a r t i c l e s

The 2000 Environmental Legislative Forecast: Preserving the Status Quo

By Gary A. Lucks*

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

A flurry of environmental proposals, many of which had been shelved during the quiescent decade of the 1990s, emerged to become law during Governor Gray Davis' debut year. Flanked by a Democratic legislature in both houses, a number of bills that would have died on the desk of the previous governor became law in 1999. Last year's legislative session eclipsed an uneventful legislative decade which was noteworthy not for yielding policy in any direction but for stemming assaults on existing programs and maintaining the status quo. The 1999 legislative session shaped up to be one of the most prolific legislative years in a decade for advancing an environmental agenda and forging new environmental policy.

As we enter the second year of the biennial session in a key election year, the legislative agenda will be less ambitious. If election years past serve as predictable barometers, the 2000 legislative session will be a year of political posturing and little substance. Lawmakers are often preoccupied promoting legislation that will force an opponent to take a difficult position on a wedge issue knowing that such legislation will not reach the Governor's desk. Traditionally, this election year maneuvering tends to overshadow actual policy making.

These election year tactics combined with the Governor's preoccupation with education policy could further stall legislative activity in the environmental arena for 2000. Notwithstanding these constraints, the left leaning legislature's appetite for policy advancement combined with a strong economy and bulging state coffers could conspire to loosen these barriers to match the prolific legislative output of last session. The recent election of a sixth speaker in five years represents a wild card thrown into this mix of factors influencing the productivity of the upcoming session. Speaker Antonio Villaraigosa, hoping to focus efforts on a run for Mayor of Los Angeles, relinquished his leadership post to his friend and Sacramento housemate, Robert Hertzberg. The transfer of power, scheduled later this spring, could also influence legislative policy directions.

However, little change is expected in the make up of the committee chairs or assignments this session.

Against this backdrop, sweeping changes to environmental programs or creation of major new programs are not anticipated during this legislative session. Rather, there appears to be a general consensus that the environmental laws shaped throughout the 70s and 80s and preserved in the 90s are fundamentally sound, but nonetheless need to work better. As a result, we can expect policy oriented toward refining existing environmental programs and ensuring stable funding and other resources to ensure more vigorous agency implementation and enforcement.

Agency/Implementation

The legislature perceives the environmental regulatory system to be broken, believing that state environmental agencies are not consistently implementing and enforcing their statutory programs. The U.S. Environmental Protection Agency (Region IX) recently completed a performance evaluation of the State's implementation of the federal Clean Water Act and concluded that the regional water quality control boards are not functioning according to their statutory mandates. The EPA's performance evaluation examined the basic operations of three regional boards, finding significant lapses. As a result, the legislature will be emphasizing, among other duties, oversight designed to ensure that the regional boards are sufficiently staffed to perform ambient water quality monitoring, inspections, and permit renewals. The legislature will also be looking at ways to ensure that the other state environmental agencies, departments, boards, and commissions are implementing the laws they are authorized to administer.

Other legislative proposals will explore the organizational linking of the California Energy Commission (CEC), the Public Utilities Commission (PUC), and the Air Resources Board (ARB) to allow a coordinated approach to addressing global climate change issues. Additionally, there may be legislation clarifying the jurisdictional dividing line between water quality protection of non-point sources, regulated by the regional water quality control boards, and the coastal commission's jurisdiction over coastal land use.

Echoing a perennial refrain, the legislature continues to be frustrated with the structure and function of Cal/EPA. This is not the year, however, for legislative reform of this agency. Ultimately, the legislature wants improved functional integration of the environmental boards and agencies within Cal/EPA without sacrificing substantive environmental standards.

The legislature, may however, entertain alternative, incentive-based paradigms as an alternative to "command and control" regulatory approaches. Administratively, the Cal/EPA Secretary Winston Hickox has been evaluating the "Green Plan" approach of the Netherlands whose aim is to restore the environment by the next generation. That system involves requiring industry, government, agriculture and other sectors to commit to pollution prevention and measurable emissions reductions over specified time horizons. However, before Green Planning legislation is drafted in Sacramento, it will be necessary to develop improved "baseline" data against which to measure emissions reductions.

Water Quality

Definitive water quality policy initiatives have yet to emerge in the legislature as the state water agenda is currently dominated by two park bond initiatives pending on the March 7 ballot. After the election, the seminal legislative debate will likely return to how to "fix" the Bay Delta and to provide equitable distribution of water among conflicting uses statewide. The evolving discussion continues to be shaped by conflicting biases of agribusiness (i.e., increasing surface storage), urban users (i.e., increasing water quality), and the environmental community (i.e., demand management such as conservation recycling, reuse, and conjunctive use).

Right now there is no consensus among the stakeholders to the CALFED process that is taking shape outside the halls of the State Capitol building. The stage is set for action in June when the stakeholders must issue a record of decision reflecting their decision on a governance structure for CALFED. The forthcoming governing model will carry out watershed management and protection policies reflecting a variety of users including the State of California and the federal government. Failure to reach agreement will elevate this matter to the next legislative session.

Recently introduced AB 732 (Machado) would create a task force to study the social, economic, environmental and other effects of water transfers and would create a water transfer clearinghouse.

We can expect to see other legislation designed to address water supply and hydroelectric dams. Legislation designed to remove some under-performing and obsolete impoundments are on tap while other legislation may seek to impose environmental conditions before Pacific Gas & Electric (PG&E) divests its hydroelectric assets and turns them over to private hands.

Avant garde legislation fashioned after Colorado and New Jersey programs would emphasize regional watershed protection by integrating land use policy and endangered species protection. Watershed protection will also be addressed through the budget process to fund source control studies to support evaluation of total maximum daily loadings (TMDL) in watersheds throughout the state. Other legislation would build on last year's AB 538 (Wayne) that would establish construction and performance standards to address biological contamination for septic systems that have been responsible for beach closures.

The 2000 session could see further tinkering with the penalty structure for water quality violations in the wake of last year's AB 1104 (Migden) which established mandatory minimum penalties and authorized regional water quality control boards to assess higher penalties to reflect the economic benefit derived from a water quality violation.

Air Quality

With the Governor's educational mantra dominating the legislative agenda, environmental initiatives sounding the educational theme have promise of becoming law during this millennial legislative session. Last year's SB 162 (Escutia) combined protection of school children with hazardous waste cleanup, requiring a Phase I environmental assessment of school property as a condition of receiving education funds for school construction. Similarly, the Governor's office is contemplating a $50 million budgetary line item to support a diesel school bus retrofit program that also ties environmental benefits to protecting school children. Other environmental legislation linked to schools is expected which would require air quality surveys to evaluate the indoor air quality of portable school classrooms.

Fiscal support is expected to fund last year's AB 1571 (Villaraigosa), which authorizes grants to retrofit heavy-duty engines with low emission technology for vehicles, equipment, vessels, and locomotives. Other mobile source legislation will revisit California's Smog Check II program, which has placed in jeopardy the State Implementation Plan (SIP) for failure to meet emissions reductions promised to EPA in the early 1990s. Should the revamped smog program not fully account for the emissions shortfall, we can expect further tinkering with the stationary source program to achieve additional air pollution reductions.

Building on last year's legislation supporting the nascent emergence of alternatively powered vehicles (AB 71 Cunneen), there is talk of extending legislative support to promoting vehicles powered by fuel cells.

Hazardous Waste and Hazardous Substances Cleanup

With less money available to support its statutory mission, the Department of Toxic Substances Control (DTSC) is in need of a stable and predictable source of revenues. Due to a number of factors including shrinking hazardous waste generator fees, program revenues have dropped in recent years. The Department of Fish and Game is also experiencing unstable sources of revenues. Other funding concerns include a desire to fund the orphan share provisions enacted in last year's SB 47 (Sher), which reauthorized the California Superfund program. Not surprisingly, the funding debate for these programs will center on the relative burdens to be borne by the private and public sectors.

In order to spur more development of "brownfields," there may be legislation lowering the cleanup standard for these contaminated properties.

Land Use

Responding to unparalleled growth, traffic congestion, and shrinking farmland acreage, Assemblywoman Patricia Wiggins is planning to convene a "Smart Growth" caucus to germinate legislative ideas addressing these woes. Related legislation currently in play includes infrastructure bills to evaluate water supply and land use planning. Senator Burton's SB 1341 legislation would require the Department of Water Resources to evaluate water supplies to meet new growth, while HR 40 (Torlikson) would require the State Department of Housing and Community Development to engage in a housing /jobs balance planning exercise.

Thanks to a robust budget surplus contributing to a feeling of largess in the legislature, this could translate into a willingness to invest in purchasing and protecting wilderness and open space in California.

Repeat legislation that could be resurrected from last session could include the "Anti Big Box" legislation (AB 84 Floyd) which would have prohibited local approval of "mega"retail stores along with the reappearance of legislation attacking the police power and takings law. Finally, there may be legislation revising the LAFCO statutes.

Natural Resources

Whether the legislature should continue funding Natural Communities Conservation Programs (NCCPs) could be entertained this session with the debate turning on whether NCCPs serve as an effective tool for conservation.

Conclusion

Traditionally, the second year of a biennial session, which falls on a presidential election cycle, results in limited policy making as the legislature is often preoccupied with politics and posturing. This, combined with a centrist Governor whose agenda is largely limited to education suggests that the Y2K legislative session will be less productive than last year. With the exception of environmental initiatives linked to education, this session could repeat the fate of the 1990s and result in preserving the status quo.