A Greener Legislature: The 1997 Environmental Forecast

by Gary A. Lucks, J.D.*

Copyright 1997 © All Rights Reserved

This article was originally published in the CALIFORNIA ENVIRONMENTAL LAW REPORTER (Matthew Bender). Permission to reprint is hereby granted by the publisher.

The winds of political change, fanned by term limits and Presidential coattails, altered the political landscape in Sacramento in 1996. The newly-constituted legislature is greener than the previous body; members are more pro-environment and less experienced. The 1996 election returned both legislative houses to the Democrats, shifting the ideological makeup to the pre-Contract with America era. This new legislature is likely to face off with Governor Wilson, portending a return to legislative stalemate and gridlock.

The Mercurial Assembly

The mercurial California legislature has witnessed a sea of almost constant change since the advent of term limits and the Republican takeover of Congress. With a 43-37 edge, the Democrats elected Cruz Bustamante as Speaker of the Assembly. Speaker Bustamante is the fourth Speaker in a two-year period marked by considerable uncertainty and antipathy, where the control of the lower house changed regularly. Known as a moderate on environmental policy, Mr. Bustamante has continued the recent practice of maintaining a bipartisan split on committee chairmanships. The Assembly Natural Resources Committee (chaired by attorney and former CEQA litigator, Debra Bowen) and Water, Parks, and Wildlife Committees (chaired by Assemblymember Mike Machado) are chaired by Democrats, with the Vice Chairmanships held by Republicans. This effort to appease Republicans and avoid bipartisan enmity could be a short-lived respite from the perpetual political acrimony; however, Mr. Bustamante will be "termed out" of the Assembly in less than two years.

Thanks to term limits, the Assembly is composed of 40 percent freshmen members (34 new members in the 80-member house). Ninety-five percent of the newly-constituted Assembly is composed of members with less than four years of Capitol experience. As a consequence, the Legislature has witnessed an avalanche of lost institutional memory of 400 years. As these members climb steep learning curves and find their way around the Capitol, the equally pro-environmental Senate will carry the initial legislative burden of introducing bills affecting a range of environmental policy.

With the thin, 41-vote majority wrested from the Republicans, moderate, environmentally-inclined Assemblymembers are no longer obliged to toe the party line. Released from these constraints, pro-environmental Republican Assemblymembers will be free to vote with the Democratic majority, without risk of upsetting a narrow Republican majority. As a result, we can expect a number of environmentally-oriented bills that were side-lined during the past biennial session to resurface.

Senate Reorganized

The California Senate also remains fairly green, with 23 of the 40 seats held by Democrats. Very pro-environmental Senators Tom Hayden and Byron Sher chair key environmental Senate committees. Senator Hayden chairs the Senate Natural Resources Committee and freshman Senator Byron Sher, former Chair of the prolific Assembly Natural Resources Committee, now chairs the newly formed Senate Environmental Quality Committee. This committee replaced the former Senate Toxics and Public Safety Management Committee. The jurisdiction of the committee expanded to encompass some matters formerly addressed by the Senate Government Organization Committee. The Senate Environmental Quality Committee entertains legislation pertaining to air quality, solid waste, hazardous substances/waste, and the California Environmental Quality Act (CEQA). Additionally, the Senate Housing and Land Use Committee is chaired by Oakland Democratic Senator Barbara Lee.

Legislative Forecast

Despite the more environmentally-oriented posture of the legislature, key environmental committee consultants do not expect significant new environmental initiatives to be successfully advanced during the current legislative session. The legislature is expected to be preoccupied fashioning substantive changes affecting the California Endangered Species Act (CESA), coastal protection, and flood protection.

CESA Reform

During the waning days of the last biennial session, a compromise to reform the California Endangered Species Act (CESA) was forged but failed passage in the eleventh hour. The package was designed to carve out "incidental take" exemptions for specified, "routine and ongoing" agricultural, utility, and oil pipeline activities. Agricultural, utility, and oil interests are likely to seek a similar exemption in the 1997 legislative session, while developers are expected to seek "incidental take" authority for their activities. Senator Costa has already introduced a spot bill (SB 231) to address the ongoing activities issue. A likely Wilson-supported omnibus bill will be introduced to reform CESA as well. Ultimately, the debate is expected to center on whether and to what extent (1) the entire system should be streamlined; (2) routine take should be allowed; and (3) to address the nexus between CESA and the California Environmental Quality Act (CEQA).

Other developments are expected to promote wildlife conservation by establishing tax credits for those offering land for wildlife conservation.

Coastal Protection

A number of Democrats whose districts abut the coastline focused their campaign themes on strengthening laws to protect California's magnificent coastline. Assemblymember Ted Lempert, who served in the legislature two years ago and unseated the incumbent, is the chair of the newly-established Select Committee on Coastal Affairs. This committee serves largely in an oversight capacity without authority to pass bills.

A series of approximately 20 coastal bills are circulating designed to expand the oil prevention and cleanup provisions of the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act [AB 2040, 1990]. Additionally, this legislation is anticipated to address Coastal Commission reform, coastal access reform, water pollution, and beach safety. Related issues will address public notice concerning water quality, making water quality data more available to the public, the health of ocean fisheries, and no net loss for wetlands mitigation banking.

Flood Protection

The major New Years flooding in California has spawned a reexamination of the flood control paradigm in the state. An Extraordinary Session of the legislature has been convened to entertain and streamline enactment of a variety of flood protection and cleanup legislation, along with a Bond Act to raise revenues for channel cleanup and to expand and improve levees. This special session will run concurrently with the regular session through March or April, and will hear legislation focusing on disaster relief, a proactive reassessment of the flood control system, and rebuilding the flood-damaged Central Valley levee system.

The disaster relief and construction legislation will address tax relief and property tax carry overs, and special appropriations. Legislation designed to prevent a similar disaster will include bills supported by the Farm Bureau and Friends of the River to acquire flood easements, establish and enlarge development set-backs from levees, bolster the strength and maintenance budgets for the existing levee system, and establish a Caveat Emptor notice requirement for purchasers of property adjacent to levees. The development community will focus on increasing reservoir space and building additional dams. Additionally, there is a recognition that the Federal Emergency Management Agency (FEMA) mapping system may be inaccurate for land use planning purposes. As a result, legislation can be expected to remedy this perceived deficiency.

Other Key Environmental Legislation

The mantra of the last biennial session was to relax the more rigorous California environmental standards and return to the federal environmental framework. The momentum of this movement will likely shift to the philosophy of former Republican Assemblymember Debra Bowen, who promotes maintaining the stringency of the California environmental laws, while streamlining administrative procedures.

CEQA Reform

Major CEQA reform is not anticipated this session; however, a number of bills will certainly be introduced to weaken this long-standing law. The Resources agency is expected to introduce legislation to prohibit a lead agency from characterizing a flora/fauna impact as environmentally significant unless the species affected is endangered. This legislation would codify recent changes to the CEQA Guidelines proposed by the Resources Agency. San Francisco 49er fans can expect a bill exempting from CEQA activities associated with relocating tenants for the new stadium.

Air Quality

The legislature will face an ambitious agenda affecting air pollution control. We can expect to see legislation that either requires the Air Resources Board (ARB) and local air districts to embrace or ignore the recently proposed federal ozone and particulate matter (PM) standards. The United States Environmental Protection Agency proposes to lower the national ambient air quality standard (NAAQS) for particulates from 10 microns aerodynamic diameter to 2.5 microns. Additionally, the NAAQS for ozone would be lowered from 0.12 parts per million (ppm) averaged in a single hour to 0.08 ppm. The California Ambient Air Quality Standard for ozone is currently 0.09 ppm.

Other substantive developments would include legislation intended to address perceived delays in listing additional AB 1807 [Tanner, 1983] air toxics, such as diesel. Another bill addressing air toxics would affect the air toxics data generated by the Air Toxics Hotspots Information and Assessment Act of 1987 (otherwise known as AB 2588). Legislation would be fashioned to export air toxics inventory data for use in developing additional controls or performance standards for air toxics emissions.

There is also talk of modifying local city and county authority to administer the recently refashioned Risk Management Program (RMP) and vest it with the State Office of Emergency Services (OES) or local air pollution control districts.

Cleanup legislation intended to soften the impact of last session's AB 3319 (Ducheny) is expected. AB 3319 gave air districts authority, subject to ARB approval, to eliminate local no-net-increase provisions under the New Source Review program. The legislation would make it more difficult for an air district to obtain ARB approval.

The efficacy of the emissions reductions credits generated from smog check II and the vehicle scrappage program will likely be revisited this session. This evaluation is intended to determine whether offsets are being double counted. Finally, appropriations legislation is expected to modify the current system of funding the vehicle scrappage and smog check II programs. Currently, these programs indirectly receive funds from motor vehicle registration surcharges.

Governmental Agency Shuffle

Since Cal/EPA was established in the summer of 1991, the original promise of recasting the environmental statutes into an integrated whole has not been realized. There is a growing recognition of the need to further integrate the multimedia environmental laws to promote predictability and accountability, and to ensure environmental protection. This much needed integration may receive little attention during this session due to preoccupation with other issues and a recognition that there is currently a dearth of legislative staff to develop this initiative. Less ambitious efforts to restructure environmental agencies offer more promise in this legislative session. For example, it is likely that there will be legislation to merge the waste management functions of the Department of Conservation (DOC) with the Integrated Waste Management Board (IWMB).

Growth Management

Senator Costa, in an attempt to link growth to availability of water, has recycled a previous bill. SB 901 (Costa) would require that adequate water supply be available before a large development project is approved. Senator Barbara Lee is expected to champion legislation that would try to increase affordable housing without causing suburban sprawl. Finally, refinements to the Williamson Act can be expected to encourage agricultural production on easements.

Headwaters Forest

Senator Bill Lockyer (Hayward) established a legislative oversight function to monitor the quid pro quo agreement governing the protection of 7,500 acres of the remaining stand of old growth redwoods in the Headwaters forest. Charles Hurwitz, owner of Pacific Lumber, has agreed to exchange the remaining contiguous stand of old growth for cash, and state and federal properties. Led by Senator Sher, the Senate will review the list of properties offered along with the sustainable yield plan and habitat conservation plan. Although the Senate has no authority, the oversight is intended to facilitate the process and avoid a take-it-or-leave-it proposition at the end of the process.

Hazardous Waste Management/Cleanup

The Administration-sponsored Regulatory Structure Update process is intended to declassify certain categories of hazardous wastes under California law. The zeal to deregulate the body of California hazardous waste law is expected to be met with opposition by the Democrat-controlled legislature. Additionally, there will likely be a focus on lowering the hazardous substance cleanup liability for smaller ("mom and pop") businesses.

Lead-based Paint

There will be increased attention on management of lead-based paint. Legislation is expected to (1) provide limited immunity for homeowners willing to remediate lead-based paint hazards; (2) require landlords and property-owners to notify tenants and purchasers of lead-based paint hazards; and (3) provide funds to remediate lead-based paint.

Conclusion

The environmental legislative agenda served up by the legislature for the current biennial session is certainly less ambitious than two years ago. The window of opportunity presented to the Democrats could be short-lived as the thin Democratic majorities could well wither with the next election. Conventional wisdom favors conservatives in off-year elections. The success of this agenda may therefore hinge on the degree to which bipartisan alliances emerge over the course of the next two years.