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.