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The 1999 Environmental Legislative Forecast: Charting a Steady CourseCopyright 1999 © All Rights Reserved This article was originally originally published in the CALIFORNIA ENVIRONMENTAL LAW REPORTER (Matthew Bender). Permission to reprint is hereby granted by the publisher. The era of divided government in California politics has ended with the election of a Democratic Governor and Legislature for the first time in 16 years. The last time Democrats controlled the lawmaking apparatus in Sacramento was when Governor Gray Davis served as the chief of staff to then Governor Jerry Brown - now the Mayor of Oakland. This dramatic shift in political power was furthered by the switch in the Attorney General's post, now occupied by environmental activist and former Democratic Senator Bill Lockyer. The 1998 election boosted the clout of the Democratic Party in both houses of the Legislature, extending the Democratic majorities to 47 Assembly members and 25 Senators. What these seismic shifts in power portend for the environmental policy agenda will not be known until sometime this summer when Governor Davis has completed key appointments to his administration, the budget approval process is completed, and bills have moved past their houses of origin. Only then will the administration be getting down to business and providing meaningful direction to pending legislative proposals. Thus far, key administrative appointments to environmental posts include Winston Hickox to head the embattled Cal/EPA and Mary Nichols to oversee the Resources Agency, which is responsible for the departments of water, forestry, parks, and fish and game. Both agencies will face important policy issues ranging from the fate of the Headwaters forest and the phase-out of MTBE (methyl-tert butyl ether) to the CALFED process that will determine the fate of water allocation into the next century. Despite term limits and its biennial shake-up in changing legislative committee chairmanships, the faces and roles remain relatively static compared to recent years. A great deal of policy in the 1999/2000 biennial session will be shaped by the failed legislation of years past. A dearth of environmental bills was passed in 1998 as a significant number of bills succumbed to the veto pen of former Governor Wilson or were withdrawn as a result of his veto threat. Thus the unfinished business held over from the last session along with other shelved policy initiatives will likely be recycled from past legislative sessions. Although resolution of MTBE in gasoline and the purchase and management of the Headwater forest are prominent holdover issues from the last administration, significant new policy directions are taking shape on growth management and preservation of open space in the Golden State. Recycling and "Solid Waste"Many foundational provisions of the landmark Beverage Container Recycling Act [Stats. 1986, AB 2020] expired when the reauthorization bill failed and the law sunset on January 1, 1999. Governor Gray Davis' first signature was for a stopgap measure extending by one year the AB 2020 law. This law sets the stage for enactment of an expanded Bottle Bill that is expected to embrace a broader range of container types. Other legislation pertaining to the Bottle Bill would move regulatory control from the Resources Agency to Cal/EPA. The Integrated Waste Management Act of 1989 (Sher) is also scheduled to sunset on January 1, 2000. This law requires, among other things, that cities and counties divert from landfills 50 percent of their nonhazardous, solid waste streams by 2000. Before this law lapses, the Act potentially could be further expanded to promote source reduction and market development for recycled and reused products. Other changes may include restructuring the composition of the Integrated Waste Management Board to include a local government representative and strengthening enforcement. Growth Management/Smart GrowthNew residential developments and increased population fueled by a healthy and expanding California economy have spawned creative approaches to managing growth and preserving open space and greenbelts. Following the lead of Vice President Al Gore and the California Futures Network, the Legislature may be echoing a renewed interest in growth management and land use planning oriented to densification and linked to transit. This package of initiatives, dubbed "SMART Growth," is expected to emerge as a new area of legislative focus as California's burgeoning population expands. We can expect a package of bills addressing urban limit lines, infill development incentives, transit-oriented land use, pedestrian-friendly communities, "Brownfield" urban and industrial revitalization, and Williamson Act Land Conservation Contract expansion. Other agricultural farmland protection legislation is anticipated. Growth management and land use legislation will likely also center around the impacts of growth on water quality and land use. SB 901 (Costa) was enacted a few years ago and required lead agencies entertaining approval of major development projects (i.e., 500 new homes or large industrial projects) to complete a water supply assessment before certifying an environmental impact report or a negative declaration under the California Environmental Quality Act (CEQA). Reacting to a perception of widespread noncompliance with SB 901, Senators Costa and Machado are expected to introduce cleanup legislation that is anticipated to close perceived gaps that prevent timely disclosure of water supply availability from water districts. SB 53 (Haynes), which resembles a bill from last session, would require state and local agencies to review the effects of proposed regulations on private property rights and would lower the standard of what constitutes a taking. SB 225 (Rainey) would codify the judicially fashioned and professionally accepted definition of "consistency" for the purpose of requiring zoning, subdivisions, and other land use decisions to be consistent with local General Plans. Natural Resources and Bond MeasuresNatural resources policy this legislative session will be dominated by a series of park and water bonds designed to purchase and protect the Headwaters forest, parkland, coastal, and watershed lands in an effort to preserve ecologically sensitive lands and protect endangered species. In the eleventh hour of the 1998 session, a comprehensive bond package (AB 2027) failed passage. Many of the same provisions will be resurrected in several park bonds currently being drafted by the Legislature and the Governor that are aimed at dedicating public funds for a collection of habitat protection projects through acquisition of open space land and coastal resources, with an emphasis on urban parks for recreation. These bonds are vying for a spot on the November 2000 ballot. Another developing bond theme includes water quality protection ranging from coastal protection to implementation of the CALFED Bay-Delta program recommendations scheduled for the March 2000 ballot. In the prior session, the water bond began as a flood bond and evolved to embrace water reuse and recycling components of the CALFED process. A California Endangered Species Act bill is expected to extend the sunset provision of that law. Water QualityAnother high visibility issue held over from last session concerns the possible phase-out or ban of the controversial MTBE gasoline oxygenate. The Governor is expected to hold a hearing on a recent University of California report (completed in response to SB 521 (1997)) which examines the health effects of MTBE. Although the CALFED process - designed to craft a long-range plan for the Bay-Delta - is not expected to be final for another year, other legislation is expected to create a government entity or commission to oversee CALFED water use functions. Reintroduction of a 1998 session bill (AB 291), which would have prohibited state and local government from funding the "isolated facility" (former peripheral canal), is expected. Currently, the CALFED process is considering a much smaller facility or duel conveyance facility, which would still allow water to flow through the Delta. If water quality and fisheries standards are not met within seven years, then a duel conveyance facility would be constructed. Failed legislation in 1998 designed to regulate non-point sources of pollution from agriculture (e.g., animal feedlots) is expected to resurface as a key issue this session. The water bond is also expected to include funding provisions to support infrastructure such as zero interest bonds to fund installation of berming around feedlots at dairy farms. In response to electricity deregulation and restructuring, Pacific Gas & Electric is planning to dispose of small hydroelectric dams and adjoining watershed lands. There are many interested purchasers, including rural counties and the timber industry. Legislation is currently pending that would give counties the first right of refusal to acquire those facilities. Other water quality-related legislation is focused on coastal access and coastal water quality. AB 50 was recently introduced to beef up enforcement of existing water quality laws (last year's 1862 by Migden). Other coastal legislation vetoed last year is expected to be introduced to protect coastal access. This "recycled" legislation is intended to prohibit state agencies from giving away coastal access rights without Coastal Commission approval. Other water quality legislation will likely include the following:
Additionally, the Porter Cologne Water Quality Control Act may be reevaluated for its 100,000-mile checkup. Cal/EPALast session, Governor Wilson vetoed a bill that would have established a sunset date for the Cal/EPA - a bill that underscored the Legislature's frustration with Cal/EPA, which is perceived as not fulfilling its mission since its creation in 1991. Cal/EPA has been criticized for lacking a unified, multimedia focus, leaving the regulated community with the burdensome task of satisfying a multiplicity of requirements from several single purpose agencies. Whether the Cal/EPA Secretary has authority over its subordinate boards and agencies or whether it is nothing more than a figurehead agency with a loose coordinating function remains unresolved under current law. With this backdrop, we can expect legislation designed to revamp the troubled agency. While the Legislature ponders Cal/EPA reform, the California Law Revision Commission continues in its plodding effort to recodify and consolidate relevant water quality and water rights from eight codes. The air quality codes were redrafted last year. Hazardous WasteThe Department of Toxic Substances Control's Regulatory Structure Update (RSU) proposal, a Wilson administration initiative designed to reclassify hazardous wastes, has met with resistance from agencies and Cal/EPA for concerns over cross media impacts. The RSU proposal has been also criticized on the grounds that it is not scientifically sound or defensible. Thus, a legislative fix may be in store this session. AB 278 (Escutia) from the 1998 legislative session has resurfaced as a spot bill in SB 25 (Escutia). The previous legislation would have expanded air toxics programs to protect infants and children and altered the pollutant-by-pollutant approach to determining health risk by focusing on cumulative and synergistic health impacts. Superfund ReauthorizationMany provisions of the Hazardous Substances Account Act (California's "Superfund" law) expired on January 1, 1999. The California Superfund is expected to be reauthorized as an urgency matter during this session along with a series of reform measures entertained last session. Air QualityExcept for the move to phase-out or eliminate MTBE (see discussion above), a less ambitious agenda is expected for air quality regulation during this legislative term. Air quality policy initiatives will likely include legislation to preempt local government from banning leaf blowers and reevaluation of mobile source Emission Reduction Credits (ERCs). The latter initiative was sparked by controversy over South Coast Air Quality Management District Rule 1601, which permits mobile source ERCs for retired motor vehicles and is seen by some as allowing double and triple counting of air emissions credits. Growing out of recent Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) litigation over diesel emissions, legislation is expected to establish a single, statewide notification standard for diesel emissions and exposure. Finally, Senator Costa has reintroduced legislation requiring upwind air districts responsible for downwind smog conditions to adopt a SMOG Check II program. This legislation would have a particularly acute impact on the San Francisco Bay Area, which contributes transported ozone precursors into the Central Valley. Environmental JusticeA flurry of environmental justice bills, many of which failed last session, are expected to reappear this session. A bill that would import environmental justice considerations into the California Environmental Quality Act (CEQA) process (SB 45 - Solis) was reintroduced, while SB 188 (Escutia) would create an environmental justice study group. CEQADespite some concerns voiced about the recently adopted CEQA Guidelines, very few substantive changes are expected for CEQA during this legislative session. ConclusionAdministrative policy initiatives have been slow to coalesce as the Gray Davis administration deliberately staffs up, leaving the Legislature the lead in shaping environmental policy. Environmental policy will be further delayed this year as legislative initiatives are typically slow to develop during the beginning of a two-year legislative session. Once the environmental agenda takes shape, the California Legislature will be faced with a heightened sense of responsibility in fashioning law as neither political party can take cover voting for doomed bills facing the veto pen as occurred in years past. Accordingly, as the green-leaning Legislature dusts off its backlog of shelved policy ideas, it will be faced with the challenge of drafting and shepherding environmental policy that will clear bipartisan hurdles and win the signature of a moderately green Governor. |
