The 2016 Environmental Legislative Recap: an Unconventional Election Year Defending a Legacy

• Jurisdiction: California,United States
• Citation: Vol. 26 No. 1
• Publication year: 2017
• Author: by Gary Lucks
• topic: Environmental Law

The 2016 Environmental Legislative Recap: An Unconventional Election Year Defending a Legacy

by Gary Lucks^*

The Governor signed 930 new laws during the 2016 legislative session—up from 808 in 2015. This elevated level of productivity runs counter to most election years, which typically yield fewer, less far-reaching policies compared to a typical "off-year" election. Approximately ten percent of these new laws pertain to environmental, land use and natural resources.

This batch of legislation is noteworthy for its emphasis on serving disadvantaged communities. Senator Pro tempore Kevin de Leon used his influence to infuse many of these laws with environmental justice considerations. Several other new laws are aimed at managing California's housing shortage, reforming the operations of the California Public Utilities Commission ("CPUC"). A significant number of laws addressed climate change, including an extension of the Global Warming Solutions Act of 2006 (known as "AB 32" [Pavley], Stats 2006) and a focus on short lived climate pollutants ("SLCPs"). Other notable legislation includes an increase in penalties for fraud involving air quality violations, protecting California's five major watersheds, water conservation policies, upgrading drinking water infrastructure, and a package of significant reforms in the wake of the Aliso Canyon natural gas release. Except for budget-related urgency bills that passed by a supermajority (both of which took effect upon approval), newly enacted laws became effective on January 1, 2017.

CLIMATE CHANGE

In the wake of the hottest year on record in 2016, the Legislature approved several substantive polices and funding bills to advance efforts to lower California's carbon emissions. Most noteworthy was the enactment of Senate Bill (SB) 32 (Pavley) which extended the sunset date of Assembly Bill (AB) 32 from 2020 to 2030. SB 32 (Pavley) codified Governor Brown's executive order (EO B-30-15) aimed at reducing greenhouse gas ("GHG") emissions to 40% below 1990 levels by 2030. This more ambitious target is designed to "achieve the maximum technologically feasible and cost-effective GHG emissions reductions authorized by [AB 32]."

The Legislature also delivered finishing touches to earlier policies intended to curtail SLCPs. SLCPs, such as methane, tropospheric ozone, hydrofluorocarbons, and black carbon are particularly potent GHGs that are responsible for approximately 40% of global warming. SB 1383 (Lara) is premised on the notion that by reducing SLCP emissions, global warming could be halved in the next few decades. SB 1383 codifies a strategy developed by ARB to reduce SLCPs which calls for reducing methane and hydrofluorocarbon gases by 40% and reducing anthropogenic black carbon by 50% by 2030 against 2013 levels. The bill analysis for SB 1383 suggests that these reductions can be accomplished by replacing older vintage fireplaces and wood stoves and adopting sustainable freight strategies; deploying manure management and dairy digesters; and diverting organic materials from landfills. This new law requires the State Energy Resources Conservation and Development Commission ("CEC") to include within its 2017 Integrated Energy Policy Report strategies to "develop policies and incentives to significantly increase the sustainable production and use of renewable gas [such as biomethane and biogas.]"

AB 197 (Eduardo Garcia) underscores the importance of considering "social costs" in rulemaking. It requires the Air Resources Board ("ARB") to consider social costs of promulgating rules to reduce GHG emissions above-and-beyond the statewide GHG emissions limit and to protect those most impacted including those in disadvantaged communities. Specifically, the ARB must prioritize emission reduction rules that achieve direct emission reductions at large stationary sources of GHG emissions and direct emission reductions from mobile sources. This new law also establishes the Joint Legislative Committee on Climate Change Policies ("JLCCCP") to recommend climate change polices to the Legislature.

AIR QUALITY

AB 1685 (Gomez) responds to news reports spotlighting Volkswagen's fraudulent efforts to manufacture "defeat devices" "designed to bypass ...vehicle emissions control systems." This practice allowed non-compliant cars to circumvent emissions performance tests. AB 1685 was enacted to align civil penalties for mobile source violations with U.S. Environmental Protection Agency ("U.S. EPA") penalties, which were substantially higher than California penalties. This new law increases state civil penalties from $500 to $37,500 to serve as a deterrent to fraud, and indexes penalties to rise with inflation. AB 1685 additionally extends penalties to out-of-state distributors who advertise vehicles over the Internet for sale in California.

[Page 44]

WATER SUPPLY

After five years of severe drought, the skies opened up and blanketed the Sierra Nevada mountains with a surfeit of snow pack that has replenished the state's reservoirs. Several new laws were approved to build on water conservation policies of the past few years along with new laws designed to enhance watersheds, improve data management, strengthen landscaping efficiency standards, and promote retail water conservation.

SB 610 (Costa), 2001 and SB 221 (Kuehl) 2001 were designed "to strengthen the process pursuant to which local agencies determine the adequacy of existing and planned future water supplies to meet existing and planned future demands on those water supplies." These "show me the water" bills have helped local agencies make informed decisions by requiring a water supply assessment ("WSA") as a condition of project approval under the California Environmental Quality Act ("CEQA"). The WSA must describe availability of water to support the water demand anticipated for the proposed project for a 20-year time horizon. Photovoltaic and wind generation projects (with a water demand of up to 75 acre-feet annually) have enjoyed exemption from the WSA requirements. AB 2561 (Irwin) is an urgency law extending this exemption from January 1, 2017, to January 1, 2018. SB 1262 (Pavley) is another water supply law designed to include WSA provisions that were inadvertently left out of the Sustainable Groundwater Management Act ("SGMA"). This new law specifies that a groundwater sustainability plan may be used by a public water system ("PWS") to show that it has sufficient groundwater for residential developments of 500 units or more. This new law also provides that hauled water may not be considered a source of water pursuant to a WSA.

SB 7 (Wolk), which is premised on a study sponsored by the U.S. EPA and the National Apartment Association concluding that sub metering can lower water consumption by 15%, focuses on water conservation and energy efficiency. By providing individual tenants a price signal connecting with their water use, tenants are incentivized to conserve. Senator Wolk states that "for 80% of California's apartment renters, or 12.5 million Californians, there is no correlation between water usage and cost" because most apartments are master-metered with the landlord paying the aggregate water bill. This new law is designed to encourage efficient water consumption by requiring landlords to install individual water meters (i.e., sub meters) on all new multifamily residential units or mixed commercial and multifamily units beginning January 1, 2018.

In a similar vein, SB 814 (Hill) requires urban retail water suppliers to establish strategies to identify and discourage excessive water use during a state declared drought emergency. This could include establishing a rate structure such as block tiers, water budgets or rate surcharges for excessive water use. The new law provides that a violation of the excessive water use rules will result in penalties ranging from an infraction or administrative civil penalty to a misdemeanor. Fully metered jurisdictions are exempt.

DRINKING WATER

The lead contamination tragedy in Flint, Michigan shined a light on the California Safe Drinking Water Act ("SDWA")...