STATE BILL TO BLOCK TRUMP

The Fresno Bee (Sunday) - - Front Page - BY EL­IZ­A­BETH SHWE es­[email protected]

Cal­i­for­nia’s Se­nate is con­sid­er­ing a bill that would lock en­vi­ron­ment pro­tec­tions in place un­til the year 2025.

Cal­i­for­nia is con­sid­er­ing a far-reach­ing law that would lock cur­rent en­vi­ron­men­tal pro­tec­tions into place and would only be in ef­fect un­til the end of Don­ald Trump’s pres­i­dency.

The premise of the Se­nate Bill 1 is sim­ple: to main­tain en­vi­ron­men­tal and worker safety stan­dards that the state has had in place for decades, even if the fed­eral govern­ment rolls them back.

Stan­dards that were ef­fec­tive be­fore Jan. 19, 2017 (the day be­fore Pres­i­dent Trump took of­fice) would be en­force­able un­der state law un­til Jan­uary 20, 2025, or when Trump would leave of­fice if he wins a sec­ond term.

Trump has made elim­i­nat­ing en­vi­ron­men­tal reg­u­la­tions a pri­or­ity. It’s why Se­nate Pres­i­dent Pro Tem Toni Atkins, D-San Diego, says it’s nec­es­sary for Cal­i­for­nia to have an “in­sur­ance pol­icy against the ex­ploita­tion of our nat­u­ral re­sources and our peo­ple.”

“SB 1 would in­su­late Cal­i­for­nia from sys­tem­atic un­der­min­ing of the reg­u­la­tory process at the fed­eral level and the weak­en­ing of our clean air, clean wa­ter, safe drink­ing wa­ter, en­dan­gered species, and worker pro­tec­tion acts that were all adopted on a bi­par­ti­san ba­sis in the 1970’s,” Atkins said in a state­ment.

Cal­i­for­nia cur­rently holds the bur­den of ini­ti­at­ing law­suits against the fed­eral govern­ment on en­vi­ron­men­tal poli­cies it doesn’t sup­port. Ad­vo­cates say the mea­sure would shift the bur­den of mak­ing le­gal chal­lenges to the fed­eral govern­ment.

HOW IS THIS LE­GAL?

Although Cal­i­for­nia has its own en­vi­ron­men­tal laws, it re­lies on the fed­eral govern­ment for some pro­tec­tions.

Right now, Cal­i­for­nia can ad­dress weak­en­ing of any stan­dard through lit­i­ga­tion and ne­go­ti­a­tion. The bill would be “one more tool in Cal­i­for­nia’s tool­box” to pro­tect state re­sources in the event of fed­eral changes, ac­cord­ing to Annie Not­thoff, the western ad­vo­cacy di­rec­tor of the Nat­u­ral Re­sources De­fense Coun­cil.

How is this le­gal? States have ju­ris­dic­tion to pass their own en­vi­ron­men­tal laws. In fact, the En­dan­gered Species Act clearly as­serts that state laws are al­lowed to be more re­stric­tive

than the reg­u­la­tions in the act.

If fed­eral changes oc­cur, the bill would let Cal­i­for­nia more quickly adopt any air, wa­ter, en­dan­gered species and cer­tain work­ers’ safety stan­dards – as they ex­isted be­fore the Trump ad­min­is­tra­tion took of­fice – into state law.

Se­nate Bill 1 is not the first of its kind. In 2003, Cal­i­for­nia passed a sim­i­lar law, SB 288, aimed at pro­tect­ing the state against any roll­backs on fed­eral air reg­u­la­tions im­ple­mented by the Bush ad­min­is­tra­tion. That law is nar­rower in scope than the one un­der con­sid­er­a­tion now and has never been used.

In May, Ore­gon Gov. Kate Brown signed a sim­i­lar law that al­lows her state to adopt fed­eral en­vi­ron­men­tal stan­dards of the Clean Air and Clean Wa­ter Acts that were ef­fec­tive as of Jan. 19, 2017 if the fed­eral govern­ment rolls them back.

The most con­tentious part of the Cal­i­for­nia bill would sub­ject the Cen­tral Val­ley Project, a fed­eral project, to the state’s En­dan­gered Species Act.

The Cal­i­for­nia Cham­ber of Com­merce, an op­po­nent of the bill, says that pro­vi­sion goes too far.

“It is com­pletely un­con­sti­tu­tional to force a fed­eral agency to ad­here to a state stan­dard,” said cham­ber pol­icy ad­vo­cate Adam Regele, cit­ing the Supremacy Clause of the U.S. Con­sti­tu­tion.

Not­thoff from NRDC thinks oth­er­wise.

She pointed to the 1992 fed­eral Cen­tral Val­ley Project Im­prove­ment Act, which she said re­quires the U.S. Bureau of Recla­ma­tion to com­ply with state law for oper­a­tions on the Cen­tral Val­ley Project.

Put sim­ply, whether or not Cal­i­for­nia’s En­dan­gered Species Act can legally ap­ply to a fed­eral project is an open ques­tion of law, and would most likely re­sult in a law­suit.

The bill has a sev­er­abil­ity clause that would mean that the rest of the mea­sure would still ap­ply even if one part of it is chal­lenged.

WHAT ARE OP­PO­NENTS WOR­RIED ABOUT?

Many of the op­po­nents sup­port the main in­tent of the bill, but farm and wa­ter agen­cies say por­tions of it could in­ter­fere with their ef­forts to make wa­ter sup­ply more re­li­able.

The most con­tentious part has to do with lock­ing into place an old reg­u­la­tory ap­proach on wa­ter un­der the state En­dan­gered Species Act.

In 2016, the Obama ad­min­is­tra­tion be­gan im­ple­ment­ing reg­u­la­tions that would clamp down on South­ern Cal­i­for­nia cities and farm­ers in the San Joaquin Val­ley from tak­ing as much wa­ter from the Sacra­mento-San Joaquin Delta to pro­tect en­dan­gered fish.

The Trump ad­min­is­tra­tion last year be­gan rolling back those rules and creating new ones with the ex­plicit goal of pump­ing more wa­ter to farm­ers.

That’s one rea­son farm groups op­pose SB 1.

Mean­while, the wa­ter users ar­gue SB 1 could also de­rail pro­posed wa­ter-shar­ing and river habi­tat restora­tion projects, un­der com­pro­mise “vol­un­tary set­tle­ment agree­ments” for­mer Gov. Jerry Brown and Gov. Gavin New­som tried to bro­ker be­fore Brown left of­fice last year.

Fi­nal approval for this “vol­un­tary agree­ment” ap­proach is ex­pected by 2021, ac­cord­ing to Mike Wade, ex­ec­u­tive di­rec­tor of the Cal­i­for­nia Farm Wa­ter Coali­tion.

Some en­vi­ron­men­tal groups are skep­ti­cal that vol­un­tary agree­ments will be honored be­cause they may not have the same force of law that the pre­vi­ous reg­u­la­tory ap­proach had.

SB 1 would make the old reg­u­la­tory ap­proach Cal­i­for­nia law. Be­cause the bill doesn’t have lan­guage that pro­tects “vol­un­tary agree­ments,” op­po­nents said stake­hold­ers will walk away from the table if this bill passes.

“This is a whole ef­fort we’ve been work­ing on for years. It would be wasted time and en­ergy,” said Jeff Kightlinge­r, gen­eral man­ager of the Metropoli­tan Wa­ter Dis­trict of South­ern Cal­i­for­nia.

Many stake­hold­ers be­lieve that this new project-ori­ented ap­proach is a bet­ter way to im­prove habi­tat and flow in the Delta than the old reg­u­la­tory way.

“It’s our hope that the Leg­is­la­ture will find its way through its thorny path that achieves the goal of the bill while not up­end­ing the other Her­culean ef­forts to in­vest in Cal­i­for­nia’s en­vi­ron­ment,” Wade said.

IS THIS JUST A POLITICAL SHOW?

Ad­vo­cates say they aren’t just play­ing pol­i­tics. They point to the fact that the Trump ad­min­is­tra­tion has sig­nif­i­cantly weak­ened the En­dan­gered Species Act just this week.

Even if Pres­i­dent Trump is not re-elected in 2020, it will take years to re­in­sti­tute some reg­u­la­tions, said Kim Delfino, Cal­i­for­nia pro­gram di­rec­tor for De­fend­ers of Wildlife.

“I’ve worked on ESA is­sues for 25 years. This is the worst I’ve ever seen it,” she said.

Even op­po­nents have been vo­cal about their sup­port for the main in­tent of the bill.

“This bill is an hon­est ef­fort to pro­tect Cal­i­for­nia from po­ten­tial changes in fed­eral law in sev­eral ar­eas,” Wade said. “We are not op­posed to the in­tent of the bill,” said Regele of CalCham­ber.

HOW IS CAL­I­FOR­NIA DO­ING IN THE COURTS?

Cal­i­for­nia At­tor­ney Gen­eral Xavier Be­cerra has filed a to­tal of 27 en­vi­ron­men­tal law­suits against the Trump ad­min­is­tra­tion and has won 18 of them, ac­cord­ing to his of­fice.

Just this week, Be­cerra filed a law­suit as part of a coali­tion led by New York chal­leng­ing the Trump Ad­min­is­tra­tion’s re­place­ment rule of the Clean Power Plan.

Be­cerra also threat­ened to sue the fed­eral ad­min­is­tra­tion over its changes to the En­dan­gered Species Act this week.

In May, Be­cerra led a coali­tion of 17 states and the Dis­trict of Columbia in su­ing the U.S En­vi­ron­men­tal Pro­tec­tion Agency for their ef­forts to weaken the na­tion’s sin­gle ve­hi­cle emis­sion stan­dard. This led to an agree­ment be­tween Cal­i­for­nia and four ma­jor au­tomak­ers on re­strict­ing green­house gas emis­sions.

WHAT IS NEXT?

SB 1 has passed the Se­nate and will be heard by the Assem­bly Ap­pro­pri­a­tions Com­mit­tee on Au­gust 21.

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