWA applies to every public water system in the United States. There are currently more than 170,000 public water systems providing water to almost all Americans at some time in their lives. The responsibility for making sure these public water systems provide safe drinking water is divided among US EPA, states, tribes, water systems, and the public. The SDWA provides a framework in which these parties work together to protect this valuable resource. Most states, including California, have been granted "primacy" by the US EPA, giving them the authority to implement and enforce the federal SDWA at the state level. California has enacted its own Safe Drinking Water Act to implement the federal law and establish state standards.
Federal Endangered Species Act (ESA): The purpose of the federal ESA is to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the US Fish and Wildlife Service and the National Marine Fisheries Service. Under the federal ESA, species may be listed as either endangered or threatened. "Endangered" means a species is in danger of extinction throughout all or a significant portion of its range. "Threatened" means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. In California, the Fish and Game Commission lists and de-lists threatened/endangered species under the California ESA.
California's impact: California is the most populous state in the union with a population of nearly 40 million people. It is the third largest state by area at 163,696 square miles. It is the sixth largest economy in the world. California's geography, population, and economic size make California's impact global in nature.
California's population and economic activities have impacted its environment. California began to enact environmental policies before the federal government in many cases, recognizing the importance of these policies to its citizens and economy. California has been a model for other states as well as the federal government. For instance, California had developed clean air standards prior to enactment of the federal Clean Air Act. California's environmental leadership also drives technology and scientific innovation that has strengthened the state's economy.
Actions by the Trump Administration: The current federal administration has made it clear that it presumes that environmental law and regulation jeopardize economic growth in the United States and has committed to numerous actions to rollback federal environmental protections. A partial list of actions the Administration has taken or has pronounced intention to make include:
- The President has stated that man-made climate change is a "hoax created by and for the Chinese to make American manufacturing non-competitive." A week after he took office, the US EPA deleted climate change data from its website;
- The United States withdrew the final determination on strict vehicle fuel-efficiency standards;
- The Administration's proposed budget cuts the US EPA's budget by 31%;
- The President signed an executive order to undo the Waters of the United States Rule that extended federal protections to smaller rivers and streams;
- The President signed the "Energy Independence Executive Order," which repealed policies to curb planet-warming greenhouse gas emissions;
- The President signed into law H.J. Res. 38 (Johnson, R–OH), which nullifies the Department of Interior's Stream Protection Rule, which protects waterways by requiring coal companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests, restore streams and return mined areas to the uses they were capable of supporting prior to mining activities; and, to replant the areas with native trees and vegetation, unless that would conflict with the implemented land use;
- The Administration placed comprehensive gag orders on federal agency staff, including the US EPA, the Department of the Interior, and the Department of Energy; and,
- On June 1, 2017, President Trump announced that the United States would withdraw from the Paris Agreement on climate change, stating that the Agreement imposes "draconian financial and economic burdens… on our country." The President's statement indicated that he intends to renegotiate the Paris Agreement to "make a deal that's fair" however, leaders of other member countries have stated that the Agreement is "irreversible" and cannot be renegotiated. The United States had agreed to cut greenhouse gas emissions by 26-28% below 2005 levels by 2025. Leaving the Agreement also stops aid payments the US had pledged for less developed countries by 2020.
Response to President Trump's anti-environmental policies: This bill was introduced to respond to the Trump Administration's attack on laws and regulations that protect public health and the environment. It is clear that the new federal administration is interested in easing compliance with laws and regulations for multi-billion dollar corporations; however, it is unclear exactly what environmental laws or regulations could become a target for weakening or repealing. This bill sets a floor for the federal environmental laws currently in place in order to ensure that the public health benefits of these laws are maintained in California. The public health protections provided by the federal CAA, federal CWA, and all of the environmental laws and regulations in place, provide very important and very real benefits to everyone in this country. Loosening these federal requirements, such as allowing businesses to dump toxic wastes near schools and homes, or allow entities to emit toxic chemicals into the air, could set us back decades in terms of the environmental and public health protections that have been achieved.
California has some of the most, if not the most, protective public health and environmental laws in the country. Protecting human health and the environment and promoting economic growth are not mutually exclusive. This bill is intended to ensure that the strong environmental protections, coupled with the strong economic performance that California has achieved, is not un-done by the Trump Administration.
Analysis Prepared by: Josh Tooker / E.S. & T.M. / (916) 319-3965 FN: 0001915
Date of Hearing: August 23, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 49
Author:(De León) – As Amended Ver:July 18, 2017
Policy Committee: | Environmental Safety and Toxic Materials | Vote: | 4 - 2 |
Natural Resources | 6 - 3 | ||
Judiciary | 8 - 3 |
Urgency: No State Mandated Local Program: Yes Reimbursable: Yes
SUMMARY:
This bill enacts the California Environmental Public Health, and Workers Defense Act of 2017, to establish a minimum baseline, as defined, for environmental, public health, and labor standards and prohibits California from falling below that baseline. Among its provisions, this bill:
- Prohibits a state or local agency from amending or revising its rules or regulations regarding the baseline federal standards for the federal Clean Air Act, the federal Safe Drinking Water Act, the Federal Water Pollution Control Act (also known as the Clean Water Act) or the Federal Endangered Species Act, the federal Wild and Scenic Rivers Act, the federal San Joaquin River Restoration Settlement Agreement Act, and the federal Central Valley Project Improvement Act, that were in in effect as January 19, 2017.
- Requires federally listed native species to be listed as threatened or endangered pursuant to state law, as appropriate. States the California Endangered Species Act applies to the Central Valley Water Project, as specified.
- Prohibits a state agency from amending or revising its rules or regulations in a manner that is less stringent in its protection of workers’ rights than standards in federal law as of January 1, 2016.
- Establishes that an action may be brought by a person in the public interest to enforce the standards or requirements adopted by the relevant state agency, as provided, or to impose civil penalties for a violation of those standards or requirements pursuant to those acts, as provided. Allows a court to award attorneys’ fees, as specified.
- Requires every state agency, including the Department of Justice (DOJ), to us its authority under state and federal law to this bill and report to the Legislature at least once every six months on their compliance with the provisions of this bill.
- Includes a severability clause.
FISCAL EFFECT:
- Increased ongoing annual costs to the Air Resources Board (ARB) of approximately $11 million to adopt state versions of the federal rules that define components of the State Implementation Plan (SIP), review existing standards to determine if they are as stringent as federal standards, and develop new regulations in response to federal rollbacks.
- Increased costs of approximately $10 million to the Department of Fish and Wildlife (DFW) to list new species and process incidental take permits and make consistency determinations.
- Increased State Water Resources Control Board (SWRCB) costs of up to $1 million to update regulations.
- Increased unknown, but potentially significant DOJ costs associated with defending any and all private citizen lawsuits against state agencies for alleged failure to timely report to the Legislature and/or non-compliance with the bill’s mandates. DOJ may also see an increase in workload in advising client agencies regarding baseline analyses, manner and method of compliance, and reporting requirements. The additional number of Deputy Attorneys General, and their Legal Complement, that will need to be hired, is unknown. However, these costs would be fully reimbursable through direct billings to the client agency.
COMMENTS:
- Purpose. According to the author, “SB 49 ensures clean air, clean water, endangered species, and worker safety standards that have been in place for as long as 50 years are not rolled back as a result of the anti-environment actions of the President and Congress. In the past six months, the new administration and Congress have adopted action after action to weaken, roll back, and outright repeal longstanding and well-accepted standards to protect public health and the environment. SB 49 simply ensures those standards stay in place to protect every day Californians, even if the federal government rolls them back.”
- Background. In 2003, the Legislature enacted SB 288 (Sher, Chapter 476, Statutes, of 2003) to prohibit air quality management districts from amending or revising new source review rules or regulations to be less stringent than those that existed on December 30, 2002. In that bill, the author was reacting to actions taken by the US EPA, which rolled back a provision of the Clean Air Act called “new source review,” which is a set of rules that required industrial facilities like refineries and power plants to install modern pollution control equipment. Indeed, the author of that bill stated that the intent of SB 288 was to “ensure that there is no backsliding on California’s stringent but workable clean air standards” and to prevent a change in the rules “under which industry in California has been operating.” (Assembly Natural Resources Committee analysis of SB 288; June 27, 2003.)
This bill follows a similar approach and establishes a minimum baseline for environmental, public health, and labor standards (by referencing federal law), and prohibits any state or local agency from amending or revising its rules or regulations to be less stringent than that baseline. The relevant federal laws include the following:
- The federal Clean Air Act (CAA). The CAA regulates air emissions from stationary and mobile sources and provides various national standards, controls and enforcement.
- The federal Clean Water Act (CWA). The federal CWA establishes the basic structure for regulating pollutant discharges and sets and enforces surface water quality standards. Under the CWA, the US EPA has pollution control programs, including wastewater standards for industrial facilities, and water quality standards for all contaminants in surface waters.
- The federal Safe Drinking Water Act (SDWA). The federal SDWA was enacted in 1974 to protect public health by regulating drinking water. The federal SDWA authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic (introduced by humans) contaminants that may be found in drinking water.
- The federal Endangered Species Act (ESA). The federal ESA is designed to protect and recover imperiled species and their ecosystems. Under the federal ESA, species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future.
By referencing federal law, this bill establishes a baseline for environmental, public health and labor laws and prohibits and state or local agency from amending or revising its rules or regulations to be less stringent than that baseline. This bill also references federal laws such as the Wild and Scenic Rivers Act and those federal laws specific to California such as the San Joaquin River Restoration Settlement Act and the Central Valley Project Improvement Act.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
Date of Hearing: July 11, 2017
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 49
Author:(De León) – As Amended Ver:May 26, 2017
As Proposed to be Amended
SENATE VOTE: 24-13
SUBJECT: California EnVIRONMENTAL, PUBLIC HEALTH, AND WORKERS DEFENSE ACT OF 2017
KEY ISSUES:
- To ensure that clean air, clean water, endangered species, and worker safety standards that have been in place for as long as 50 years are not rolled back as a result of the anti-environment actions of the current President and Congress, should minimum state baselines for environmental, public health, and labor standards BE ADOPTED?
- TO Preserve, protect, and enhance the environment and natural resources in California, SHOULD THE PUBLIC BE ABLE TO ENFORCE PROVISIONS IN THIS BILL through a ciTizen suit provision—similarly to ones found currently under federal environmental law—so that there is no backsliding of california laws and environmental protections?
SYNOPSIS
The current White House has made no secret of its intention to rollback environment rules aimed at protecting the public’s air, water, and general health. Indeed, then-candidate Donald Trump vowed to get rid of the Environmental Protection Agency (EPA) “in almost every form,” leaving only “little tidbits intact.” In his proposed 2018 budget, President Trump cut the EPA by 31 percent, stating that the cut reflected “the President’s priority to ease the burden of unnecessary Federal regulations that impose significant costs for workers and consumers without justifiable environmental benefits.” To ensure that state standards are not jeopardized as a result of federal action, SB 49 generally establishes a minimum baseline for environmental, public health, and labor standards.
Although every provision of this bill cannot be fully described in this analysis, this bill can be organized into several parts—each involving a different public policy relating to air, water, endangered species, and worker’s rights. While there are slight differences between each of the articles—the bill’s environmental provisions are nearly identical. Relevant to this Committee, this bill creates various new duties on state entities and creates corresponding rights.
Specifically, this bill creates several duties by requiring specific state agencies to maintain and enforce California standards to be as stringent as the baseline today so that if that baseline becomes weakened by the current federal government, California standards will be in place to reinforce against any backsliding. Additionally, this bill requires specific state agencies to adopt a standard present in the baseline—provided that the standard has not been established by the state. The newly adopted standard must be as stringent as the baseline.
Additionally, this bill creates several enforcement rights by allowing a private citizen the right to file a civil action to enforce the newly adopted state standards (that otherwise would be a federal baseline) if the federal standard is changed to be less stringent or the federal civil action to enforce the federal standard is restricted. Additionally, this bill expressly authorizes a person to file an action in court (a writ) to compel a relevant state or local agency to comply with the provisions in this bill.
This bill is supported by a number of environmental advocates, labor unions, and many businesses. Supporters believe that this bill will lock in current federal standards as the state’s baseline on air, climate, water, and other issues, even if the federal government weakens them later. This bill is opposed by a number of agricultural and business interests. Opponents of the bill believe that it is overbroad and vague, and should be adopted on a case-by-case basis.
This bill was previously approved by the Assembly Environmental Safety and Toxic Materials Committee, and pending in the Assembly Natural Resources Committee—in which a number of amendments have been agreed to in that Committee that will be adopted in this Committee. This Committee has suggested several amendments, including technical amendments that are provided in this analysis. Should this bill pass this Committee, it will be referred to the Appropriations Committee.
SUMMARY: For purposes of this Committee, enacts the California Environmental, Public Health, and Workers Defense Act of 2017, which establishes a minimum baseline for environmental, public health, and labor standards (by referencing federal law), and prohibits California standards from falling below this baseline. This bill requires specific state agencies to adopt a standard present in the baseline if that standard is unavailable under state law. This bill also creates a state civil action to allow private citizens the ability to enforce these newly adopted state standards if either the baseline is weakened, or the federal civil action to enforce the federal standard is restricted or repealed. This bill also expressly authorizes private citizens the ability to petition courts to make state and local agencies comply with this bill’s terms. Specifically, this bill:
- Defines “federal law” as any of the following:
- The federal Clean Air Act (42 U.S.C. Section 7401 et seq.);
- The federal Safe Drinking Water Act (42 U.S.C. Section 300f et seq.);
- The Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. Section 1251 et seq.); or
- The federal Endangered Species Act of 1973 (16 U.S.C. Section 1531 et seq.).
- Defines “baseline federal standards” as the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
- Defines “other federal law” as any other federal law not specified in 1a) through 1d), inclusive, relating to environmental protection, natural resources, or public health.
- Defines “baseline federal standards for other federal laws” as authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
- Provides that except as authorized by state law, a state or local agency shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards.
- Provides that except as authorized by state law, a state or local agency may establish rules and regulations for California that are more stringent than the baseline federal standards.
- Provides that to the extent authorized by federal law and except as authorized by state law, a state or local agency that is delegated the authority to enforce other federal laws or that implements the state law that is an analogue to the other federal laws shall not amend or revise its rules and regulations to be less stringent than the baseline federal standards for other federal laws, but may establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws.
- Establishes the following requirements and standards for air:
- To ensure no backsliding as a result of any change in the federal Clean Air Act or its implementing regulations, the State Air Resources Board, air quality management districts, and air pollution control districts shall maintain and enforce all air quality requirements and standards that are at least as stringent as required by the baseline federal standards, in addition to those required under state law.
- To the extent that the state board has not established a standard or requirement for an air pollutant for which a standard or requirement exists in the baseline federal standards, the State Air Resources Board shall adopt a standard or requirement that is at least as stringent as the baseline federal standards.
- Establishes the following requirements and standards for water:
- To ensure no backsliding as a result of any change in the federal Clean Water Act, the State Water Resources Control Board and regional water quality control boards shall maintain and enforce all water supply and water quality standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
- To the extent that the State Water Resources Control Board has not established a water supply or water quality standard or requirement for which a standard or requirement exists in the baseline federal standards, the State Water Resources Control Board shall adopt a standard or requirement that is at least as stringent as the baseline federal standards.
- To ensure no backsliding as a result of any change in the federal Safe Drinking Water Act, the State Water Resources Control Board shall maintain and enforce all drinking water standards that are at least as stringent as required by the applicable baseline federal standards, in addition to those required by state law.
- Establishes the following requirements and standards for endangered and threatened species:
- To ensure no backsliding as a result of any change to the federal Endangered Species Act of 1973, all native species that have been listed as endangered or threatened as of January 1, 2017 pursuant to federal law, but not already listed as endangered or threatened under state law, shall be listed as an endangered or threatened species, as provided. The Fish and Game Commission may review and modify the listing of species, as provided.
- Establishes the following requirements and standards for fair labor and workers’ rights:
- Except as authorized by state law, a state agency shall not amend or revise its rules or regulations in a manner that is 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.
- Except as otherwise provided in state law, a state agency may establish workers’ rights and worker safety standards for California that are more stringent than those provided in federal law in existence as of January 1, 2016.
- For purposes of 11), defines “federal law” as the following:
- Fair Labor Standards Act of 1938, as amended (29 U.S.C. Section 201 et seq.);
- Occupational Safety and Health Act of 1970, as amended (29 U.S.C. Section 651 et seq.);
- Federal Coal Mine Safety and Health Act of 1969, as amended (30 U.S.C. Section 801 et seq.); and
- Other federal statutes relating to worker rights and protections, and regulations, policies, guidance, standards, requirements, and specifications established pursuant to those federal statutes.
- For purposes of 11), defines “state agency” as a state agency designated by law to implement the federal law or its state analogue.
- Requires every state agency, including the Department of Justice, to undertake all feasible efforts using its authority under state and federal law to implement and enforce the provisions of this bill. Specifies that every state agency that takes steps to the provisions of this bill shall submit a report to the Legislature, at least once every six months describing its compliance with this bill, as provided.
- Establishes that an action may be brought by a person in the public interest to enforce the standards or requirements adopted by the relevant state agency, as provided, or to impose civil penalties for a violation of those standards or requirements pursuant to those acts, as provided.
- Provides that a civil action under 13) may only occur if:
- The private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
- The Attorney General, a district attorney, a city attorney, or a prosecutor have not commenced and diligently prosecuting an action against the violation.
- Requires a person bringing an action in the public interest under 13) and a person filing an action in which a violation of those acts is alleged to notify the Attorney General that the action has been filed.
- Allows an action or proceeding to be brought pursuant to Section 1085 or 1094.5 of the Code of Civil Procedure, as appropriate, on the grounds that a state or local agency has violated the requirements of this title or as provided.
- Allows the court to award attorneys' fees pursuant to Section 1021.5 of the Code of Civil Procedure, and expert fees and court costs pursuant to Section 1033 of the Code of Civil Procedure, as appropriate, for an action brought pursuant to 13).
- Makes several findings and declarations, including a finding that it is necessary for the Legislature to enact legislation to ensure continued protection for the environment, natural resources, and public health in the state even if the federal laws are undermined, amended, or repealed.
- Includes a severability clause, where if any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
EXISTING LAW:
- Pursuant to federal law, establishes the federal Clean Air Act to regulate air emissions from stationary and mobile sources, as provided. (42 U.S.C. Section 7401 et seq.)
- Pursuant to federal law, establishes the Clean Water Act to regulate discharge of pollutants into the waters of the United States and regulate quality standards for surface waters. (33 U.S.C. Section 1344 et seq.)
- Pursuant to federal law, establishes the federal Safe Drinking Water Act to set standards for drinking water quality and to oversee the states, localities, and water suppliers who implement those standards, as provided. (42 U.S.C. Section 300f et seq.)
- Pursuant to federal law, establishes the federal Endangered Species Act of 1973 to protect and recover imperiled species and the ecosystems upon which they depend, as provided. (16 U.S.C. Section 1531 et seq.)
- Provides that a writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person. (Code of Civil Procedure Section 1085 (a).)
- Provides that where a writ is issued for the purpose of inquiring into the validity of any final administrative order or decision, as described, the case shall be heard by the court sitting without a jury, as provided. (Code of Civil Procedure Section 1094.5.)
- Allows a court to award attorneys’ fees to a successful party in any action which has resulted in the enforcement of an important right affecting the public interest under the following circumstances:
- A significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons;
- The necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and
- Such fees should not in the interest of justice be paid out of the recovery, if any. (Code of Civil Procedure Section 1021.5.)
- Provides that in an action involving a public entity, attorneys’ fees applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed as provided. (Ibid.)
- Specifies that attorneys’ fees awarded to a public entity shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest (1977) 20 Cal.3d 25, 49. (Ibid.)
- Provides that costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case, as provided, where the prevailing party recovers a judgment that could have been rendered in a limited civil case. (Code of Civil Procedure Section 1033 (a).)
- Provides that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding except as otherwise expressly provided by statute. (Code of Civil Procedure Section 1032.)
- Provides items of allowable costs that may be awarded to a prevailing party, which may include fees of expert witnesses ordered by the court. (Code of Civil Procedure 1033.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: The current White House has made no secret of its intention to rollback environment rules aimed at protecting the public’s air, water, and general public health. Indeed, then-candidate Donald Trump vowed to get rid of the Environmental Protection Agency (EPA) “in almost every form,” leaving only “little tidbits intact.” (Dennis & Eilperin, EPA remains top target with Trump administration proposing 31 percent budget cut, Washington Post (May 23, 2017).) In his proposed 2018 budget, President Trump cut the EPA by 31 percent, stating that the cut reflected “the President’s priority to ease the burden of unnecessary Federal regulations that impose significant costs for workers and consumers without justifiable environmental benefits.” (Office of Mgmt. & Budget, Exec. Office of the President, Budget Blueprint (2017).) In March, the President issued the Energy Independence Executive Order that directed the EPA to withdraw and rewrite the Clean Power Plan, which would have “closed hundreds of coal-fired power plants, frozen construction of new plants and replaced them with vast new wind and solar farms.” (Rubin, Trump Signs Executive Order Unwinding Obama Climate Policies, N.Y. Times (March 28, 2017).) In June, President Trump announced his intention to abandon the Paris Agreement, making the United States one of only four U.N. member nations not to sign on, joining Syria, Uzbekistan, and Nicaragua. (See Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, N.Y. Times (June 1, 2017).) Additionally, the President’s EPA Administrator—Scott Pruitt, who has spent a significant part of his career fighting against the EPA—has been working to undo environmental protections. Earlier this month, the New York Times reported the following:
In the four months since [Pruitt] took office as the Environmental Protection Agency’s administrator, Scott Pruitt has moved to undo, delay, or otherwise block more than 30 environmental rules, a regulatory rollback larger in scope than any other over so short a time in the agency’s 47-year history, according to experts in environmental law. (Davenport, E.P.A. Chief Voids Obama-Era Rules in Blazing Start, N.Y. Times (July 2, 2017).)
Author’s statement. In support of the bill, the author writes:
President Trump and his Administration have promised to withdraw from the landmark Paris Climate Agreement signed by 144 other nations. The United States would be by far the largest emitter of climate pollution to secede from the treaty. The Trump Administration has signaled that it wants to “reexamine the science” used to set standards; reduce the staff at the US EPA by up to two-thirds which would gut its ability to set health based standards; and, make regulations more cost-effective and business-friendly. All of these actions are euphemisms for weakening environmental and public health protections. They are the precise motivations behind actions that lead to the drinking water disaster in Flint Michigan.
SB 49 ensures clean air, clean water, endangered species, and worker safety standards that have been in place for as long as 50 years are not rolled back as a result of the anti-environment actions of the President and Congress. In the past four months, the new administration and Congress have adopted action after action to weaken, roll back, and outright repeal longstanding and well-accepted standards to protect public health and the environment. SB 49 simply ensures those standards stay in place to protect every day Californians, even if the federal government rolls them back.
Summary of this bill. This bill establishes a minimum baseline for environmental, public health, and labor standards (by referencing federal law), and prohibits California standards from falling below this baseline. Additionally, this bill would require specific state agencies—the State Air Resources Board, the State Water Resources Control Board, and the Fish and Game Commission—to adopt a standard present in the baseline if that standard is unavailable under state law. This bill also creates a state civil action to allow private citizens the ability to enforce these newly adopted state standards if either the baseline is weakened, or the federal civil action to enforce the federal standard is restricted or repealed. This bill also expressly authorizes private citizens the ability to petition courts to make state and local agencies comply with this bill’s terms. Finally, this bill would require state agencies to report periodically to the Legislature on compliance.
Structure of this bill. This bill is organized into several parts—each involving a different public policy relating to air, water, endangered species, and worker’s rights. While there are slight differences between each of the articles—the bill’s environmental provisions are nearly identical. Relevant to this Committee, this bill creates various new duties on state entities and creates corresponding rights.
Duties. This bill requires specific state agencies to maintain and enforce California standards to be as stringent as the baseline so that if that baseline becomes weakened by the current federal government, California standards will be in place to reinforce against any “backsliding.” Additionally, this bill requires specific state agencies to adopt a standard present in the baseline—provided that the standard has not been established by the state. The newly adopted standard must be as stringent as the baseline.
Rights. This bill allows a private citizen the right to file a civil action to enforce the newly adopted state standards (that otherwise would be a federal baseline) if the federal standard is changed to be less stringent or if the federal civil action to enforce the federal standard is restricted or repealed. Additionally, this bill expressly authorizes a person to file an action in court (a writ) to compel a relevant state or local agency to comply with the provisions in this bill.
A brief history on federal environmental law. Before 1970, the general responsibility of enforcing environmental laws was exclusively left to the states and local governments. (See Humphrey and Paddock, The Federal and State Roles in Environmental Enforcement: A Proposal for a More Effective and More Efficient Relationship (1990) 14 Harv. Envtl. L. Rev. 7, 7.) After the outpouring of public concern over environmental issues during the 1960s, the federal government enacted comprehensive laws “to deal with pollution, wastes, and other industrial hazards and protect natural resources.” (Morrison, Fundamentals of American Law, (1998) p. 484.) But instead of adopting a system that would be administered solely by the federal government, Congress adopted a system founded on cooperative federalism—a model where power is shared and coordinated between state and federal agencies, and where states participate to implement federal standards. (Fischman, Cooperative Federalism and Natural Resources Law (2005) 14 N.Y.U. Envtl. L. J. 179, 188.) Under this design, states receive federal dollars for adopting a regulatory plan at least as stringent as the federal framework. (Id. at 189.) Additionally, states may tailor federal standards, adopt compliance strategies, and engage in enforcement. (Ibid.) However, states are still subject to federal scrutiny and must continue to meet federal requirements and standards or otherwise risk federal funding. (Id. at 192.) To ensure that environmental laws are properly enforced, Congress created three tiers of enforcement: federal, state, and citizen suits—the last which allows a private citizen to enforce federal environmental laws.
The relevant federal laws include the following:
Federal Clean Air Act (CAA). The CAA regulates air emissions from stationary and mobile sources. Among other things, the CAA provides for national ambient air quality standards for major air pollutants, hazardous air pollutants standards, state attainment plans, motor vehicle emissions standards, stationary source emissions standards and permits, acid rain control measures, stratospheric ozone protection, and enforcement provisions.
Federal Clean Water Act (CWA). The federal CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Under the CWA, the US EPA has pollution control programs, including wastewater standards for industrial facilities, and water quality standards for all contaminants in surface waters.
Federal Safe Drinking Water Act (SDWA). The federal SDWA was enacted in 1974 to protect public health by regulating drinking water. The federal SDWA authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic contaminants that may be found in drinking water.
Federal Endangered Species Act (ESA). The federal ESA is designed to protect and recover imperiled species and the ecosystems. It is administered by the US Fish and Wildlife Service and the National Marine Fisheries Service. Under the federal ESA, species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future.
The intent behind this bill seems similar to the intent behind the Protect California Air Act of 2003. In 2003, the Legislature enacted SB 288 (Sher, Chap. 476, Stats. of 2003) which prohibited air quality management districts from amending or revising its new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002. In that bill, the author was reacting to actions taken by the US EPA, which rolled back a provision of the Clean Air Act called “new source review,” which is a set of rules that required industrial facilities like refineries and power plants to install modern pollution control equipment. (Senate Environmental Quality Committee analysis of SB 288; April 28, 2003.) Indeed, the author of that bill stated that the intent of SB 288 was to “ensure that there is no backsliding on California’s stringent but workable clean air standards” and to prevent a change in the rules “under which industry in California has been operating.” (Assembly Natural Resources Committee analysis of SB 288; June 27, 2003.)
This bill establishes a minimum baseline for environmental, public health, and labor standards (by referencing federal law), and prohibits any state or local agency from amending or revising its rules or regulations to be less stringent than that baseline. SB 49 prohibits a state or local agency from amending or revising its rules and regulations to be less stringent than the baseline federal standards. Under the bill, the baseline federal standards mean authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or regulations in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent. Federal law includes the federal Clean Air Act, the Endangered Species Act, the Safe Drinking Water Act, and the Federal Water Pollution Control Act. The bill also provides that a state or local agency may establish rules or regulations to be more stringent than baseline federal standards.
This bill’s goal of ensuring that environmental standards do not become weakened is well-intentioned. The multiple dates, however, may make it difficult for a state or local agency to determine which year provides more protection, particularly if the state or local agency must review every authorization, policy, objective, rule, requirement, or standard in existence during those two base years. Accordingly, the author may wish to consider an amendment to tailor the definition so that the baseline federal standards are only applicable to federal laws and regulations. Additionally, the author may wish to consider the adoption of one baseline date, for example, laws and regulations in effect as of January 19, 2017.
It has been stated that one of the goals behind this bill is to preserve existing federal law by referencing it in state law. To the extent that this bill states that a state or local agency may establish rules or regulations to be more stringent than baseline federal standards, it is presumed then that the state or local agency would need to rely on its existing authority to establish more stringent rules. To clarify this point, the author may wish to consider an amendment to state that nothing in this bill prevents a state or local agency from establishing rules or regulations to be more stringent than baseline federal standards.
This bill also prohibits—to the extent authorized by federal law—a state or local agency that is delegated the authority to enforce other federal laws, or that implements the state law that is an analogue to the other federal laws, from amending or revising its rules or regulations to be less stringent than the baseline federal standards for other federal laws. Under the bill, the baseline federal standard for other federal laws means authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or regulations in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent. Other federal laws is defined as any other federal law not specified, inclusive of federal law relating to environmental protection, natural resources, or public health.
As stated above, while this bill’s goal of ensuring that environmental standards do not become weakened is well-intentioned, the broad definitions may make it difficult for a state or local agency to determine what are “other federal laws” given the broad parameters relating to environmental protection, natural resources, and public health. Additionally, as written, it is presumed that “other federal laws” means other federal laws relating to environmental protection, natural resources, or public health—rather than another possible interpretation where “other federal laws” means laws that are not environmental protection, natural resources, or public health. Also, to the extent more than one state agency is responsible for implementing state law that is an “analogue” to other federal laws, those state agencies may need to coordinate to determine each agency’s responsibility under the bill. Accordingly, the author may wish to consider the similar clarifying amendments discussed above, and may wish to consider specifying “other federal laws” to preclude any misinterpretation about what is included under the definition.
This bill requires specific state agencies to maintain and enforce standards at least as stringent as required by the baseline federal standard to ensure there is no backsliding. This bill imposes a duty on specific state agencies to prevent backsliding. Throughout the bill, it requires that to ensure no backsliding as a result of any change in the [federal law], the [governmental entity] shall maintain and enforce all requirements and standards that are at least as stringent as required by the baseline federal standards. While the language in the bill is consistent with the author’s intent to ensure that state and local standards are not lowered as a result of changes in federal law, the author may wish to clarify that the specific state agency—in maintaining and enforcing standards to be at least as stringent as the federal baseline—may rely on its discretion to determine what is as stringent.
If there is a gap in state law as to a federal standard or requirement, this bill requires the relevant state agency to adopt the standard or requirement to be at least as stringent as the baseline federal standard. This bill imposes a duty on specific state agencies to adopt a standard currently not in state law but present under federal standards. When Committee staff inquired as to why there might be a “gap” in state law, Committee staff was informed of several possibilities. First, a federal standard might not have been adopted because it is not applicable in California due to factors like climate, resources, native species, etc. Second, a federal standard might not have been adopted because the state may be preempted from doing so—although it is unclear in which specific instances. Third—which provides strong reasoning for the bill—a federal standard might not have been adopted because the state agency has determined that it is better to reference or rely on that federal standard rather than adopting it through a rule. Given that there might not be a need to adopt every federal standard that is unavailable under state law, the author may wish to consider an amendment to provide discretion to the specific state agency to determine which federal standards the state should adopt. Alternatively, the author may wish to consider an amendment that requires the state agency to incorporate a previous baseline federal standard if that baseline federal standard was changed or modified to be less stringent.
To ensure that state and local standards are properly reinforced in the event that federal standards are lowered, this bill expressly states that a person may bring a writ (administrative or mandamus) to enforce state or local agency compliance. This bill expressly provides the public with rights for enforcement. Specifically, this bill states that a person may bring a writ against a state or local agency for violating the requirements under this bill.
Background on administrative mandamus. An administrative mandate is a tool used to review agency decisions. For example, an administrative mandate might be used because a party believed the agency acted in excess of its jurisdiction or the agency failed to hold a fair hearing. For purposes of this bill, a party may find that an administrative agency did not proceed in a manner required by law.
Background on a writ of mandamus. A writ of mandate is a tool used to compel someone who has a duty to act. Specifically, existing law allows a person to file a writ with the court to issue a mandate “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.” (Code of Civil Procedure Section 1085.) Under the law, a writ of mandate is applicable when there is a “clear, present, and ministerial duty.” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1265) (emphasis added).) A duty is ministerial if “a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Accordingly, a writ of mandate is not applicable if the duty involves discretionary power or the exercise of judgment. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 596.) However, a mandate may be used to compel agencies to issue regulations—as long as the court is not ordering the precise substance or contents of the regulation. (Newland v. Kizer (1989) 209 Cal.App.3d 647, 654-655.)
The duty in the bill to adopt a baseline federal standard where there is a gap in state law could be viewed as ministerial, enforceable by a writ. Here, this bill requires certain state agencies to adopt a standard or requirement to be at least as stringent as the baseline federal standard. Arguably, the state agency could fulfill this duty by simply mimicking the federal standard. However, since the state agency would not be engaging in any discretion in determining what standard to adopt, it could be argued that this duty is “ministerial,” and thus, enforceable by a writ. Even if this new duty is not characterized as ministerial, courts have been clear that a writ can be used to compel a relevant state agency to enact regulations if the state agency is required to act and does not do so. Accordingly, the author may wish to consider an amendment that provides the relevant state agency discretion to determine whether it should adopt a federal standard in the event that federal law changes. Alternatively, the author may wish to consider an amendment to require the state agency to determine whether the baseline federal law has been weakened, and only upon that determination, require the state agency to adopt a federal standard.
Similar to existing federal environmental laws, this bill creates a citizen suit provision to enforce a standard adopted by the relevant state agency to fill a gap in state law. As stated, when Congress enacted the comprehensive federal environmental framework that we know of today, it sought to provide three tiers of enforcement: the federal government, state government, and private citizens. Indeed, some scholars have noted that “Congress knew that despite the cooperative federalist regulatory scheme, government would never be fully able to enforce the law. Congress knew that effective enforcement of environmental law would require government to have, as two scholars have described it, the ‘friendship of the people.’” (Reisinger, Dougherty, & Moser, Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick Up the Slack?, 20 Duke Envtl. L. & Policy 9-10 (2010).) Accordingly, Congress created citizen suit provisions to encourage the public to enforce environmental rights. The federal Clean Air Act (CAA) was the first environmental federal law to include a citizen suit provision—which has been replicated in other federal environmental laws.
This bill allows a person in the public interest to enforce the state agency-adopted standards and requirements not currently available under state law that exist under federal law. Since this bill is simply intending to preserve existing baseline federal standards, this bill’s citizen suit provision arguably is just providing another procedural mechanism to enforce duties that various actors already owe under federal law. Additionally, it could be argued that a violation of these duties can already be brought in state court. That is because nothing under the CAA (or the other federal environmental law statutes) prevents a person from filing a citizen suit alleging a violation of federal environmental laws in state court. Indeed, consistent with common law principles of jurisdiction and justiciability, the CAA specifically states that “[n]othing in this section…shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief.” (See 42 U.S.C. Section 7604 (e).)
Technical amendment. The bill provides that an action may be brought to enforce the standards or requirements adopted to fill a state gap, or “to impose civil penalties for a violation of those standards or requirements pursuant to those acts.” To clarify that the civil action is limited to the newly adopted gap-filling standards, the words “pursuant to those acts” should be removed.
Opponents of the bill raise several arguments contending that this bill’s private right of action does more than just maintain status quo. Opponents of this bill—including a coalition of business interests led by the Chamber of Commerce—argue that the private right of action in this bill goes “beyond the status quo” because “California routinely adopts more stringent and different standards than the federal standards, and we expect the state agencies to do no less with SB 49’s directive.” Opponents also argue that this bill will subject businesses, state agencies, or local agencies to suits in both federal and state courts for the same violation. Committee staff notes that while it is true that nothing in this bill prevents concurrent prosecution in federal and state court, it is also true that this bill is not the cause of it. In other words, concurrent prosecution in federal and state court of federal claims is allowed today under existing common law principles. As stated, federal environmental law does not prevents a person from filing a federal environmental action in state court. Of course, if concurrent prosecution were to occur, the usual course is for one court (usually the federal court) to issue a stay until the issues in the other court (usually the state court) are resolved.
The citizen suit provisions in this bill become operative only if certain changes happen to federal law. Under the bill, the citizen suit provisions are triggered only if either one of two events occurs: (1) the relevant federal law (e.g., Clean Air Act, Clean Water Act, Safe Drinking Water Act, Endangered Species Act) is amended to restrict, condition, abridge, or repeal the citizen suit; or (2) the relevant federal agency (e.g., the US EPA, U.S. Fish & Wildlife Service, US Department of the Interior) revises an existing federal standard to be less stringent or protective. It should be noted that this operative language is consistent with the author’s intent of ensuring that this bill is limited to maintaining the status quo—that is, the baseline federal standards. This is true because, as stated, the claim in the civil action is limited to enforcing a standard where there is a gap in state law (mirrored after federal law) and only comes into existence if federal standards become less stringent or a person’s rights under the section relating to federal citizen suit are curbed.
Have the triggering events already occurred? As stated, the private right of action only becomes operative upon specific events. At issue is whether those events have already occurred, and who determines when those events have occurred?
First trigger? As this analysis was being prepared, it does not appear that the first trigger (i.e., amending the relevant federal acts) has occurred. However, it does appear that federal legislation has been introduced to affect citizen suits relating to the Endangered Species Act (H.R. No. 3131, 115th Cong., 1st Sess. (2017)) and the Federal Water Pollution Control Act (H.R. No. 1179, 115th Cong., 1st Sess. (2017)). Although it is unclear whether these bills will be enacted into law, to the extent that federal legislation is enacted to “restrict, condition, abridge, or repeal” the rights of citizens to pursue citizen suits, this could easily be ascertained.
Second trigger? Although the answer to whether the second triggering event has occurred is not as straightforward as the first event, the answer is not difficult to ascertain. During the writing of this analysis, it was represented to Committee staff that amendments would be taken to clarify that a state agency has discretion to adopt standards or regulations if the federal agency revises standards or requirements to be less stringent than the previous standards or requirements. Accordingly, in those proposed amendments, the public will know that the federal agency has revised standards or requirement (i.e., the second trigger) based on actions taken by the relevant state agency.
Similar to federal citizen suits, this bill stops the prosecution of a citizen suit if the action is being diligently prosecuted by the government. Although Congress wanted three tiers of enforcement when it enacted the federal environmental laws, Congress also recognized that “empowering three enforcers could result in successive enforcement actions against the same violations, possibly causing duplication and conflict in enforcement proceedings and remedies.” (Miller, Themes and Variations in Statutory Provisions Against Successive Environmental Enforcement Actions by EPA and Citizens: Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv. Envtl. L. Rev. 401, 401 (2004).) Accordingly, the federal citizen suit provisions bar a citizen suit if the government “has commenced and is diligently prosecuting [an action] to require compliance.” (See 42 U.S.C. Section 7604.)
Similar to federal law, this bill prohibits the civil action if the Attorney General, a district attorney, a city attorney, or a prosecutor commenced and is diligently prosecuting an action against the violation. It is presumed that since this language is identical to the language under federal law, any federal interpretation of these terms would also likely govern “diligent prosecution.” A question has been raised about whether the definition of “prosecutor” includes county counsel and enforcement agents at a local air pollution control district given both of their roles in enforcing local rules. Accordingly, the author may wish to consider an amendment to add county counsel and if appropriate, local air pollution control districts to the list.
Procedurally, a party filing a civil action under this bill must provide notice to the prosecuting agency—consistent with existing federal citizen suit provisions. This bill specifies that before a civil action may be filed, the party must provide notice to the alleged violator, and the Attorney General, and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred. Similar to the comment above, the author may wish to consider an amendment to add county counsel and if appropriate, local air pollution control districts to the list of noticed prosecutors.
Technical amendment. Under the notice provision, this bill requires duplicative notices to the Attorney General from (1) a person bringing an action in the public interest and (2) a person filing an action in which a violation of those acts is alleged. Since these persons are the same, one of these clauses should be removed.
Similar to the environmental federal laws, this bill allows a court to award public interest attorneys' fees provided under existing law. When it comes to attorneys' fees, California has adopted the “American Rule”—a general presumption that every party to a lawsuit will bear their own attorney’s fees (regardless of the outcome). (Code of Civil Procedure Section 1021.) However, California law has many examples where the Legislature awards attorneys' fees to the prevailing party in cases involving important rights that affect the public’s interest. Additionally, a court may award a successful party with public interest attorney’s fees if the party can prove the following requirements: (1) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons; (2) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and (3) such fees should not in the interest of justice be paid out of the recovery, if any. (Code of Civil Procedure Section 1021.5.)
This bill expressly states that a court may award public interest attorneys' fees, expert fees, and costs for an action brought under provisions of the bill. Given that these provisions involve environmental laws—a prime example where enforcement would vindicate the rights of the public, it seems appropriate to award public interest attorney’s fees in these actions. Presumably, this bill also contemplates the awarding of public interest attorneys' fees, expert fees, and costs in an administrative writ or a writ of mandate, as provided.
Opponents of the bill argue that because the standard of awarding attorneys' fees under federal law is different from the standard under state law, this bill will increase state lawsuits against businesses and state and local agencies as compared to federal law. Additionally, opponents argue that providing “one-sided attorneys' fees” will incentivize lawsuits. Committee notes that while the standard between federal and state law is slightly different, the difference does not lead to the conclusion that more claims will be filed under state law. Indeed, if this were true, many parties would already be filing federal claims in state court rather than in federal court—which does not appears to be the case. Additionally, it should be noted that “one-side attorneys' fees” do not incentivize lawsuits; rather, it is the violation of a standard or requirement that creates the incentive. Since these standards and requirements already exist under federal law, and the citizen suit still has to prevail in the action before attorneys' fees are awarded, it seems public interest attorneys' fees are an appropriate mechanism to ensure that important public rights are enforced.
Opponents of the bill also argue that this bill incentivizes lawsuits because it has “vague, ambiguous, and broad language.” Specifically, they contend that terms like “stringent” and “at least as protective of the environment” will lead to different interpretations, particularly if there circuit splits and different “interpretations and application of rules or guidance in different regions of the EPA.” During the writing of this analysis, it was represented to Committee staff that the author is considering amendments to provide more discretion to the state agency to determine what is stringent. Since the holdings of the 9th Circuit are controlling in this state, and other circuits are merely persuasive, it appears that each state agency (and parties in this state for that matter) should be able to determine what body of law is applicable to any action that arises in this state. While this Committee does not have expertise about what happens when there are different interpretations between regional offices of a federal environmental agency, it would seem that the principle above (i.e., the laws of the jurisdiction where you are located controls) would apply here as well.
Technical amendment. In specifying that a court may award expert fees and court costs, this bill references Code of Civil Procedure Section 1033. The statutory reference should be Section 1032.5.
This bill also requires every state agency to enforce this bill, and provide a report to the Legislature every six months. SB 49 requires every state agency to undertake all feasible efforts using its authority under state and federal law to implement and enforce the provisions of this bill. Additionally, every state agency that takes steps to enforce this bill must report to the Legislature at least every six months describing how it has complied with this bill.
ARGUMENTS IN SUPPORT: The Blue Business Council supports this bill because its businesses have built a thriving economy with environmental stewardship as a core business value:
SB 49 is a critical insurance policy that our state must take to guard against proposed federal rollbacks of the fundamental protections upon which our businesses, employees, and customers depend. Businesses rely on stable and predictable government rules and a level playing field in order to thrive. Federal clean water and clean air regulations have fostered California’s economic growth for decades. SB 49 would lock in current federal standards as the state’s baseline on air, climate, water, and other issues, even if the federal government weakens them later. Defending the protections that sustain our state’s economy—the sixth largest in the world—would send a signal to the business community that California stands firm in its commitments, providing certainty amidst the chaos.
California Labor Federation and the State Building & Construction Trades Council support this bill:
At the federal level, we are seeing a rush to undo key regulations to ensure clean air and water, safe workplaces, and basic labor standards. Using tools like the Congressional Review Act, Congress is hurriedly undoing decades of progress with little scrutiny or oversight. Already, they have repealed fair contracting rules, workplace injury record keeping, and the waiver to permit state secure retirement programs…Seeing the federal scheme rapidly dismantled, it is important that California maintain these basic standards for the protection of our workforce and our communities.
ARGUMENTS IN OPPOSITION: The California Chamber of Commerce opposes this bill because it believes this bill is a job killer, and is a premature, overbroad, and vague response to actions that could be undertaken in the future:
[SB 49] incentivizes lawsuits against state and local agencies challenging their compliance with these requirements and their discretion regarding the determination of stringency and protection; and, also incentivizes lawsuits against businesses relating to the standards/requirements adopted by state agencies in accordance with the bill, if there is any perceived “backsliding” at the federal level...SB 49 subjects businesses to private rights of action and writs of mandate arising from the new more stringent California standards/requirements to be adopted regardless of whether the federal citizen suit provisions are repealed, and promotes such lawsuits through a one-sided attorneys’ fees provision and the vague/ambiguous language of the bill.
The California Citrus Manual—along with a coalition of agricultural interests—also opposes this bill:
SB 49 would blanket federal laws onto state agencies, where we believe a case-by-case basis would be more appropriate….The private rights of action considered in SB 49, if passed, would mirror the Private Attorneys General Act (PAGA) in the labor and employment law industry, creating shakedown lawsuits that only increase business costs with no corresponding benefit to employees. This is particularly true since SB 49 contains no requirement that individuals bringing suit under the private right of action are, or may be, adversely affected by the alleged violation.
REGISTERED SUPPORT / OPPOSITION:
Support
California Coastkeeper Alliance (co-sponsor)
California Labor Federation, AFL-CIO (co-sponsor)
Natural Resources Defense Council (co-sponsor)
State Building & Construction Trades Council (co-sponsor)
350 Bay Area
All About Wells
All Good
American Federation of State, County And Municipal Employees, AFL-CIO
American Lung Association in California
American Rivers
American Whitewater
Asian Pacific Environmental Network
Audubon California
Breast Cancer Prevention Partners
Bureo Skateboards
Butte Environmental Council
Cal Outdoors
California Bicycle Coalition
California Coastal Protection Network
California Interfaith Power & Light
California League of Conservation Voters
California Native Plant Society
California ReLeaf
California Sportsfishing Protection Alliance
California State Association of Electrical Workers
California Water Impact Network
California Wildness Coalition
Center for Biological Diversity
Central Valley Air Quality Coalition
Channel Islands Surfboards
ChicoBag Company
Clean Water Action
Coalition for Clean Air
Coast Seafoods Company
Contech Engineered Solutions
Contra Costa Water District
Defenders of Wildlife
DaVero Farms & Winery
Earth Friendly Products
Environment California
Environmental Defense Fund
Environmental Defense Center
Environmental Working Group
Foothill Conservancy
Fossil Free California
Friends Committee on Legislation of California
Friends of Harbors, Beaches and Parks
Friends of the River
Half Moon Bay Brewing
Heal the Bay
Hills For Everyone
Hog Island Oyster Company
Hotel Healdsburg & h2hotel
Humane Society of the United States
John Paul Mitchell Systems
Johnson's Beach Resort
Kleen Kanteen
Kokatat
League of Women Voters of California
Mara Hoffman
Mixte Communications
Mono Lake Committee
Mountain Lion Foundation
National Parks Conservation Association
Nopa/Nopalito
O.A.R.S.
Okiino
Pacific Outfitters
Patagonia
PermaCity Solar
Pesticide Action Network
Poseidon Paddle & Surf
PuraKai Clothing
REI
Restore The Delta
Sacramento River Preservation Trust
Sagebrush Board Bags
Salty Girl Seafood
Samudra Skin & Sea
Sea Forager
Seventh Generation Advisors
Shelter Co.
Sierra Club of California
Simply Straws
Smiley’s Saloon & Hotel
South Yuba River Citizens League
StokeShare
Surfrider Foundation
Sustainable Silicon Valley
The Bay Institute
The Environmental Justice Coalition for Water
The Inertia
The Nature Conservancy
The Trust For Public Land
Three Forks Bakery & Brewing Co.
Urban Barrels
Voices For Progress Education Fund
Western States Council of Sheet Metal Workers
Wholly H2O
Winnemem Wintu Tribe
Wishtoyo Chumash Foundation
YubaDocs Urgent Care
Opposition
Agricultural Council of California
Almond Alliance of California
American Coatings Association
American Insurance Association
Association of California Egg Farmers
Association of California Water Agencies
Auto Care Association
California Association of Realtors
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Construction & Industrial Materials Association
California Cotton Ginners & Growers Association
California Farm Bureau Federation
California Forestry Association
California Fresh Fruit Association
California Grain & Feed Association
California Independent Petroleum Association
California League of Food Processors
California Licensed Foresters Association
California Manufacturers and Technology Association
California Metals Coalition
California Paint Council
California Pear Growers
California Seed Association
California State Floral Association
California Strawberry Commission
California Warehouse Association
California Women for Agriculture
CAWA - Representing The Automotive Parts Industry
Chemical Industry Council of California
Civil Justice Association of California
Family Business Association of California
Forest Landowners of California
Greater San Fernando Valley Chamber of Commerce
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Federation of Independent Business
Pacific Egg and Poultry Association
Simi Valley Chamber of Commerce
South Valley Water Association
Southwest California Legislative Council
Valley Industry & Commerce Association
West Coast Lumber & Building Material Association
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334
Date of Hearing: July 10, 2017
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Cristina Garcia, Chair
SBPCA Bill Id:SB 49
Author:(De León) – As Amended Ver:May 26, 2017
SENATE VOTE: 24-13
SUBJECT: California Environmental, Public Health, and Workers Defense Act of 2017
SUMMARY: Enacts the California Environmental, Public Health, and Workers Defense Act (Act) of 2017, which prohibits a state or local agency from amending or revising its rules to be less stringent than the federal baseline standards pertaining to environmental protection.
EXISTING LAW:
1) Establishes the federal Clean Water Act to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters.
2) Establishes the National Pollutant Discharge Elimination System permit program to regulate the discharge of pollutants in storm water, including municipal storm water systems.
3) Establishes the federal Safe Drinking Water Act to set standards for drinking water quality and to oversee the states, localities, and water suppliers who implement those standards.
4) Establishes the federal Endangered Species Act to protect and recover imperiled species and the ecosystems upon which they depend.
5) Establishes the federal Clean Air Act to regulate air emissions from stationary and mobile sources. Requires the United States Environmental Protection Agency (US EPA) to establish National Ambient Air Quality Standards to protect public health and public welfare and to regulate emissions of hazardous air pollutants.
8) Establishes the California Safe Drinking Water Act and requires the State Water Resources Control Board (State Water Board) and regional water quality control boards to maintain a drinking water program.
9) Establishes the Porter-Cologne Water Quality Control Act, which prohibits the discharge of pollutants to surface waters unless the discharger obtains a permit from the State Water Board or regional water quality control board.
THIS BILL:
- Defines "baseline federal standards" as the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016 or January 1, 2017, whichever is more stringent.
- Defines "baseline federal standards for other federal laws" as the authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
- Defines "federal law" as including the federal Clean Air Act, the federal Endangered Species Act of 1973, the federal Safe Drinking Water Act, and the federal Water Pollution Control Act.
- Defines "other federal laws" as any other federal law not specified as a federal law relating to environmental protection, natural resources, or public health.
- Prohibits a state or local agency from amending or revising its rules and regulations to be less stringent than the baseline federal standards.
- Authorizes a state or local agency to establish rules and regulations for California that are more stringent than the baseline federal standards.
- Prohibits a state or local agency that is delegated the authority to enforce other federal laws, or that implements the state law that is an analogue to the other federal laws, from amending or revising its rules and regulations to be less stringent than the baseline federal standards for other federal laws. Authorizes these entities to establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws.
- Requires the Air Resources Board (ARB), air quality management districts, and air pollution control districts to maintain and enforce all air quality standards that are at least as stringent as required by the baseline federal standards, in addition to those required by state law.
- Requires ARB to adopt a standard or requirement for an air pollutant that is at least as stringent as the baseline federal standard, if there is a baseline federal standard for an air pollutant for which the ARB has not already adopted a standard or requirement.
- Requires ARB, regional air quality management districts, and air pollution control districts to adopt state implementation plans for California that meet requirements that are at least as stringent as those required by the applicable baseline federal standards, in addition to those required by state law.
- If the federal transportation conformity program becomes less stringent than the applicable baseline federal standards, requires the ARB, air quality management districts, and air pollution control districts to adopt and implement "equivalent requirements that are at least as stringent" as those required by the applicable baseline federal standards.
- If the US EPA no longer implements the prevention of significant deterioration program in accordance with the applicable baseline federal standards, requires ARB, as specified, to immediately establish a state prevention of significant deterioration program to issue permits that are at least as stringent as the applicable baseline federal standards.
- Requires the State Water Board to maintain and enforce all drinking water standards that are at least as stringent as required by the baseline federal standards, in addition to those required by state law.
- Requires the State Water Board to adopt a standard or requirement for water supply or water quality at least as stringent as the baseline federal standard, if there is a baseline federal standard for water supply or water quality for which the State Water Board has not already adopted a standard or requirement.
- Requires the State Water Board to adopt a drinking water standard or requirement at least as stringent as the baseline federal standard, if there is a baseline federal standard for drinking water for which the State Water Board has not already adopted a standard or requirement.
- Requires all waste discharge requirements and permits issued on and after January 1, 2018, to at least be as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as is required by the federal baseline standards in addition to those required by state law.
- Requires all drinking water supply permits issued on and after January 1, 2018, to be at least as protective of public health and comply with all applicable drinking water standards as is required by the federal baseline standards, in addition to those required by state law.
- Requires a water quality control plan adopted on or after January 1, 2018, to be at least as protective of the environment, pursuant to and in compliance with all applicable water quality standards, effluent limitations, and restrictions as required by the federal baseline standards, in addition to those required by state law.
- Requires a waste discharge requirement or water quality control plan, if renewed or amended, to ensure that any water quality standards, effluent limitations, restrictions, and conditions are at least as protective of the environment, pursuant to and in compliance with all applicable water quality standards, effluent limitations, and restrictions as provided by the federal baseline standards, in addition to those required by state law.
- Requires all native species listed as endangered or threatened, as of January 1, 2017, pursuant to the federal Endangered Species Act of 1973, that are not listed as threatened or endangered pursuant to California law, to be listed as threatened or endangered pursuant to California law. Authorizes the Fish and Wildlife Commission to review and modify the listing of species.
- Requires any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, to only authorize incidental take if it requires conditions that are at least as stringent as those required by the relevant baseline federal standards.
- States that, to the extent authorized by the federal Reclamation Act of 1902, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
- Prohibits a state agency from amending or revising its rules or regulations in a manner that is less stringent in its protection of workers' rights or worker safety than standards established pursuant to federal law.
- Authorizes a state agency to establish workers' rights and worker safety standards for California that are more stringent than those provided in federal law.
- Requires every state agency, including the Department of Justice, to undertake all feasible efforts using its authority under state and federal law to implement and enforce the bill.
- Requires every state agency that takes steps to enforce the Act to submit a report to the Legislature at least once every six months describing its compliance with the bill.
- Authorizes an action, only if US EPA has revised the standards or requirements to be less stringent than the federal baseline standards and if the federal Clean Water Act is amended to restrict, condition, or abridge or repeal the citizen suit provision set forth in federal law, to be brought by a person in the public interest to enforce the standards and requirements for all water supply and water quality standards, drinking water standards, and waste discharge requirements that are required to be at least as stringent as the federal baseline standards, as specified.
- States that the provisions of the bill are severable and if any provision of the Act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
FISCAL EFFECT: Unknown
COMMENTS:
- Author's statement:
SB 49 ensures clean air, clean water, endangered species, and worker safety standards that have been in place for as long as 50 years are not rolled back as a result of the anti-environment actions of the President and Congress. In the past four months, the new administration and Congress have adopted action after action to weaken, roll back, and outright repeal longstanding and well-accepted standards to protect public health and the environment. SB 49 simply ensures those standards stay in place to protect every day Californians, even if the federal government rolls them back.
- California's impact. California is the most populous state in the union with a population of nearly 40 million people. It is the third largest state by area at 163,696 square miles. It is the 6th largest economy in the world. California’s geographic, population, and economic size make California’s impact global in nature.
California's population and economic activities have impacted its environment. California began to enact environmental policies before the federal government in many cases, recognizing the importance of these policies to its citizens and economy. California has been a model for other states as well as the federal government. For instance, California had developed clean air standards prior to the federal Clean Air Act. California’s environmental leadership also drives technology and scientific innovation that has strengthened the state’s economy.
- Federal rollbacks. The current federal administration has made it clear that it presumes that environmental law and regulation jeopardize economic growth in the United States and has committed to numerous actions to rollback federal environmental protections. A partial list includes:
- The President has stated that man-made climate change a “hoax created by and for the Chinese to make American manufacturing non-competitive.” A week after he took office, the US EPA deleted climate change data from its website.
- The US withdrew the final determination on strict vehicle fuel-efficiency standards.
- The administration's proposed budget cut the US EPA's budget by 31%.
- The President signed an executive order to undo the Waters of the United States Rule that extended federal protections to smaller rivers and streams.
- The President signed the “Energy Independence Executive Order,” which repealed Obama-era policies to curb planet-warming greenhouse gas emissions.
- The President signed into law H.J. Res. 38 (Johnson, R–OH), which nullifies the Department of Interior’s Stream Protection Rule. The Stream Protection Rule targets coal-mining industry practices to protect waterways by requiring companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests by requiring companies to restore streams and return mined areas to the uses they were capable of supporting prior to mining activities, and to replant the areas with native trees and vegetation, unless that would conflict with the implemented land use.
- The administration placed comprehensive gag orders on federal agency staff, including the US EPA, the Department of the Interior, and the Department of Energy.
- On June 1, 2017, President Trump announced that the United States would withdraw from the Paris Agreement, stating that the Agreement imposes "draconian financial and economic burdens… on our country." The President's statement indicated that he intends to renegotiate the Paris Agreement to "make a deal that's fair;" however, leaders of other member countries have stated that the Agreement is "irreversible" and cannot be renegotiated. The US had agreed to cut greenhouse gas emissions by 26-28% below 2005 levels by 2025. Leaving the Agreement also stops aid payments the US had pledged for less developed countries by 2020.
- No backsies. This bill specifies that there be "no backsliding as a result of any change in federal" laws. While this provision is intended to preserve minimum environmental standards, in practice, it creates significant challenges for regulators. For example, California's air qualities requirements may vary based on the public health and environmental conditions in different air basins, emissions control equipment limitations, and other factors. A specific example of this balance provided by the California Air Pollution Control Officers Association is selective catalytic reduction. This technology has reduced emissions of NOx, SOx, and other emissions, but the ammonia injected into the emissions stream to activate the catalyst can increase particulate matter emissions, which have a significant public health impact. The current language in the bill prevents ARB and the districts from making changes to existing requirements to improve public health if they potentially increase alternate emissions.
The authors and committee should work with stakeholders and regulators to ensure that this provision is clarified to allow the necessary flexibility to provide the greatest protections overall for public health and safety and the environment.
- Suggested amendments. Due to legislative deadlines, this bill is set to be heard in the Assembly Judiciary Committee on July 11th. In order to ensure that this bill accomplishes the author's intent, but given the tight timeline, the committee may wish to agree that the following amendments be adopted when the bill is heard in that committee:
- Amend the bill to direct state agencies to act when the federal government repeals or revises a federal law or regulation that is applicable to California to be less stringent than the federal baseline standards, as determined by the state agency, and where a comparable state standard does not exist. This change will allow the state to continue to lead the nation on environmental policies rather than redirecting its regulatory efforts toward adopting existing federal minimum standards.
- Specify on a date certain the federal baseline standards for the laws referenced by the bill, rather than referring to January 1, 2016 or January 1, 2017, whichever is more stringent.
- Authorize state agencies to adopt regulatory changes pursuant to the bill using the process established by Section 100 of Title 1 of the California Code of Regulations.
- Clarify the definition of "other federal laws." There are thousands of federal laws and regulations that could be included under this provision, making compliance with this provision by state and local agencies challenging. In order to ensure that state and local agencies can implement this requirement, this provision should include more specificity.
- Make related technical and clarifying amendments.
- Amend the bill to direct state agencies to act when the federal government repeals or revises a federal law or regulation that is applicable to California to be less stringent than the federal baseline standards, as determined by the state agency, and where a comparable state standard does not exist. This change will allow the state to continue to lead the nation on environmental policies rather than redirecting its regulatory efforts toward adopting existing federal minimum standards.
- Related legislation. This bill is one of a package of Senate bills aimed at insulating the state from rollbacks in federal environmental regulations and public health protections:
- SB 50 (Allen) prohibits a person from knowingly filing or recording a deed, instrument, or other document related to a conveyance of federal land unless the State Lands Commission is given right of first refusal for the conveyance or the right to arrange for the transfer of the federal public land. This bill passed out of this committee on June 26th with a vote of 7-3 and is scheduled to be heard in the Assembly Judiciary Committee on July 11th.
- SB 51 (Jackson) prohibits state professional licensing entities from taking disciplinary action against a public employee for reporting improper governmental activity or sharing information about scientific or technical research in a scientific or a public forum or with the media. This bill passed out of this committee on June 26th with a vote of 10-0 and is scheduled to be heard in the Assembly Judiciary Committee on July 11th.
- Previous legislation. SB 288 (Sher, Chapter 476, Statutes of 2003) was enacted to preserve the state’s right to uphold the federal Clean Air Act standard, which required each major new and modified source of air pollution to undergo “new source review” to ensure that facilities install the best available control equipment, obtain offsets for any new emissions, and comply with any other requirement to ensure that the new and modified sources do not adversely affect air quality. On December 31, 2002, the Administrator of US EPA promulgated regulations implementing the new source review program that changed that program.
SB 288 established the Protect California Air Act of 2003, which prohibited air quality management districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under specified circumstances.
- Triple referral. SB 49 has been referred to the Assembly Environmental Safety and Toxic Materials Committee, the Assembly Natural Resources Committee, and the Assembly Judiciary Committee. This bill passed out of the Environmental Safety and Toxic Materials Committee on June 27th with a vote of 4-2. Should this bill pass out of this committee, it will be heard by the Judiciary Committee on July 11th.
REGISTERED SUPPORT / OPPOSITION:
Support
350 Sacramento
All About Wells
All Good
American Federation of State, County And Municipal Employees, AFL-CIO
American Lung Association In California
American Rivers
American Whitewater
Asian Pacific Environmental Network
Audubon Society
Breast Cancer Prevention Partners
Bureo Skateboards
Butte Environmental Council
Cal Outdoors
California Bicycle Coalition
California Climate & Energy Environmental Defense Fund
California Coastal Protection Network
California Coastkeeper Alliance
California Interfaith Power & Light
California Labor Federation, AFL-CIO
California League of Conservation Voters
California Professional Firefighters
California ReLeaf
California Sportsfishing Protection Alliance
California State Association of Electrical Workers
California Water Impact Network
Center for Biological Diversity
Channel Islands Surfboards
ChicoBag Company
Clean Water Action
Coalition For A Safe Environment
Coast Seafoods Company
Community Dreams
Contech Engineered Solutions
Contra Costa Water District
Davero Farms & Winery
Earth Friendly Products
East Yard Communities For Environmental Justice
Environment California
Environmental Defense Center
Environmental Entrepreneurs
Environmental Working Group
Exergy Systems
Foothill Conservancy
Fossil Free California
Friends Committee On Legislation Of California
Friends of Harbors, Beaches and Parks
Friends of The River
Half Moon Bay Brewing
Heal The Bay
Hills For Everyone
Hog Island Oyster Company
Hotel Healdsburg & H2hotel
John Paul Mitchell Systems
Johnson's Beach Resort
Kleen Kanteen
Kokatat
League Of Women Voters Of California
Los Angeles Waterkeeper
Mara Hoffman
Mia Lehrer + Associates
Mixte Communications
Mono Lake Committee
Mountain Lion Foundation
National Parks Conservation Association
Natural Resources Defense Council
Nopa/Nopalito
O.A.R.S.
Okiino
Pacific Outfitters
Patagonia
Permacity Solar
Pesticide Action Network
Poseidon Paddle & Surf
Prevention Institute
Purakai Clothing
REI
Restore The Delta
Sacramento River Preservation Trust
Sagebrush Board Bags
Salty Girl Seafood
Samudra Skin & Sea
Sea Forager
Seventh Generation Advisors
Shelter Company
Sierra Business Council
Sierra Club
Simply Straws
Smiley's Saloon & Hotel
Stokeshare
Surfrider Foundation
Sustainable Silicon Valley
The Bay Institute
The Inertia
The Nature Conservancy
The River Project
The Trust For Public Land
Three Forks Bakery & Brewing Co.
UAW Local 5810
Urban Barrels
Voices For Progress
Western States Council Of Sheet Metal Workers
Wholly H2O
Wishtoyo Chumash Foundation
Wishtoyo Foundation
Yubadocs Urgent Care
Opposition
Agricultural Council of California
Almond Alliance of California
American Coatings Association
American Insurance Association
Association of California Egg Farmers
Association of California Water Agencies
Auto Care Association
California Association of Realtors
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Construction & Industrial Materials Association
California Cotton Ginners & Growers Association
California Farm Bureau Federation
California Forestry Association
California Fresh Fruit Association
California Grain & Feed Association
California Independent Petroleum Association
California League of Food Processors
California Licensed Foresters Association
California Manufacturers and Technology Association
California Metals Coalition
California Paint Council
California Pear Growers
California Seed Association
California State Floral Association
California Strawberry Commission
California Warehouse Association
California Women for Agriculture
CAWA - Representing The Automotive Parts Industry
Chemical Industry Council of California
Civil Justice Association of California
Family Business Association of California
Forest Landowners of California
Greater San Fernando Valley Chamber of Commerce
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Federation of Independent Business
Pacific Egg and Poultry Association
Simi Valley Chamber of Commerce
South Valley Water Association
Southwest California Legislative Council
Valley Industry & Commerce Association
West Coast Lumber & Building Material Association
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by: Elizabeth MacMillan / NAT. RES. /
Date of Hearing: June 27, 2017
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bill Quirk, Chair
SBPCA Bill Id:SB 49
Author:(De León) – As Amended Ver:May 26, 2017
SENATE VOTE: 24-13
SUBJECT: California Environmental, Public Health, and Workers Defense Act of 2017
SUMMARY: Enacts the California Environmental, Public Health, and Workers Defense Act (Act) of 2017, which prohibits a state or local agency from amending or revising its rules to be less stringent than the federal baseline standards pertaining to environmental protection. Specifically, this bill:
1) Defines "baseline federal standards" as the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations implementing the federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
2) Defines "baseline federal standards for other federal laws" as the authorizations, policies, objectives, rules, requirements, and standards contained in other federal laws or federal regulations implementing the other federal laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
3) Defines "federal law" as including the federal Clean Air Act, the federal Endangered Species Act of 1973, the federal Safe Drinking Water Act, and the federal Water Pollution Control Act.
4) Defines "other federal laws" as any other federal law not specified as a federal law relating to environmental protection, natural resources, or public health.
5) Prohibits a state or local agency from amending or revising its rules and regulations to be less stringent than the baseline federal standards.
6) Authorizes a state or local agency to establish rules and regulations for California that are more stringent than the baseline federal standards.
7) Prohibits a state or local agency that is delegated the authority to enforce other federal laws, or that implements the state law that is an analogue to the other federal laws, from amending or revising its rules and regulations to be less stringent than the baseline federal standards for other federal laws. Authorizes these entities to establish rules and regulations for California that are more stringent than the baseline federal standards for other federal laws.
8) Requires the State Water Resources Control Board (State Water Board) and the Regional Water Quality Control Boards (Regional Boards) to maintain and enforce all water supply and water quality standards that are at least as stringent as required by the baseline federal standards, in addition to those required by state law.
9) Requires the State Air Resources Board (Air Board), air quality management districts, and air pollution control districts to maintain and enforce all air quality standards that are at least as stringent as required by the baseline federal standards, in addition to those required by state law.
10) Requires the Air Board to adopt a standard or requirement for an air pollutant that is at least as stringent as the baseline federal standard, if there is a baseline federal standard for an air pollutant for which the Air Board has not already adopted a standard or requirement.
11) Requires the State Water Board to maintain and enforce all drinking water standards that are at least as stringent as required by the baseline federal standards, in addition to those required by state law.
12) Requires the State Water Board to adopt a standard or requirement for water supply or water quality at least as stringent as the baseline federal standard, if there is a baseline federal standard for water supply or water quality for which the State Water Board has not already adopted a standard or requirement.
13) Requires the State Water Board to adopt a drinking water standard or requirement at least as stringent as the baseline federal standard, if there is a baseline federal standard for drinking water for which the State Water Board has not already adopted a standard or requirement.
14) Requires all waste discharge requirements and permits issued on and after January 1, 2018, to at least be as protective of the environment and comply with all applicable water quality standards, effluent limitations, and restrictions as is required by the federal baseline standards in addition to those required by state law.
15) Requires all drinking water supply permits issued on and after January 1, 2018, to be at least as protective of public health and comply with all applicable drinking water standards as is required by the federal baseline standards, in addition to those required by state law.
16) Requires a water quality control plan adopted on or after January 1, 2018, to be at least as protective of the environment, pursuant to and in compliance with all applicable water quality standards, effluent limitations, and restrictions as required by the federal baseline standards, in addition to those required by state law.
17) Requires a waste discharge requirement or water quality control plan, if renewed or amended, to ensure that any water quality standards, effluent limitations, restrictions, and conditions are at least as protective of the environment, pursuant to and in compliance with all applicable water quality standards, effluent limitations, and restrictions as provided by the federal baseline standards, in addition to those required by state law.
18) Requires all native species listed as endangered or threatened, as of January 1, 2017, pursuant to the federal Endangered Species Act of 1973, that are not listed as threatened or endangered pursuant to California law, to be listed as threatened or endangered pursuant to California law. Authorizes the Fish and Game Commission to review and modify the listing of species.
19) Requires any new or revised consistency determination or incidental take permit issued to a permittee on or after January 1, 2018, to only authorize incidental take if it requires conditions that are at least as stringent as those required by the relevant baseline federal standards.
20) States that, to the extent authorized by the federal Reclamation Act of 1902, the California Endangered Species Act shall apply to the operation of the federal Central Valley Project.
21) Prohibits a state agency from amending or revising its rules or regulations in a manner that is less stringent in its protection of worker's rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
22) Authorizes a state agency to establish worker's rights and worker safety standards for California that are more stringent than those provided in federal law, as it existed on January 1, 2016.
23) Requires every state agency, including the Department of Justice, to undertake all feasible efforts using its authority under state and federal law to implement and enforce the Act.
24) Requires every state agency that takes steps to enforce the Act to submit a report to the Legislature at least once every six months describing its compliance with the Act.
25) Authorizes an action, only if the United States Environmental Protection Agency (US EPA) has revised the standards or requirements under the Act to be less stringent than the federal baseline standards and if the federal Clean Water Act is amended to restrict, condition, or abridge or repeal the citizen suit provision set forth in federal law, to be brought by a person in the public interest to enforce the standards and requirements for all water supply and water quality standards, drinking water standards, and waste discharge requirements that are required to be at least as stringent as the federal baseline standards, pursuant to the Act.
26) States that the provisions of the Act are severable and if any provision of the Act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
EXISTING LAW:
1) Establishes the federal Clean Water Act (CWA) to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (U.S.C.) §1251 et seq.)
2) Establishes the National Pollutant Discharge Elimination System (NPDES) permit program to regulate the discharge of pollutants in storm water, including municipal storm water systems. (33 U.S.C. § 1251 et seq.)
3) Establishes the federal Safe Drinking Water Act (SDWA) to set standards for drinking water quality and to oversee the states, localities, and water suppliers who implement those standards. (42 U.S.C. § 300f et. seq.)
4) Establishes the federal Endangered Species Act (ESA) to protect and recover imperiled species and the ecosystems upon which they depend. (16 U.S.C. § 1531 et. seq.)
5) Establishes the federal Clean Air Act to regulate air emissions from stationary and mobile sources. Requires US EPA to establish National Ambient Air Quality Standards to protect public health and public welfare and to regulate emissions of hazardous air pollutants. (42 U.S.C. § 7401 et seq.)
6) Establishes the federal Resource Conservation and Recovery Act (RCRA) which includes the national hazardous waste management program. (42 U.S.C. § 6901 et seq.)
7) Creates the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) also known as the federal "Superfund" program, to clean up uncontrolled or abandoned hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants in to the environment. Provides the US EPA with the authority to seek out those parties responsible for any release and assure their cooperation in the cleanup. (42 U.S.C. § 9601 et seq.)
8) Establishes the California Safe Drinking Water Act (California SDWA) and requires the State Water Board to maintain a drinking water program. (Health & Safety Code (HSC) § 116270, et seq.)
9) Establishes the Porter-Cologne Water Quality Control Act, which prohibits the discharge of pollutants to surface waters unless the discharger obtains a permit from the State Water Board. (Water Code § 1300 et seq.)
10) Establishes the Carpenter-Presley-Tanner Hazardous Substance Account Act (HSAA), a program to provide for response authority for releases of hazardous substances, including spills and hazardous waste disposal sites that pose a threat to the public health or the environment. (HSC § 25300 et seq.)
11) Creates the Hazardous Waste Control Law (HWCL) which authorizes the Department of Toxic Substances Control (DTSC) to regulate the management of hazardous wastes in California. (HSC § 25100 et. seq.)
FISCAL EFFECT: Unknown.
COMMENTS: Need for the bill: According to the author, "President Trump and his Administration have promised to withdraw from the landmark Paris Climate Agreement signed by 144 other nations. The United States would be by far the largest emitter of climate pollution to secede from the treaty. The Trump Administration has signaled that it wants to "reexamine the science" used to set standards; reduce the staff at the US EPA by up to two-thirds which would gut its ability to set health based standards; and, make regulations more cost-effective and business-friendly. All of these actions are euphemisms for weakening environmental and public health protections. They are the precise motivations behind actions that lead to the drinking water disaster in Flint Michigan."
Federal Clean Water Act (CWA): The federal CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Under the CWA, the US EPA has implemented pollution control programs, including setting wastewater standards for industrial facilities, as well as setting water quality standards for all contaminants in surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters without a permit. Industrial, municipal, and other facilities must obtain a permit under the National Pollutant Discharge Elimination System (NPDES) in order to discharge into surface water.
Federal Safe Drinking Water Act (SDWA): The federal SDWA was enacted in 1974 to protect public health by regulating drinking water. The US EPA enforces the federal SDWA at the national level. The federal SDWA authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and anthropogenic contaminants that may be found in drinking water.
There are a number of threats to drinking water: improperly disposed of chemicals; animal wastes; pesticides; human wastes; wastes injected underground; and, naturally-occurring substances. Likewise, drinking water that is not properly treated or disinfected, or which travels through an improperly maintained distribution system, may also pose a health risk.
The SDWA applies to every public water system in the United States. There are currently more than 170,000 public water systems providing water to almost all Americans at some time in their lives. The responsibility for making sure these public water systems provide safe drinking water is divided among US EPA, states, tribes, water systems, and the public. The SDWA provides a framework in which these parties work together to protect this valuable resource.
Most states, including California, have been granted "primacy" by the US EPA, giving them the authority to implement and enforce the federal SDWA at the state level. California has enacted its own safe drinking water act to implement the federal law and establish state standards.
Federal Endangered Species Act (ESA): The purpose of the federal ESA is to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the US Fish and Wildlife Service and the National Marine Fisheries Service. Under the federal ESA, species may be listed as either endangered or threatened. "Endangered" means a species is in danger of extinction throughout all or a significant portion of its range. "Threatened" means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened.
SB 49 includes baseline standards for other federal laws, and while not an inclusive list, below are a couple examples of other environmental federal laws.
Federal hazardous waste regulation: The federal Resource Conservation and Recovery Act (RCRA) established three programs: hazardous waste management (RCRA Subtitle C), solid waste management (RCRA Subtitle D) and the underground storage tank program (RCRA Subtitle I). RCRA provides "cradle-to-grave" control of solid and hazardous waste by establishing management requirements for generators and transporters of hazardous waste treatment, storage, and disposal facilities. Most states have been authorized to implement some or all of the RCRA subtitle C program. State RCRA programs must be at least as stringent as the federal program, but states also can adopt more stringent requirements.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): CERCLA or Superfund, provides a federal "Superfund" to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through CERCLA, US EPA was given authority to seek out those parties responsible for any release and assure their cooperation in the cleanup. The US EPA cleans up orphan sites when potentially responsible parties cannot be identified or located, or when they fail to act. Through various enforcement tools, US EPA obtains private party cleanup through orders, consent decrees, and other small party settlements. US EPA also recovers costs from financially viable individuals and companies once a response action has been completed. US EPA is authorized to implement CERCLA in all 50 states and US territories. Superfund site identification, monitoring, and response activities in states are coordinated through the states’ environmental protection or waste management agencies.
Actions by the Trump Administration that could weaken federal environmental protections: On January 30, 2017, President Trump issued an Executive Order on Reducing Regulation and Controlling Regulatory Costs, which requires each federal agency or department, when proposing a regulation, to identify two existing regulations to be repealed. This Executive Order does not give any direction to federal agencies to ensure that regulations protect human health and safety, and the environment, and is simply a numbers game that does not require an evaluation of a regulations' effectiveness.
On February 24, 2017, President Trump issued an Executive Order on Enforcing the Regulatory Reform Agency, which creates a regulatory reform task force and requires the task force to evaluate existing regulations and make recommendations for their repeal. The task force is required to identify regulations that eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; and create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies. Missing from this Executive Order is an evaluation of the benefits of a regulation on protecting human health and the environment, including the potential reduction in health care costs and increase productivity by having certain environmental regulations in place.
Response to President Trump's anti-environmental policies: SB 49 was introduced to respond to the Trump Administration's attack on laws and regulations that protect public health and the environment. It is clear that the new federal administration is interested in easing compliance with laws and regulations for multi-billion dollar corporations; however, it is unclear exactly what environmental laws or regulations could become a target for weakening or repealing. SB 49 simply sets a floor for the federal environmental laws currently in place in order to ensure that the public health benefits of these laws are maintained in California. The public health protections provided by the federal Clean Air Act, federal Clean Water Act, and all of the environmental laws and regulations in place, provide very important and very real benefits to everyone in this country. Loosening these federal requirements, such as allowing businesses to dump toxic wastes near schools and homes, or allow entities to emit toxic chemicals into the air, could set us back decades in terms of the environmental protections that have been achieved.
California is the sixth largest economy in the world and has some of the most, if not the most, protective public health and environmental laws in the country. Protecting human health and the environment and promoting economic growth are not mutually exclusive. There is a balance, and early indications from the Trump Administration are that the President does not see the balance and only sees the side of the equation that does not include protecting human health and the environment. SB 49 is intended to ensure that the strong environmental protections, coupled with the strong economic performance that California has achieved is not un-done by the Trump Administration.
Issues the Author may wish to consider:
Clarify the baseline federal law: The bill currently states that the baseline federal law is the law or regulation in existence on January 1, 2016 or January 1, 2017. In order to provide clarity, the author may wish to select one of those years to be the baseline.
Clarify state agency decision-making on stringency of a new federal law or regulation: The author may wish to consider clarifying that each state agency responsible for implementing the federal law would make some type of determination as to whether or not a new federal law or regulation is more stringent than the baseline federal standard.
Clarify the requirement to adopt federal standards into state regulation if the standard does not exist in California: In Article 3 of the bill, it requires the State Water Board to adopt a standard or requirement for which there is a federal standard or requirement but not one in state law or regulation. The author may wish to clarify that the Water Board may not have to adopt a federal standard if there is a state standard that, while may be not identical to the federal standard, is just as or more stringent than the federal standard.
Triple referral: SB 49 has been referred to the Assembly Environmental Safety and Toxic Materials Committee, the Assembly Natural Resources Committee, and the Assembly Judiciary Committee. Should SB 49 pass out of this committee, it will be re-referred to the Assembly Natural Resources Committee.
Related Legislation:
1) SB 50 (Allen). Establishes a policy of the state to discourage conveyances of federal public lands in California to third parties and establishes a process at the State Lands Commission to implement or waive this policy, as well as exempting routine conveyances from the federal government, as well as exempting certain leases, tribal conveyances, and conveyances pursuant to a conservation plan. SB 50 is set for hearing in the Assembly Natural Resources Committee on June 26, 2017.
2) SB 51 (Jackson). Requires the Secretary for the California Environmental Protection Agency to ensure that all scientific information and other data otherwise in the public domain is protected against censorship or destruction by the federal government. This bill also prohibits a licensing entity, other than the State Bar of California, from taking disciplinary action, including suspension, loss of credential, registration, or other professional privilege against a public employee or employee of a government contractor, subcontractor, or grantee if that person reports improper governmental activity or communicates the results of, or information about, scientific or technical research in a scientific or a public forum or with the media. SB 51 is set for hearing in the Assembly Natural Resources Committee on June 26, 2017.
3) SB 288 (Sher, Chapter 476, Statutes of 2003). Established the Protect California Air Act of 2003, prohibiting air quality management districts in California from amending or revising the Federal Clean Air Act (FCAA) related rules or regulations to be less stringent than those federal rules or regulations that existed on December 30, 2002, except under certain circumstances. This bill was a response to federal action on December 31, 2002, to reduce standards associated with the FCAA.
REGISTERED SUPPORT / OPPOSITION:
Support
350 Bay Area Legislative Bill Review Committee
All About Wells
All Good
American Federation of State, County and Municipal Employees
American Lung Association
American Rivers
American Whitewater
APEN
Audubon Society
Bureo Skateboards
Butte Environmental Council
California Bicycle Coalition
California Coastal Protection Network
California Coastkeeper Alliance
California Environmental Justice Alliance
California Labor Federation
California League of Conservation Voters
California Native Plant Society
California Professional Firefighters
California Releaf
California Sportfishing Protection Alliance
California State Association of Electrical Workers
California Water Impact Network
California Wilderness Coalition
Cal Outdoors
Central Valley Air Quality Coalition
Channel Islands Surfboards
ChicoBag Company
Clean Water Action
Coalition for Clean Air
Coast Seafoods Company
Contech Engineered Solutions
Da Vero Farms & Winery
Earth Friendly Products
East Bay Municipal Utility District
Environment California
Environmental Defense Fund
Environmental Entrepreneurs
Environmental Working Group
Foothill Conservancy
Fossil free California
Friends Committee on Legislation in California
Friends of Harbors, Beaches and Parks
Friends of the River
Half Moon Bay Brewing
Heal the Bay
Hills for Everyone
Hog Island Oyster Co.
Hotel Healdsburg
h2hotel
Humboldt Baykeeper
Inland Empire Waterkeeper
John Paul Mitchell Systems
Johnson's Beach Resort
Klamath Riverkeeper
Klean Kanteen
Kokatat Inc.
League of Women Voters of California
Los Angeles Waterkeeper
Mara Hoffman
Mixte Communications
Mono Lake Committee
Monterey Coastkeeper
Natural Resources Defense Council
Nopa/Nopalito
O.A.R.S.
Okiino
Orange County Coastkeeper
Pacific Outfitters
PAN
PermaCity Solar
Poseidon Paddle & Surf
PuraKai Clothing
REI, San Pedro
Restore the Delta
Russian Riverkeeper
Sacramento River Preservation Trust
Sagebrush Board Bags
Salty Girl Seafood
Samudra Skin & Sea
San Diego Coastkeeper
Santa Barbara Channelkeeper
Sea Forager
Shelter Co.
Sierra Club
Simply Straws
Smiley's Saloon & Hotel
South Yuba River Citizens League
State Building and Construction Trades Council
StokeShare
Surfrider Foundation
Sustainable Silicon Valley
The Bay Institute
The Environmental Justice Coalition for Water
The Inertia
The Nature Conservancy
The Otter Project
The Trust for Public Land
Three Forks Bakery & Brewing Co.
Urban Barrels
Voices for Progress
Western States council of Sheet Metal Workers
Wholly H2O
Winnemem Wintu Tribe
YubaDocs Urgent Care
Opposition
Agricultural Council of California
American Coatings Association
American Insurance Association
Association of California Water Agencies
Auto Care Association
California Association of Realtors
California Association of Winegrape Growers
California Building Industry Association
California Business Properties Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Construction and Industrial Materials Association
California Cotton Ginners and Growers Association, Inc.
California Farm Bureau Federation
California Forestry Association
California Fresh Fruit Association
California Independent Petroleum Association
California League of Food Processors
California Licensed Foresters Association
California Manufacturers & Technology Association
California Metals Coalition
California Paint Council
California Strawberries Commission
California Women for Agriculture
CAWA – Representing the Automotive Parts Industry
Chemical Industry Council of California
Civil Justice Association of California
Family Business Association of California
Forest Landowners of California
Greater San Fernando Valley Chamber of Commerce
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Federation of Independent Business
Simi Valley Chamber of Commerce
South Valley Water Association
Southwest California Legislative Council
Valley Industry & Commerce Association
West Coast Lumber & Building Material Association
Western Plant Health Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
Analysis Prepared by: Josh Tooker / E.S. & T.M. /
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 49
:
SENATE NATURAL RES. & WATER COMMITTEE: 7-2, 3/14/17
AYES: Hertzberg, Allen, Atkins, Hueso, Jackson, Monning, Stern
NOES: Stone, Vidak
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 4/5/17
AYES: Wieckowski, Hill, Lara, Skinner, Stern
NOES: Stone, Bates
SENATE JUDICIARY COMMITTEE: 5-2, 4/25/17
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
DIGEST:
This bill establishes certain minimum federal environmental, public health, and labor standards as baselines in the event the Congress or President repeal or weaken corresponding federal standards. This bill prohibits the corresponding California standards from falling below those baselines. The baselines would be the federal standards in effect as of January 1, 2016, or January 1, 2017, whichever are more stringent. In the event that new federal standards fall below the baseline, this bill allows private citizens to enforce the state standards if the corresponding federal private right of action to enforce federal standards is repealed. This bill expressly authorizes private citizens to petition the courts to make state and local government agencies comply with its terms. Finally, this bill requires state agencies to report periodically to the Legislature on compliance.
Existing federal law:
- Regulates, under the Clean Air Act (FCAA), air emissions from stationary and mobile sources. Among other things, this law authorizes the United States Environmental Protection Agency (US EPA) to establish National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants.
- Regulates, under the Clean Water Act (CWA), discharges of pollutants into the waters of the United States and regulates quality standards for surface waters. CWA makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained and provides that the National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. (Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.)
- Regulates, under the Safe Drinking Water Act (SDWA), the nation’s public drinking water supply, and requires the US EPA to establish mandatory nationwide drinking water standards. It also requires water systems to monitor public water supplies to ensure drinking water standards are met and report to consumers if the standards are not met. One of the motivations underlying the passage of the SDWA was to set national standards for wells that have the potential to impact underground aquifers suitable to provide drinking water including underground injection wells which are oil and gas injection and disposal wells. There are roughly 55,000 such wells in the state, thousands of which are improperly permitted.
- Provides, under the Endangered Species Act (ESA), for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend.
- Authorizes, pursuant to each of these statutes, states to act either as delegates for implementing and enforcing the federal acts, as long as the state’s laws are at least as stringent as or more stringent than the federal act or to enact their own similar state statute. California’s laws often preceded the federal acts and provided a model for the federal government to follow. For example, the ongoing effort to protect underground water supplies depends on the provisions of the SDWA from being weakened by Congress.
Existing state law:
- Prohibits, under the Protect California Air Act of 2003, air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances.
- Establishes, under the California Global Warming Solutions Act of 2006 (AB 32), a comprehensive program to reduce greenhouse gas emissions from all sources throughout the state to combat climate change.
- Regulates, under the Porter-Cologne Water Quality Control Act, the discharge of pollutants into the waters of the state.
- Establishes, under the California Safe Drinking Water Act, standards for drinking water and regulates drinking water systems.
- Requires, under the California Endangered Species Act (CESA), the Fish and Game Commission to establish a list of endangered species and a list of threatened species and generally prohibits the taking of those species. It also provides a streamlined mechanism for concurrence in a federal incidental take permit through what is termed a “consistency determination” that avoids the need of a project applicant to apply twice for the same take authority under both acts.
This bill:
- Establishes as baseline standards the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations relating to environmental protection, natural resources or public health in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent with specific reference to the FCAA, CWA, ESA, and SDWA, as well as all other federal environmental laws.
- Prohibits state or local agencies from amending or revising their rules and regulations to be less stringent than those baseline standards while permitting those agencies to adopt more stringent standards.
- Directs various state and local agencies with authority over standards and programs relating to air quality, water quality, and endangered species, to take specified steps to ensure no backsliding from the baseline standards.
- Prohibits state agencies from amending or revising their rules or regulations relating to workers’ rights or worker safety in a manner that would make them less stringent than the standards established pursuant to federal law in existence as of January 1, 2016, while permitting the adoption of more stringent standards.
- Authorizes a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. This bill makes the operation of this authorization contingent on the occurrence of certain events.
- Prohibits a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers’ rights or worker safety than standards established by federal law in existence as of January 1, 2016.
- Authorizes expressly a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agency’s action for compliance with, this bill.
- Requires state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
- Provides that federally listed threatened or endangered species that are not currently listed under the CESA would be designated as threatened or endangered under CESA if and when there are backsliding amendments adopted to the federal law.
- Requires the Department of Fish and Wildlife (DFW) not to authorize take or to issue a consistency determination unless those measures require conditions at least as stringent as required by the relevant baseline federal standard.
- Provides that to the extent authorized by the 1902 Reclamation Act and other federal laws, that CESA applies to the operation of the federal Central Valley Project.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, up to $10.5 million ongoing (Fish and Game Preservation Fund and other special funds) to the DFW for staff necessary to implement this bill. Actual costs will depend on, among other things, if and how many of the species currently listed under federal ESA, will be listed under state law. In addition, unknown, potentially significant, cost (special fund) to the California Environmental Protection Agency, and its comprising boards, commission, and offices. The Air Resources Board, Water Resources Control Board, and Department of Toxic Substances may be impacted if events specified in this bill occur and require regulatory processes or other workload increases to address.
350 East Bay
AFSCME, AFL-CIO
American Lung Association in California
American Rivers
American Whitewater
APEN
Audubon California
Audubon Society
Butte Environmental Council
Cal Outdoors
California Bicycle Coalition
California Coastal Protection Network
California Environmental Justice Alliance
California Labor Federation
California League of Conservation Voters
California Native Plant Society
California Releaf
California Sportfishing Protection Alliance
California State Association of Electrical Workers
California Water Impact Network
California Wilderness Coalition
Central Valley Air Quality Coalition
Clean Water Action
Coalition for Clean Air
Defenders of Wildlife
East Bay Municipal Utility District
Engineers & Scientists of California
Environment California
Environmental Defense Fund
Environmental Justice Coalition for Water
Environmental Working Group
Eric Garcetti, Mayor of the City of Los Angeles
Foothill Conservancy
Fossil Free California
Friends Committee on Legislation of California
Friends of Harbors, Beaches and Parks
Friends of the River
Heal the Bay
Hills For Everyone
IFPTE Local 20, AFL-CIO
Marin County Board of Supervisors
Marin County Council of Mayors and Councilmembers
Mono Lake Committee
Natural Resources Defense Council
PAN
Restore the Delta
Sacramento River Preservation Trust
SEIU California
Sierra Club
South Yuba River Citizens League
Surfrider Foundation
The Bay Institute
The Nature Conservancy
The Trust for Public Land
Voices for Progress
Western States Council of Sheet Metal Workers
Wholly H2O
Winnemem Wintu Tribe
OPPOSITION: (Verified 5/26/17)
Agricultural Council of California
American Coatings Association
California Association of Realtors
California Association of Winegrape Growers
California Building Industry Association
California Business Properties Association
California Cattlemen’s Association
California Chamber of Commerce
California Citrus Mutual
California Construction and Industrial Materials Association
California Cotton Ginners and Growers Association, Inc.
California Farm Bureau Federation
California Forestry Association
California Fresh Fruit Association
California League of Food Processors
California Manufacturers & Technology Association
California Paint Council
California Strawberry Commission
CAWA
Chemical Industry Council of California
Civil Justice Association of California
Family Business Association of Californi
Greater San Fernando Valley Chamber of Commerce
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Federation of Independent Business
Simi Valley Chamber of Commerce
South Valley Water Association
Southwest California Legislative Council
West Coast Lumber & Building Material Association
Western Agriculture Processors Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
ARGUMENTS IN SUPPORT: According to the author, SB 49 “retains protections afforded under the federal [environmental] laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, regardless of actions taken at the federal level.”
By doing so, SB 49 protects public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change and it preserves, protects, and enhances the environment and natural resources in California, including, but not limited to, the state’s national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value; and ensures that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
The author and supporters maintain that actual and threatened actions of the President and Congress require a state-level response to anti-environmental and worker safety initiatives from Washington. President Trump has clearly stated that it is his view that environmental law and regulation jeopardizes economic growth in the United States and has committed to and taken in the first two months in office numerous actions to roll-back environmental protections in the United States. A partial list of these actions developed by the Senate Environmental Quality Committee, includes:
- Called the concept of man-made climate change a “hoax created by and for the Chinese to make American manufacturing non-competitive.” A week after taking office, he purged the US EPA Web site of any mention of climate change. He also announced his intention to abandon the Paris climate accords, making the United States one of only four U.N. member nations not to sign on, joining Syria, Uzbekistan, and Nicaragua.
- Appointed Scott Pruitt the US EPA Administrator who has stated that he is not in favor of maintaining the US commitment to combat climate change.
- Withdrew the final determination on strict vehicle fuel-efficiency standards.
- Released his proposed budget with an elimination of 31% of the budget for the Environmental Protection Agency.
- Signed an executive order to undo the Waters of the United States Rule that extended federal protections to smaller rivers and streams.
- Signed an executive order entitled, “Reducing Regulation and Controlling Regulatory Costs.” The order intends to set an annual cap on the cost impact of new regulations, beginning in the current fiscal year 2017 with a cap of $0, meaning that agencies should repeal existing rules to offset the cost of adding any new ones. Further, it directs agencies to suggest repealing at least two existing rules for every new one proposed.
- Signed an executive order entitled, the “Energy Independence Executive Order,” rolling back Obama-era policies to curb planet-warming greenhouse gas emissions.
- Signed H.J. Res. 38 (Johnson, R–OH), nullifying the Department of Interior’s Stream Protection Rule that required companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests prior to mining activities.
- Signed H.J. Res. 41 (Huizenga, R–MI), nullifying a U.S. Securities and Exchange Commission disclosure rule that would require companies to disclose payments to foreign governments for the commercial development of oil, natural gas, or minerals.
- Placed comprehensive gag-orders on federal agency staff, including the Environmental Protection Agency, the Department of the Interior, and the Department of Energy.
- Ordered a federal hiring freeze, affecting all state agencies, including the hiring of new doctors by the Department of Veterans Affairs.
- Sought the names of civil servants who worked on issues related to climate change, women’s rights and reproductive health.
ARGUMENTS IN OPPOSITION: The California Chamber of Commerce and its coalition have labeled SB 49 as a “job killer,” stating “while we appreciate California’s concerns regarding the uncertainty at the federal level associated with the environmental laws identified in the bill, SB 49 is a premature, overbroad and vague response to things that could happen in the future while in the present creating substantial uncertainty for businesses in advance of any such potential changes and correspondingly greatly increases the potential for costly litigation.”
The opposition groups also state that if there is interest in preserving various federal environmental laws, they believe a targeted approach where state agencies respond to federal action on a case-by-case basis is more appropriate.
The opposition believes that the term “other federal laws” is broad and vague and has similar concerns about other terms in this bill. It also objects to the changes in law regarding private rights of action.
The California Farm Bureau Federation and others oppose the “no backsliding” provisions that apply to major federal environmental statutes because of the absence of a system for allowing revisions and improvements. They argue that new scientific developments should be allowed to inform future amendments to these federal laws. They is also oppose to the private right of action although they recognize that provision becomes operative only if the federal government rescinds the current citizen suit provisions in these laws.
5/27/17 17:40:35
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 49 (De León) - California Environmental, Public Health, and Workers Defense Act of 2017
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 25, 2017
Bill Summary:
SB 49 enacts the California Environmental, Public Health, and Workers Defense Act of 2017, which prohibits a state or local entity from enacting policies less stringent than the baseline federal standard, as defined.
Fiscal Impact:
- Up to $10.5 million ongoing (Fish and Game Preservation Fund and other special funds) to the Department of Fish and Wildlife (CDFW) for staff necessary to implement the bill. Actual costs will depend on, among other things, if and how many of the species currently listed under federal Endangered Species Act, the Commission must undergo a public process to relist under relist under the California Endangered Species Act.
- Unknown, potentially significant, cost (special fund) to the California Environmental Protection Agency, and its comprising boards, commission, and offices. The Air Resources Board, Water Resources Control Board, and Department of Toxic Substances may be impacted if events specified in the bill occur and require regulatory processes or other workload to address.
Author Amendments:
Ad coauthors and makes technical, nonsubstantive amendments.
-- END --
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 49 (De León) - California Environmental, Public Health, and Workers Defense Act of 2017
Version: February 22, 2017 | Policy Vote: N.R. & W. 7 - 2, E.Q. 5 - 2, JUD. 5 - 2 |
Urgency: No | Mandate: Yes |
Hearing Date: May 15, 2017 | Consultant: Narisha Bonakdar |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 49 enacts the California Environmental, Public Health, and Workers Defense Act of 2017, which prohibits a state or local entity from enacting policies less stringent than the baseline federal standard, as defined.
Fiscal Impact:
- Up to $10.5 million ongoing (Fish and Game Preservation Fund and other special funds) to the Department of Fish and Wildlife (CDFW) for staff necessary to implement the bill.
- Unknown, potentially significant, cost (special fund) to the California Environmental Protection Agency.
Background:
- California relies on several federal laws and their implementing regulations and remedies to protect the state’s public health, environment, and natural resources. These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures. The election of President Trump and many new members of Congress jeopardize the future of these law, and the state’s ability to maintain current environmental protections.
The federal Clean Air Act (FCAA). The FCAA is the comprehensive federal law that regulates air emissions from stationary and mobile sources. Among other things, this law authorizes EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants. The US EPA has set air quality standards for six common "criteria pollutants": particulate matter (also known as particle pollution), ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, and lead.
The federal Endangered Species Act (ESA). The ESA was enacted in 1973, to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the U.S. Fish and Wildlife Service and the Department’s National Marine Fisheries Service (NMFS). The FWS has primary responsibility for terrestrial and freshwater organisms, while NMFS is responsible for marine wildlife.
Under the ESA, species may be listed as either endangered (for species in danger of extinction throughout all or a significant portion of its range) or threatened (for species likely to become endangered within the foreseeable future). All species of plants and animals, except pest insects, are eligible for listing. For the purposes of the ESA, Congress defined species to include subspecies, varieties, and, for vertebrates, distinct population segments.
The Safe Drinking Water Act (SDWA). The SDWA was enacted in 1974 to protect public health by regulating the nation’s public drinking water supply. The act authorizes the United States Environmental Protection Agency (US EPA) to set national health based standards for drinking water to protect against both naturally-occurring and man-made contaminants.
SDWA applies to every public water system in the United States (currently more than 170,000 public water systems), and provides a framework in which the US EPA, states, tribes, water systems, and the public collaborate to ensure these public water systems provide safe drinking water.
The Clean Water Act .The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Under the CWA, the US EPA has implemented pollution control programs such as setting wastewater standards for industry and water quality standards for all contaminants in surface waters. The CWA also prohibits the discharge of any pollutant from a point source into navigable waters without a permit.
Proposed Law:
This bill enacts the California Environmental, Public Health, and Workers Defense Act of 2017. Specifically, the bill:
- Prohibits state or local agencies from amending or revising their rules and regulations implementing the FCAA, the ESA, the SDWA, and the CWA to be less stringent than the baseline federal standards, as defined.
- Requires specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species.
- Makes conforming changes to the Protect California Air Act of 2003.
- Authorizes a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
- Prohibits a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers’ rights or worker safety than standards established by federal law in existence as of January 1, 2016.
- Expressly authorizes a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agency’s action for compliance with, this measure.
- Requires state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
Related Legislation:
- SB 288 (Sher, Chapter 476, Statutes of 2003) was enacted to preserve the state’s right to uphold the FCAA standard.
Staff Comments:
- Purpose of Bill. SB 49 “protects public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change, preserves, protects, and enhances the environment and natural resources in California, including, but not limited to, the state’s national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value; and ensures that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.”
CDFW costs. CDFW indicates that it will need 61 new positions, including four new positions needed to support the Commission’s new workload, to meet the predicted increase in incidental take permitting. The associated cost of increased staffing is $10.5 in ongoing costs ($5.8 for half of fiscal year 2017-18). This bill does not provide funding for increased costs. Permit application fees set forth in Fish and Game Code section 2081.2 would not generate revenue sufficient to cover implementation costs.
If the number of scientific, educational and management permits, incidental take permits, and consistency determinations issued per year increases proportionally to the number of species listed under the CESA by this bill (an increase of 69 percent), the CDFW would collect between $0.41 million and $2.98 million annually. However, permits for scientific, educational, and management purposes are exempt from the permit application fees, and represent a significant unrecovered costs for the Department. This bill would result in a substantial increase.
The CDFW issues approximately 100 incidental take permits per year (i.e., 2000-2015: 1159 incidental take permits and 428 consistency determinations). Each incidental take permit requires approximately 60 hours of staff time, and each consistency determination requires approximately 30 hours of staff time. The CDFW expends approximately $50,000 per permit, which includes pre-permit negotiations, site visits, meetings, permit drafting, compliance monitoring, and mitigation land acquisition. Currently the California Endangered Species Act permitting program is funded by the General Fund, the Fish and Game Preservation Fund, and fees generated from permitting fees. The Native Plant Program is funded by the General Fund and the Fish and Game Preservation Fund.
The Fish and Game Commission will incur significant new workload processing approximately 137 new species listings. That will require the addition of two staff counsel positions and two Associate Government Program Analysts.
This bill would list an additional 16 marine species under the California Endangered Species Act, two of which are federal “Species in the Spotlight”: white abalone and loggerhead sea turtle. The Department’s Marine Region would require additional staff to accommodate management, regulatory, and permitting activities associated with these additional species. Some species would likely require immediate recovery planning actions (i.e., white abalone and sea otter).
If the number of scientific, educational and management permits, incidental take permits, and consistency determinations issued per year increases proportionally to the number of species listed under the California Endangered Species Act by this bill (an increase of 69 percent), the Department’s workload will increase substantially and additional staff will be required to meet this demand. Additional Regional permitting staff would be required to conduct permitting activities including pre-permit negotiations, site visits, meetings, permit drafting, compliance monitoring, and mitigation land acquisition. Additional Headquarters permitting staff would be required to review and issue state-wide incidental take permits and consistency determinations. Headquarters permitting staff would be responsible for issuing all native plant permits and for conducting status reviews every five years for listed plants. Two additional attorney positions would also be necessary to advise the Department’s Regional and Headquarters staff with increased permitting loads and other legal issues generated as a result of the bill.
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: SB 49 (Author:De León)
Version: February 22, 2017
Hearing Date: April 25, 2017
Fiscal: Yes
Urgency: No
Consultant: TSG
SUBJECT
California Environmental, Public Health, and Workers Defense Act of 2017
DESCRIPTION
This bill would establish certain minimum federal environmental, public health, and labor standards as baselines. It would prohibit the corresponding California standards from falling below those baselines. The baselines would be the federal standards applicable as of January 1, 2016, or January 1, 2017, whichever is more stringent. This bill would expressly authorize private citizens to petition the courts to make state and local government agencies comply with its terms. This bill would also create a state private right of action whereby private citizens could enforce the state standards, in the event that new federal standards fall below the baseline, or if the federal private right of action to enforce the federal standards is repealed. Finally, this bill would require state agencies to report periodically to the Legislature on compliance.
BACKGROUND
Many of California’s laws and programs for enforcing environmental, public health, and labor protections interrelate closely with the corresponding federal standards. For example, the State Air Resources Board, air quality management districts, and air pollution control districts in California formulate and adopt the plans that implement the federal Clean Air Act on the local level. Based on these plans, state and local agencies issue permits governing the emission of pollutants into the air. Accordingly, if the federal government lowers the standards set forth in its laws, the decrease could carry over into how these programs are implemented in California as well.
In addition, existing federal law provides a number of legal mechanisms for enforcing the federal standards. If the federal government lowers its standards or abolishes the legal enforcement mechanisms, California’s environmental, public health, and labor protections will suffer accordingly.
President Trump and the Congress inaugurated in January of this year have signaled their intent, and in some instance have begun, to roll back many of the existing federal protections in these areas. (For a list of examples, see Sen. Environmental Quality Com., Analysis of SB 49 (2017-2018 Reg. Sess.) as amended Feb. 22, 2017.) By pegging California’s environmental, public health, and labor protections to the most stringent recent federal standards, and by triggering state legal enforcement mechanisms in the event that federal ones are abolished, this bill would ensure that California’s standards are inoculated against backsliding at the federal level.
CHANGES TO EXISTING LAW
1. Existing federal law:
- regulates air emissions from stationary and mobile sources through the establishment of National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants (Federal Clean Air Act, Pub.L. No. 88-206 (Dec. 17, 1963) 77 Stat. 392, 42 U.S.C. Sec. 7401 et seq.);
- regulates discharge of pollutants into the waters of the United States and regulates quality standards for surface waters. Makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. Provides that the National Pollutant Discharge Elimination System (NPDES) permit program controls discharges (Clean Water Act, Pub.L. No. 92-500 (Oct. 18, 1972) 86 Stat. 816.);
- regulates the nation’s public drinking water supply, and requires the U.S. Environmental Protection Agency to establish mandatory nationwide drinking water standards. Requires water systems to monitor public water supplies to ensure drinking water standards are met and report to consumers if the standards are not met (Safe Drinking Water Act, Pub.L. No. 93-523 (Dec. 16, 1974) 88 Stat. 1660, 42 U.S.C. Sec. 300f.); and
- provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. (Endangered Species Act, Pub.L. No. 93-203 (Dec. 27, 1973) 87 Stat. 884, 16 U.S.C. 1531 et seq.)
Existing federal law authorizes states, under each of the statutes above, to act either as delegates for implementing and enforcing the federal acts, as long as the state’s laws are at least as stringent as or more stringent than the federal act or to enact their own similar state statute.
2. Existing California law:
- prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those federal rules or regulations that existed on December 30, 2002, except under certain circumstances (Protect California Air Act of 2003, Ch. 476, Stats. of 2003.);
- establishes a comprehensive program to reduce greenhouse gas emissions from all sources throughout the state to combat climate change (California Global Warming Solutions Act of 2006, Ch. 488, Stats. of 2006.);
- regulates the discharge of pollutants into the waters of the state (Porter-Cologne Water Quality Control Act, Wat. Code Secs. 13000-16104.);
- establishes standards for drinking water and regulates drinking water systems (California Safe Drinking Water Act, Health and Saf. Code Secs. 116270 et seq.); and
- requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and generally prohibits the taking of those species. (California Endangered Species Act, Fish and G. Code Secs. 2050-2069.)
3. This bill would establish as baseline standards the authorizations, policies, objectives, rules, requirements, and standards contained in federal laws or federal regulations relating to environmental protection, natural resources or public health in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent.
This bill would prohibit state or local agencies from amending or revising their rules and regulations to be less stringent than those baseline standards while permitting those agencies to adopt more stringent standards.
4. This bill would direct various state and local agencies with authority over standards and programs relating to air quality, water quality, and endangered species, to take specified steps to ensure no backsliding from the baseline standards.
5. This bill would prohibit state agencies from amending or revising their rules or regulations relating to workers’ rights or worker safety in a manner that would make them less stringent than the standards established pursuant to federal law in existence as of January 1, 2016, while permitting the adoption of more stringent standards.
6. This bill would, in the contexts of air pollution, water pollution, drinking water quality, and endangered species laws and regulations, permit private persons to bring lawsuits in the public interest to enforce the standards or actions required by this bill, if the both of the following are satisfied:
- the private action is commenced more than 60 days from the date that the person gave notice of an alleged violation that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator; and
- neither the Attorney General, a district attorney, a city attorney nor a prosecutor commenced and is diligently prosecuting an action against the violation.
This bill would trigger these state private rights of action only if:
- the respective federal standard or requirements are revised to be less stringent than the baseline standards; or
- the respective federal citizen suit enforcement mechanism is repealed.
7. This bill would provide that, if a state or local agency has violated the standards or requirements established by this bill, compliance can be sought through the presentation of a petition for writ of mandate to the appropriate court of jurisdiction.
8. This bill would allow a court to award attorney’s fees, expert fees, and court costs to a party prevailing in a legal case brought under this bill.
9. This bill would require California air quality and emissions regulators to operate their programs based on the federal standards and requirements in place on January 1, 2016, or January 1, 2017, whichever is more stringent.
10. This bill would direct every state agency to undertake all feasible steps to implement and enforce the provisions of this bill and to submit biannual reports to the Legislature describing its compliance.
COMMENT
1. Stated need for the bill
According to the author, as set forth in the findings and declarations portion of the bill:
For over four decades, California and its residents have relied on federal laws… along with their implementing regulations and remedies, to protect our state’s public health, environment, and natural resources.
These federal laws establish standards that serve as the baseline level of public health and environmental protection, while expressly authorizing states like California to adopt more protective measures.
Beginning in 2017, a new presidential administration and United States Congress will be in control of one party that has signaled a series of direct challenges to these federal laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
It is therefore necessary for the Legislature to enact legislation that will ensure continued protections for the environment, natural resources, and public health in the state even if… federal laws… are undermined, amended, or repealed.
The purpose of this [bill] is to do all of the following:
Retain protections afforded under the federal laws… and regulations in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, regardless of actions taken at the federal level.
Protect public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change.
Preserve, protect, and enhance the environment and natural resources in California, including, but not limited to, the state’s national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value.
Ensure that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.
Ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.
In support, a group of organizations “representing hundreds of thousands of Californians,” writes:
[I]n the last couple months, we have seen numerous bills and policies introduced that are designed to undermine these basic protections and threaten the continued health and vitality of our natural surroundings and all it sustains.
While California has long been a leader in protecting our natural resources, many of our environmental protections are built on a foundation of federal standards…
SB 49 adopt[s] common sense measures to allow California to move forward on a path to economic and environmental sustainability, and reject the false choice that economic progress must come at the expense of worker safety, public health, and the environment.
In further support, the California Environmental Justice Alliance writes:
Our members work in low-income communities and communities of color highly impacted by pollution and socioeconomic stressors.
[We] along with other environmental organizations have been alarmed by the attacks flowing from Washington, DC, on the country’s most fundamental and necessary environmental protections. Clean air, clean water, access to public lands, thriving ecosystems, healthy native species, and safe drinking water are the birthright of all Americans…
In further support, Audubon California writes:
California has been a leader in preserving and protecting our most valuable natural resources; everything from our landscapes to our diverse animal species. However over the last few months we have seen direct Federal challenges to many environmental protections we enjoy in California. Those direct challenges, we believe, warrant an equally direct response to pledge our continued protections for the environment, natural resources and public health in the state.
In further support, Defenders of Wildlife writes:
The Republican Congressional leadership and President Trump made little secret of their disdain and dislike for our nation’s environmental law and regulations, and the science and scientists supporting those rules. In fact, just a few weeks ago, Congress launched an aggressive attack to repeal rules that protect our air, water, and public lands, including the U.S. Senate holding a hearing to discuss the need to “modernize” the federal Endangered Species Act [ESA]. President Trump has appointed individuals with long track records opposing environmental protection to head up the very agencies they have reviled and has issued a string of Executive Orders rolling back important environmental regulations…
In its 44-year history, the ESA has a 99 percent success rate in preventing extinction, preventing more than 227 species from going extinct. It has also resulted in the recovery of some of our most iconic wildlife.. California has a lot to lose if the current federal leaders are successful. According to NatureServe, California is the most biologically diverse state in the nation and has the highest number of endemic species, which are species found only in a specific place. Yet California also is home to the third highest number of extinct species and the second highest for percentage of species at risk. In addition, federal public lands – areas with concentrated wildlife – encompass more than 45.8% of the state. Thus, rollback in protections for wildlife, habitat and public lands would have a profound and costly impact on California.
2. Expressed concerns about the bill
In opposition to the bill, the California Chamber of Commerce and listed organizations write:
…SB 49 is a premature, overbroad, and vague response to actions that could be undertaken in the future (with respect to the laws identified in the bill) while in the present creating substantial uncertainty for businesses in advance of any such potential changes, and correspondingly greatly increasing the potential for costly litigation…
If there is interest in preserving various federal environmental laws, we believe a targeted approach where state agencies respond to federal action on a case-by-case basis is more appropriate...
Some of our questions/concerns include:
- The reference to “other federal laws” is problematic because it creates confusion by simply being defined as laws not specifically identified that relate to “environmental protection, natural resources, or public health.” It would be left to the courts to interpret the broad and vague language when litigation arises, which would leave businesses in limbo and subject to a myriad of nonmeritorious lawsuits while such litigation makes its way through the court system…
- The terms “federal standards,” “stringent,” and “backsliding” are also vague and ambiguous.
- The overbreadth of the bill further appears to run afoul of the constitutional “single-subject rule” principle.
- SB 49 further contains vague and uncertain language as to when the private rights of action would be triggered as well…Who determines whether the standard or requirement is “less stringent” and what does that mean? Would a change in any standard or requirement open the door to a private right of action as to all standards or requirements? Because the word “either” is used and assuming no repeal of the citizen suit provision occurs, can a business be sued under the California private right of action and the federal citizen suit provision for the same violation by potentially different plaintiffs?...
Without clarification, the courts would have to grapple with these questions, which will result in many pending cases sitting on court dockets for years without any certainty for businesses while they struggle with increased litigation costs.
With respect to concerns about the bill’s potential effect on jobs and the economy, the bill’s author responds that:
SB 49 simply puts in place as a matter of state law the requirements that exist under federal law that are proposed to be rolled back by the new administration. Businesses have lived with these standards for decades and there has been no discernible negative effect on jobs or the economy. Quite the contrary: our strong environmental and public health standards have led to a healthier economy with fewer sick days from air pollution, fewer kids with asthma, and fewer emergency room visits by our elderly.
Regarding the assertion that SB 49 will create more litigation, the bill’s author responds:
Under current law, a violation of federal environmental law can be enforced by a private right of action. SB 49 simply ensures that if a federal law is rolled back, the same right of action remains. So the bill doesn’t create a new right; rather, it ensures there is no weakening of existing rights.
3. Legal mechanisms for enforcing the provisions of this bill
This bill contains three legal mechanisms that are designed to enhance compliance with, and enforcement of, the bill’s purpose: (a) citizen lawsuits; (b) petitions for writs of mandate; and (c) fee shifting provisions.
- Private lawsuits to enforce government standards (“citizen suits”)
Citizen suits are civil legal actions brought by private individuals or public interest organizations in order to enforce the laws. In effect, the private individual or public interest organization steps into the legal shoes that an attorney general would ordinarily occupy: the role of ensuring that laws are enforced when the violation effects the broader public, not just a few individuals. The Legislature may enact provisions authorizing citizen suits in situations in which it recognizes that the government alone would lack sufficient resources to respond to every violation. Citizen suits can also be effective as a tool to make sure laws are enforced where a public agency could be influenced by political pressure not to bring enforcement actions. (Adler, Stand or Deliver: Citizen Suits, Standing, and Environmental Protection (2001) 12 Duke Environmental Law & Policy Forum 39, p. 44.)
This bill would use citizen suits as a tool for ensuring that the most stringent recent federal environmental standards continue to be enforced in California going forward, regardless of federal backsliding. To accomplish this, the bill contains trigger provisions authorizing state citizen suits in the areas of air pollution, water pollution, safe drinking water, and endangered species protection in the event that either federal standards are loosened or the federal provisions authorizing citizens suits are repealed. Thus, if federal standards slip, or the possibility of private enforcement of the federal standards disappears, California law will automatically kick in to ensure that, at least as to this state, the higher standard will still govern and private individuals and public interest organizations will still be able to enforce it.
- Petitions for writ of mandate
Under existing law, any time a state agency or public officer fails to carry out a duty under the law, people can seek a court order requiring compliance with that duty. (Code Civ. Proc. Secs. 1085 and 1094.5.) Such a court order is known in legalese as a writ of mandate or mandamus. To further ensure that California state agencies and public officials maintain the environmental standards required by this bill, this bill expressly authorizes people to petition the courts for a writ of mandate if they think that the state agency or official is not upholding the standard.
- Fee-shifting provisions
Under the so-called “American Rule,” each party to a lawsuit must bear its own attorney’s fees, regardless of the outcome. (Code of Civil Procedure Section 1021; Musaelian v. Adams (2009) 45 Cal.4th 512.) However, the American Rule can be altered by contract or statute. (Id.) Such changes to the American Rule are known as “fee-shifting provisions.”
Fee-shifting provisions may be one-way or two-way. A two-way fee shifting provision entitles the winning party to have its attorney’s fees covered by the losing party. A one-way fee-shifting provision only allows one side in a case, usually the plaintiff, to recover attorney’s fees, if that side prevails. One-way fee shifting provisions are generally used to help litigants obtain counsel where they might not otherwise be able to afford one. (Flannery v. Prentice (2001) 26 Cal.4th 572.) One-way fee-shifting provisions can also be employed to encourage private enforcement of a public policy aim. (See Krent, Explaining One Way Fee Shifting (November 1993) 79 Va. L. Rev. 2039, 2044.)
Fee-shifting statutes are effective “[w]here private actions serve to effectuate important public policy objectives and where private plaintiffs cannot ordinarily be expected to bring such actions on their own.” (Percival and Miller, The Role of Attorney Fee Shifting in Public Interest Litigation (1984) Law and Contemporary Problems, p.241.) The environmental law context presents a quintessential example of this dynamic: the impact of pollution from a single violation may be spread across many people, reducing the incentive any one individual has to take on the expense of litigating the matter. By holding out the prospect that the fees and costs associated with litigation will be borne by the polluter, rather than the plaintiff, fee-shifting provisions increase the odds that someone will take on the case.
This bill would deploy one way fee-shifting provisions to help incentivize private citizens or public interest organizations to help enforce its provisions relating to emissions standards, water pollution, drinking water standards, and the protection of endangered species. These fee-shifting provisions would apply both to ordinary civil actions as well as mandamus proceedings. Not only would such individuals and entities be able to bring suit to enforce the standards required by this bill, if they prevail, they would be able to recover attorney’s fees, expert fees, and court costs.
Support: American Federation of State, County and Municipal Employees, AFL-CIO; American Lung Association in California; American Rivers; American Whitewater; APEN; Audubon California; Audubon Society; The Bay Institute; Butte Environmental Council; Cal Outdoors; California Bicycle Coalition; California Coastal Protection Network; California Environmental Justice Alliance; California Labor Federation; California League of Conservation Voters; California Native Plant Society, California Releaf; California Sportfishing Protection Alliance; California State Association of Electrical Workers; California Water Impact Network; California Wilderness Coalition; Central Valley Air Quality Coalition; Clean Water Action; Coalition for Clean Air; Defenders of Wildlife; East Bay Municipal Utility District; Engineers & Scientists of California, IFPTE Local 20, AFL-CIO; Environment California; Environmental Defense Fund; Environmental Working Group; Environmental Justice Coalition for Water; Foothill Conservancy; Fossil Free California; Friends Committee on Legislation of California; Friends of Harbors, Beaches and Parks; Friends of the River; Eric Garcetti, Mayor of the City of Los Angeles; Heal the Bay; Hills For Everyone; Marin County Board of Supervisors; Marin County Council of Mayors and Councilmembers; Mono Lake Committee; Natural Resources Defense Council; The Nature Conservancy; PAN; Restore the Delta; Sacramento River Preservation Trust; SEIU California; Sierra Club; South Yuba River Citizens League; Surfrider Foundation; The Trust For Public Land; Voices for Progress; Western States Council of Sheet Metal Workers; Wholly H2O; Winnemem Wintu Tribe; 350 East Bay
Opposition: Agricultural Council of California; American Coatings Association; California Association of Realtors; California Association of Winegrape Growers; California Building Industry Association; California Business Properties Association; California Cattlemen’s Association; California Chamber of Commerce; California Citrus Mutual; California Construction and Industrial Materials Association; California Cotton Ginners and Growers Association, Inc.; California Farm Bureau Federation; California Forestry Association; California Fresh Fruit Association; California League of Food Processors; California Manufacturers & Technology Association; California Paint Council; California Strawberry Commission; CAWA – Representing the Automotive Parts Industry; Chemical Industry Council of California; Civil Justice Association of California; Family Business Association of California; Greater San Fernando Valley Chamber of Commerce; Metal Finishing Association of Northern California; Metal Finishing Association of Southern California; National Federation of Independent Business; Simi Valley Chamber of Commerce; South Valley Water Association; Southwest California Legislative Council; West Coast Lumber & Building Material Association; Western Agriculture Processors Association; Western Growers Association; Western Plant Health Association; Western States Petroleum Association
HISTORY
Source: Author
Related Pending Legislation:
SB 50 (Allen, 2017) would declare any conveyance of federal public land in California void unless the State Lands Commission was provided with a right of first refusal or the option to arrange for transfer of the property to a third party. SB 50 would also prohibit county recorders from recording documentation evidencing such a conveyance unless it were accompanied by a certificate from the State Lands Commission indicating compliance with the statute. SB 50 is currently pending in the Senate Appropriations Committee.
SB 51 (Jackson, 2017) would prohibit state professional licensing entities from taking disciplinary action including disbarment, suspension, loss of credential, registration, or other professional privilege against a public employee or employee of a government contractor, subcontractor, or grantee of that person reports improper governmental activity or communicates the results of, or information about, scientific or technical research in a scientific or a public forum or with the media. This bill would also require the Secretary for Environmental Protection to ensure that all scientific information and other data otherwise in the public domain is protected against censorship or destruction by the federal government.
Prior Legislation: SB 288 (Sher, Chapter 476, Statutes of 2003) was a response to federal action on December 31, 2002, to reduce standards associated with the Federal Clean Air Act (FCAA). SB 288 established the Protect California Air Act of 2003, prohibiting air quality management districts in California from amending or revising FCAA related rules or regulations to be less stringent than those federal rules or regulations that existed on December 30, 2002, except under certain circumstances.
Prior Vote:
Senate Environmental Quality Committee (Ayes 5, Noes 2)
Senate Natural Resources and Water Committee (Ayes 7, Noes 2)
**************
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2017 - 2018 Regular
Bill No: SB 49
Author: | De León and Stern | ||
Version: | 2/22/2017 | Hearing Date: | 4/5/2017 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Rachel Machi Wagoner | ||
SUBJECT: California Environmental, Public Health, and Workers Defense Act of 2017
ANALYSIS:
Existing federal law:
- Under the Clean Air Act (FCAA) regulates air emissions from stationary and mobile sources. Among other things, this law authorizes the United States Environmental Protection Agency (US EPA) to establish National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants.
- Under the Clean Water Act (CWA) regulates discharges of pollutants into the waters of the United States and regulates quality standards for surface waters. CWA makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained and provides that the National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. (Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.)
- Under the Safe Drinking Water Act (SDWA) regulates the nation’s public drinking water supply, and requires the US EPA to establish mandatory nationwide drinking water standards. It also requires water systems to monitor public water supplies to ensure drinking water standards are met and report to consumers if the standards are not met.
- Under the Endangered Species Act (ESA) provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend.
Each of these statutes authorizes states to act either as delegates for implementing and enforcing the federal acts, as long as the state’s laws are at least as stringent as or more stringent than the federal act or to enact their own similar state statute. California’s laws often preceded the federal acts and provided a model for the federal government to follow.
Existing California law:
- Under the Protect California Air Act of 2003 prohibits air quality management districts and air pollution control districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances.
- The California Global Warming Solutions Act of 2006 (AB 32), establishes a comprehensive program to reduce greenhouse gas emissions from all sources throughout the state to combat climate change.
- Under the Porter-Cologne Water Quality Control Act regulates the discharge of pollutants into the waters of the state.
- Under the California Safe Drinking Water Act establishes standards for drinking water and regulates drinking water systems.
- Under the California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and generally prohibits the taking of those species.
This bill:
- Prohibits state or local agencies from amending or revising their rules and regulations implementing the above state laws to be less stringent than the baseline federal standards, as defined.
- Requires specified agencies to take prescribed actions to maintain and enforce certain requirements and standards pertaining to air, water, and protected species.
- Makes conforming changes to the Protect California Air Act of 2003.
- Authorizes a person acting in the public interest to bring an action to enforce certain standards and requirements implementing the above-mentioned state laws if specified conditions are satisfied. The bill would make the operation of this authorization contingent on the occurrence of certain events.
- Prohibits a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers’ rights or worker safety than standards established by federal law in existence as of January 1, 2016.
- Expressly authorizes a person to petition a court for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agency’s action for compliance with, this measure.
- Requires state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
Background
- California as an Environmental Leader. California is the most populous state in the union with a population of nearly 40 million people. It is the third largest state by area at 163,696 square miles. It is the 6th largest economy on the planet, boasting high-tech industries, agriculture, energy, manufacturing, film, and finance and trade –just to name a few industries. California’s geographic, population, and economic size make California’s impact global in nature.
The state’s vast size has also brought an enormous impact on the environment. California has long struggled with some of the most polluted air in the country, discharge of pollution into our water and soil has led to contamination that has degraded the environment and public health.
The responsibility to correct damage, preserve and protect the environment is a key tenant of what it is to be Californian. It is ever present in the consciousness of every Californian that the state’s beaches, parks, farms and cities lose their beneficial nature if contaminated. Degradation of our environment makes it impossible to continue to succeed in our way of life.
California began to clean the air, water and soil, in many cases, before the federal government, recognizing the importance of these types of control’s for the citizenry of California and the imperative for the state’s economy.
California’s laws and policy have served as a national model for other states as well as the federal government. For instance, California had developed clean air standards prior to the FCAA, which is why California has its waiver provisions within the act.
California’s environmental leadership drives technology and scientific innovation as a key part of the state’s economy. The solar and other clean energy technologies have developed because of California’s strong policies on renewable energy and environmental sustainability. Consistency in the state’s ability to enforce its policy and statute is paramount for these industries to continue to innovate.
- President Trump – Threat to Environmental Law and Security. President Trump has clearly stated that it is his view that environmental law and regulation jeopardizes economic growth in the United States and has committed to and taken in the first two months in office numerous actions to roll-back environmental protections in the United States:
- Called the concept of man-made climate change a “hoax created by and for the Chinese to make American manufacturing non-competitive.” A week after taking office, purged the US EPA of any mention of climate change.
- Appointed Scott Pruitt the US EPA Administrator. Recently released emails from his office as Attorney General of Oklahoma, detail his on-going interactions with oil industry executives to combat the environmental law and regulation at the federal level. Additionally he has stated that he is not in favor of maintaining the US commitment to combat climate change. Administrator Pruitt is quoted as saying, ““I think that measuring with precision human activity on the climate is something very challenging to do, and there’s tremendous disagreement about the degree of impact, so, no, I would not agree that it’s a primary contributor to the global warming that we see.”
- Withdrew the final determination on strict vehicle fuel-efficiency standards.
- Released his proposed budget with an elimination of 31% of the budget for the Environmental Protection Agency.
- Signed an executive order to undo the Waters of the United States Rule that extended federal protections to smaller rivers and streams.
- Signed an executive order entitled, “Reducing Regulation and Controlling Regulatory Costs.” The order intends to set an annual cap on the cost impact of new regulations, beginning in the current fiscal year 2017 with a cap of $0, meaning that agencies should repeal existing rules to offset the cost of adding any new ones. Further, it directs agencies to suggest repealing at least two existing rules for every new one proposed.
- Signed an executive order entitled, the “Energy Independence Executive Order,” rolling back Obama-era policies to curb planet-warming greenhouse gas emissions. A senior White House official stated, ““We have a different view about how you should address climate policy in the U.S., and we’re going in a different direction.”
- Signed H.J. Res. 38 (Johnson, R–OH), nullifying the Department of Interior’s Stream Protection Rule. The Stream Protection Rule targets coal-mining industry practices to protect waterways by requiring companies to avoid mining practices that permanently pollute streams, destroy drinking water sources, increase flood risk, and threaten forests by requiring companies to restore streams and return mined areas to the uses they were capable of supporting prior to mining activities, and to replant the areas with native trees and vegetation, unless that would conflict with the implemented land use.
- Signed H.J. Res. 41 (Huizenga, R–MI), nullifying a U.S. Securities and Exchange Commission disclosure rule that would require companies to disclose payments to foreign governments for the commercial development of oil, natural gas, or minerals.
- Placed comprehensive gag-orders on federal agency staff, including the Environmental Protection Agency, the Department of the Interior, and the Department of Energy.
- Ordered a federal hiring freeze, affecting all state agencies, including the hiring of new doctors by the Department of Veterans Affairs.
- Sought the names of civil servants who worked on issues related to climate change, women’s rights and reproductive health.
- Announced his intention to abandon the Paris climate accords, making the United States one of only four U.N. member nations not to sign on, joining Syria, Uzbekistan, and Nicaragua.
- A Precedented Action to Preserve State Rights for Environmental Protection. SB 288 (Sher, Chapter 476, Statutes of 2003) was enacted to preserve the state’s right to uphold the FCAA standard.
FCAA required each major new and modified source of air pollution to undergo “new source review” to ensure that facilities install the best available control equipment, obtain offsets for any new emissions, and comply with any other requirement to ensure that the new and modified sources do not adversely affect air quality. On December 31, 2002, the Administrator of US EPA promulgated regulations implementing the new source review program that changed that program.
SB 288 established the Protect California Air Act of 2003, which prohibits air quality management districts from amending or revising their new source review rules or regulations to be less stringent than those rules or regulations that existed on December 30, 2002, except under certain circumstances.
Much like SB 49, the purpose of SB 288 was to maintain the requirement to attain and maintain ambient air quality standards by the earliest practicable date, to protect public health and welfare from the adverse effects of air pollution, and to ensure that economic growth will occur in a manner consistent with the preservation of existing clean air resources.
Comments
- Purpose of Bill. According to the author, SB 49 “retains protections afforded under the federal [environmental] laws in existence as of January 1, 2016, or January 1, 2017, whichever is more stringent, regardless of actions taken at the federal level.”
By doing so, SB 49 “protects public health and welfare from any actual or potential adverse effect that reasonably may be anticipated to occur from pollution, including the effects of climate change, preserves, protects, and enhances the environment and natural resources in California, including, but not limited to, the state’s national parks, national wilderness areas, national monuments, national seashores, and other areas with special national or regional natural, recreational, scenic, or historic value; and ensures that economic growth will occur in a manner consistent with the protection of public health and the environment and preservation of existing natural resources.”
SB 49 “will ensure that any decision made by a public agency that may adversely impact public health, the environment, or natural resources is made only after careful evaluation of all the consequences of that decision and after adequate procedural opportunities for informed public participation in the decisionmaking process.”
TRIPLE REFERRAL:
This measure passed the Senate Natural Resources and Water Committee on March 14, 2017 on a vote of 7-2. If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee.
Related/Prior Legislation
This bill is one in a package of bills aimed at insulating the state from rollbacks in federal environmental regulations and public health protections, including SB 51 (Jackson), which prohibits a board from taking disciplinary action, including disbarment, suspension, loss of credential, registration, or other professional privilege against a public employee or employee of a government contractor, subcontractor, or grantee if that person reports improper governmental activity or communicates the results of, or information about, scientific or technical research in a scientific or a public forum or with the media and requires the Secretary for Environmental Protection to ensure that all scientific information and other data otherwise in the public domain is protected against censorship or destruction by the federal government, and SB 50 (Allen) which establishes a new state policy to discourage conveyances of federal lands to private developers for resource extraction and directs the State Lands Commission, which oversees much of the federal lands in the state, to establish a right of first refusal by the state of any federal lands proposed for sale or conveyance to other parties. (Status: SB 51 is currently pending in the Senate Environmental Quality Committee and SB 50 is currently pending in the Senate Judiciary Committee to be heard on April 4.)
SOURCE:
Author
SUPPORT:
American Lung Association in California
American Rivers
American Whitewater
APEN
Audubon California
Butte Environmental Council
California Bicycle Coalition
California Coastal Protection Network
California Coastkeeper Alliance
California Labor Federation
California League of Conservation Voters
California Native Plant Society
California Outdoors
California Sportsfishing Protection Alliance
California Water Impact Network
California Wilderness Coalition
Central California Asthma Collaborative
City of Los Angeles, Mayor Eric Garcetti
Clean Water Action
Coalition for Clean Air
Defenders of Wildlife
Environment California
Environmental Defense Fund
Environmental Working Group
Foothill Conservancy
Fossil Free California
Friends Committee on Legislation of California
Friends of Harbors, Beaches and Parks
Friends of the Earth
Friends of the River
Heal the Bay
Hills For Everyone
Humane Society of United States
Marin County Council of Mayors and Councilmembers
Medical Advocates for Healthy Air
Mono Lake Committee
Natural Resources Defense Council
PAN
Preservation Trust
Releaf
Restore the Delta
Sierra Club
South Yuba River Citizens League
State Building and Construction Trades Council
Surfrider Foundation
The Bay Institute
The Environmental Justice Coalition for Water
The Nature Conservancy
The Trust For Public Land
Voices for Progress
Wholly H2O
Winnemem Wintu Tribe
350 East Bay
350 Sacramento
1 individual
OPPOSITION:
California Association of Realtors
California Association of Winegrape Growers
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Construction and Industrial Materials Association
California Council for Environmental and Economic Balance
California Farm Bureau Federation
California Forestry Association
California League of Food Processors
California Manufacturers & Technology Association
CAWA
Chemical Industry Council of California
Family Business Association of California
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Federation of Independent Business
Southwest California Legislative Council
West Coast Lumber and Building Material Association
Western Growers Association
Western Plant Health Association
Western States Petroleum Association
ARGUMENTS IN SUPPORT:
Supporters argue, “SB 49 safeguards existing federal protections by establishing strong, enforceable state analogs. These baseline federal protections have fostered California’s economic growth and progress for decades by protecting communities from public health crises, sustaining a vibrant recreation, tourism and hospitality economy and driving modern innovation of clean technology. As such, retaining these federal safeguards is essential if California wishes to remain a global environmental and economic leader.
In the early months of the Trump Administration, we have seen numerous efforts to undermine these basic protections.”
ARGUMENTS IN OPPOSITION:
The California Chamber of Commerce and its coalition have labeled SB 49 as a “job killer,” stating “while we appreciate California’s concerns regarding the uncertainty at the federal level associated with the environmental laws identified in the bill, SB 49 is a premature, overbroad and vague response to things that could happen in the future while in the present creating substantial uncertainty for businesses in advance of any such potential changes and correspondingly greatly increases the potential for costly litigation.
-- END --
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Robert Hertzberg, Chair
2017 - 2018 Regular
Bill No: SB 49 Hearing Date: March 14, 2017
Author: | |||
Version: |
| ||
Urgency: | Fiscal: | ||
Consultant: | |||
Subject: California Environmental, Public Health, and Workers Defense Act of 2017
BACKGROUND AND EXISTING LAW
Among the most important federal environmental laws are the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Endangered Species Act. While there are other federal environmental laws, including the National Environmental Policy Act, these four statutes are considered primary and bedrock environmental statutes.
California has similar statutes that, in some cases, preceded these federal laws. In other situations, California has regulations that apply to provisions covered by federal laws. One important example is the underground injection well regulations that implement provisions of the Safe Drinking Water Act. California has been delegated authority for this program and is the primary regulator. This has been a topic of significant interest in the Legislature as part of the oversight functions of the Division of Oil, Gas, and Geothermal Resources within the Department of Conservation.
Note: This bill has been referred to this committee, Environmental Quality, and Judiciary. This committee’s jurisdiction extends only to the endangered species and underground injection well aspects of the bill.
Existing law includes the California Endangered Species Act (CESA) which is an analog to the federal endangered species act. CESA provides a mechanism for the Department of Fish and Wildlife (CDFW) to issue “incidental take permits” under state law, or to concur in a federal incidental take permit through what is termed a “consistency determination” that avoids the need of a project applicant to apply twice for the same take authority under both acts.
The Safe Drinking Water Act (SDWA) was originally passed by the US Congress in 1974 in order to protect public health by regulating the public drinking water supply nationwide. One of the motivations underlying the passage of the SDWA was to set national standards for wells that have the potential to impact underground aquifers suitable to provide drinking water. The Underground Injection Control (UIC) Program was subsequently promulgated (see Title 40, Code of Federal Regulations, parts 144 – 148) by the US Environmental Protection Agency (US EPA). Of particular note to this Committee are the Class II UIC wells which are oil and gas injection and disposal wells.
Class II UIC wells are an integral part of oil and gas development here in California. According to the Division of Oil, Gas and Geothermal Resources (DOGGR), approximately 60% of all oil produced in California is due to the use of enhanced oil recovery processes facilitated by UIC wells. A substantial portion of oil and gas field-produced waste water is also disposed of in Class II wells. There are on the order of 55,000 new, active or idle Class II UIC wells in California.
In 1981, the then-Division of Oil and Gas sought primacy to implement the UIC Class II well program in the state from the US EPA under section 1425 of the SDWA which allowed states with oil and gas regulatory programs that “effectively protect” drinking water sources to continue using their existing programs. Approval was granted in 1982. DOGGR and the State Water Resources Control Board have a Memorandum of Understanding signed in 1988 delineating their respective responsibilities and coordination related to oil and gas production and water.
In the last two years, DOGGR, the Water Boards and the US EPA have been working closely together to address the thousands of improperly permitted Class II UIC wells identified in the state. These improperly permitted wells inject into aquifers that were not properly exempted from the SDWA through the appropriate state and federal process. It is important to note that the state’s standards for water quality for these aquifers also depend upon federal regulatory language underpinned by the SDWA (see State Water Resources Control Board Resolution 88-63 and 40 CFR 146.4). The SDWA and its accompanying regulations are therefore fundamental to and constitute minimum standards for the state’s oil and gas program.
PROPOSED LAW
This bill proposes to designate as “baseline federal standards” the laws mentioned above and the implementing regulations to those laws as they exist as of 1/1/16 or 1/1/17, whichever are more stringent. The bill also establishes baseline federal standards for all other, but specifically identified, federal laws that relate to environmental protection, natural resources, or public health. Generally, the bill requires state agencies to adhere to the baseline federal standards regardless of any subsequent actions of Congress or the president.
California agencies would continue be able to establish rules and regulations that are more stringent than the baseline federal standards.
Two of those enumerated laws affect programs within the jurisdiction of this committee: endangered species protections and the underground injection well program. Those aspects of the bill will be discussed. In the event the federal endangered species act is amended to weaken existing law, this bill provides a private right of action that will be evaluated by the Judiciary Committee.
Endangered Species.
The bill does the following:
- Provides that federally listed threatened or endangered species that are not currently listed under the California endangered Species Act (CESA) would be designated as threatened or endangered under CESA if and when there are backsliding amendments adopted to the federal law.
- For incidental take permits and consistency determinations, as described above, the bill requires CDFW not to authorize take or to issue a consistency determination unless those measures require conditions at least as stringent as required by the relevant baseline federal standard. The bill includes within this prohibition incidental take permits and statements and biological opinions (which are the regulatory documents that authorize certain actions by the applicant).
- Provides that to the extent authorized by the 1902 Reclamation Act and other federal laws, that CESA applies to the operation of the federal Central Valley Project.
- In the event the federal endangered species act is amended to weaken existing law, this bill provides a private right of action that will be evaluated by the Judiciary Committee.
Safe Drinking Water Act.
The bill does the following:
- Using the provision that prohibits backsliding on drinking water quality laws, including the provisions that define exempt aquifers into which disposal is allowed, the bill requires state agencies to retain the standards and protections that implement the Safe Drinking Water Act that were in effect on 1/1/2016, or 1/1/2017, on whichever date that law and its implementing regulations were the most stringent.
ARGUMENTS IN SUPPORT
The findings and declarations in this bill serve as the author’s statement in support of this bill. Those can be summarized as follows: A new president and a new Congress have signaled (and started in some cases), a series of direct challenges to federal environmental laws and the protections they provide, as well as to the underlying science that makes these protections necessary, and to the rights of the states to protect their own environment, natural resources, and public health as they see fit.
Audubon California stressed the “direct federal challenges to many environmental protections we enjoy in California. Those direct challenges justify an equally direct response,” its letter said.
A large environmental coalition expressed support for the bill because the bill attempts to avoid any federal rollbacks in vital environmental, public health, and worker safety protections. It points out that many environmental protections are built on a foundation of federal standards. This bill incorporates those standards into state law, which is important because of the ongoing efforts in Washington, D.C., that, if successful, would undermine these basic protections.
The Humane Society of the United States focused its letter on the endangered species act. With an ongoing sixth mass extinction of species exacerbated by climate change, HSUS believes it is the absolute wrong time to weaken protections aimed at recovering California species such as the Southern sea otter, humpback, blue, fin, killer, and gray whales, pollinating butterflies, steelhead trout, snowy plovers, and dozens of other mammals, birds, and insects. It points out that these species play an important role in ecosystems that may never be replicated and that provides important services to humans. HSUS also points out the ESA has a 99 percent success rate in preventing extinction, keeping more than 200 species from going extinct. It is also credited with the recovery of some of California’s most iconic wild species including the bald eagle, California brown pelican, the American peregrine falcon, and the foxes of San Miguel, Santa Cruz, and Santa Rosa islands.
Importantly from an economic standpoint, the HSUS letter notes that while the ESA does require project developers to make adjustments in some situations, that a recent peer-reviewed study by the National Academy of Sciences found that between 2008-15, the ESA did not stop a single project of the 88,000 projects reviewed.
ARGUMENTS IN OPPOSITION
The California Farm Bureau Federation opposes the “no backsliding” provisions that apply to major federal environmental statutes because of the absence of a system for allowing revisions and improvements. It argues that new scientific developments should be allowed to be inform new amendments to these federal laws. It is also opposed to the private right of action although it recognizes that provision becomes operative only if the federal government rescinds the current citizen suit provisions in these laws.
COMMENTS
- The Committee may be interested in some context regarding the numbers of species listed under both the federal and state acts. According to the California Natural Diversity Database maintained by CDFW, there are 48 state-listed endangered species, 39 state-listed threatened species, 88 federally listed endangered species, and 42 federally listed threatened species. Many of these species (52) are dually listed under both acts. There are 35 species that are listed only under CESA, and 74 that are listed only under federal law. These last 74 are the species that would be covered under state law by this bill.
- These 74 species include two species of abalone, several crustaceans that inhabit vernal pools, several insect species and fish species including the Santa Ana sucker, four distinct steelhead trout populations, and two trout species. The federal listings also include some amphibians, oceanic turtles, and bird species that are not listed under state law, as well as some mammals such as the southern sea otter and several species of whales.
- Section 2062 of the Fish and Game Code includes birds, mammals, fish, amphibians, reptiles, or plants that may be listed as threatened or endangered species. It does not include insects. However, the protection of insects will not be necessary if there are no federal rollbacks. Second, the bill is not seeking to add an overall category of insects to CESA. Instead, it is simply trying to protect under state law the insects that are protected under federal law.
- The Central Valley Water Project Act (CVPIA) provision may generate some interest, but its central point is to clarify what many observers (and even federal agencies) have said before. For example, at the end of 2016 Congress passed the Water Resources Development Act with significant funding for storage, desalination, recycling, and other water projects. Senator Dianne Feinstein went to some trouble to state that the WRDA legislation “complies with environmental laws and biological opinions” in an op-ed in the 12/14/16 Mercury News. A savings clause in the WRDA legislation that makes clear that the law will be implemented in a way that is consistent with the federal ESA. That savings clause is in Section 4012.
- When the CVPIA was established, Congress expressly amended the Bureau of Reclamation’s (operator of the Central Valley Project) to meet all obligations under state and federal law, including but not limited to the federal Endangered Species Act. Central Valley Project Improvement Act of 1992, Sec. 3406(b), Pub. L. No. 102-575. This requirement includes compliance with “all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project.” A subsequent Board decision (D-1641) requires the Bureau to comply with the CESA. Some authorities also suggest that the CVPIA must also comply with the California public trust doctrine which, at a minimum, would likely incorporate the standards of CESA.
- Lastly, in 2008, the Bureau agreed with CDFW that it would operate the CVPIA in accordance with CESA following the listing of the longfin smelt fish species under California law.
- Assuming the bill moves forward, the author may wish to consider a clarifying amendment to the CESA provision as follows:
120061. Except as otherwise authorized by state law, both of the following apply:
- To ensure no backsliding as a result of any change to the federal Endangered Species Act, all native species, subspecies, and distinct population segments not already listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code that are listed as endangered or threatened pursuant to the federal Endangered Species Act as of January 1, 2017, are deemed to be an endangered or threatened species, as appropriate, for purposes of Article 2 (commencing with Section 2070) of Chapter 1.5 of Division 3 of the Fish and Game Code. The Fish and Game Commission may review and modify the listing of species pursuant to this section.
This amendment adds clarity to the species that would be listed and to avoid any ambiguity about whether a formal listing procedure under state law is necessary. If agreeable to the author, this amendment could be taken at any of the next policy committee hearings of this bill.
Triple-referral The Rules Committee referred this bill to the Committee on Natural Resources and Water, the Committee on Environmental Quality, and to the Committee on Judiciary. Therefore, if this bill passes this committee, it will be referred to the above referenced committees, which will consider the issues within their jurisdictions.
SUPPORT
APEN
Audubon California
California Bicycle Coalition
California Coastal Protection Network
California League of Conservation Voters
Environment California
Environmental Defense Fund
Environmental Working Group
Friends Committee on Legislation of California
Friends of Harbors, Beaches and Parks
Heal the Bay
Hills For Everyone
Humane Society of United States
Mono Lake Committee
Natural Resources Defense Council
PAN
Releaf
Sierra Club
The Trust For Public Land
Voices for Progress
Wholly H2O
OPPOSITION
California Farm Bureau Federation
California Manufacturers & Technology Association
California Chamber of Commerce
-- END --
Discussed in Hearing
3MIN
Assembly Floor
1H
Assembly Standing Committee on Appropriations
32MIN
Assembly Standing Committee on Judiciary
31MIN
Assembly Standing Committee on Natural Resources
41MIN
Assembly Standing Committee on Environmental Safety and Toxic Materials
5MIN
Senate Floor
48MIN
Senate Standing Committee on Appropriations
56SEC
Senate Standing Committee on Appropriations
Bill Co-Author(s):
