BILL ANALYSIS AB 32 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2005-2006 Regular Session BILL NO: AB 32 AUTHOR: Nunez and Pavley AMENDED: June 22, 2006 FISCAL: Yes HEARING DATE: June 26, 2006 URGENCY: No CONSULTANT: Bruce Jennings SUBJECT : CALIFORNIA GLOBAL WARMING SOLUTIONS ACT OF 2006: GREENHOUSE GASES SUMMARY : Existing law : 1) Provides for the California Climate Action Registry and the voluntary reporting of greenhouse gas emissions (GHGs) to establish baselines against which future GHG emission reduction requirements may be applied. Chapter 1018, Statutes of 2000 (SB 1771, Sher) and Chapter 769, Statutes of 2001 (SB 527, Sher). 2) Requires the California Air Resources Board (ARB) to regulate GHGs emitted by passenger vehicles and light-duty trucks to achieve maximum feasible reductions (Chapter 200, Statutes of 2002, AB 1493, Pavley). 3) Requires ARB to develop regulations to prevent diesel truck engine idling at ports pursuant to Chapter 1129, Statutes of 2002 (AB 2650, Lowenthal). 4) Requires the state's retail sellers of electricity to achieve at least 20 percent of energy sales from renewable sources, pursuant to Chapter 516, Statutes of 2002 (SB 1078, Sher). 5) Requires the California Energy Commission (CEC) to develop and adopt by June 30, 2007, a state plan to increase the use of alternative transportation fuels to achieve multiple objectives, including the reduction of GHG emissions, AB 32 Page 2 pursuant to Chapter 371, Statutes of 2005 (AB 1007, Pavley). This bill : 1) Enacts the California Global Warming Solutions Act of 2006. 2) Requires the ARB to report and verify greenhouse gas emissions. 3) Authorizes the ARB to monitor and implement regulations to reduce emissions of gases that cause global warming. 4) Requires the ARB to adopt a statewide greenhouse gas emissions limit that would gradually impose a limit between 2010 and 2020. 5) Requires the Governor to establish an interagency task force to coordinate investments of state moneys and state programs to reduce emissions of greenhouse gases, promote economic growth, make information publicly available to assist sources of greenhouse gases to meet the requirements of this act, and related activities. 6) Requires, in place of existing requirements on CEC, the CEC to update its inventory of emissions of greenhouse gases to supplement information collected by the ARB to maintain a reasonably comprehensive inventory of California's emissions of greenhouse gases. COMMENTS : 1) Background: The State of Climate Change . There is broad scientific consensus that rising concentrations of GHGs in the atmosphere are resulting in climate changes that will continue to accelerate during this century. A statement in June, 2006 from the Attorney General's Office, provides a succinct statement about the threats from global warming. The statement was provided in support of the Public Utility Commission's promulgating a rule to integrate greenhouse gas emission standards into procurement policies and included the following findings: AB 32 Page 3 "?the best available science establishes that GHG-induced climate change is occurring and is fast approaching a critical "tipping point," and that California has a substantial stake in taking every possible action at the earliest juncture to mitigate the potentially devastating impacts - economic as well as environmental - of climate change? Impacts from anthropogenic CO2 emissions that have occurred, are occurring, and will occur, include: temperature increases, heat waves, loss of Artic ice and habitat, loss of Antartic ice, melting of glaciers and related glacial lake outburst flows, loss of snowpack in California and elsewhere, changes in precipitation patterns, increased hurricane intensity, sea level rise and coastal flooding, public health harms such as increased heat-related illness and smog, harm to habitats, and the potential for substantial social upheaval resulting from significant environmental changes. ?[a one meter sea level rise threatens $48 billion of commercial, industrial, and residential structures in the San Francisco Bay]? In litigation between the automakers and the State of California, the automakers have challenged the authority of the State to regulate greenhouse gases from mobile sources. In response to the automakers claims, the State has gathered declarations from some of the world's leading climate scientists concerning impacts of anthropogenic greenhouse gas emissions on climate broadly and on California in particular. Many of these declarations, which starkly establishes the threat to the world and to California: At the same time as climate change is likely to cause a significant reduction in California's effective water supply, it is also likely to cause an increase in California's demand for water because of the sharp increase in summertime temperatures. The effects of global warming are already observed in the decrease in snow water equivalent and in the earlier AB 32 Page 4 snowmelt and streamflow timing of the past several decades. Climate change will increase global sea levels?Sea level rise will have two effects (a) ?increase the intrusion of salt water [into the Sacramento delta]; and (b) increase water levels in the channels [of the Delta] and so threaten the integrity of the levees in the Delta." The findings strongly suggest that a climate change consistent with any of the four [commonly employed] climate projections?will lead to a significant increase in heat-related deaths. This increase will number in the thousands for the five California cities [Fresno, Los Angeles, Riverside, Sacramento and San Francisco] over a period of a decade. If additional human-made global warming (above that in 2000) is so large, say 2-3 degrees C, that the expected equilibrium (long-term) sea level rise is of the order of 25 meters, there would be a potential for a continually unfolding planetary disaster of monstrous proportions. 2) Background: The Governor's Executive Order . In June, 2005, the Governor issued an executive order that established the following GHG emission reduction targets for the state: By 2010 - reduce GHG emissions to year 2000 levels. By 2020 - reduce GHG emissions to year 1990 levels.. By 2050 - reduce GHG emissions to 80 percent below year 1990 levels. As noted in a report by the Legislative Analyst, between 1990 and 2000, annual California GHG emissions increased by approximately 13 percent, from about 396 million metric tons in 1990 to 449 million metric tons in 2000. The Governor's Climate Action Team has estimated that achieving the Governor's GHG reduction targets for 2010 and 2020 will result in GHG emissions that are 11 percent and 29 percent, respectively, below that which would otherwise occur according to "business as usual" (BAU). The initial draft of recommendations drafted by the Climate AB 32 Page 5 Action Team included four actions essential to meeting the Governor's GHG reduction goals: a) Require climate change emissions reporting from all emitters of GHGs, starting with the largest emitters. b) Levy fees on gasoline and diesel sales to reduce demand for these fuels and to fund promotion of alternative, cleaner fuels. c) Coordinate state investment funds to reward industry development of emission reduction technologies; and, d) Encourage companies to take early action to reduce their climate change emissions in anticipation of subsequent state, federal, or international emissions reduction programs. 3) Defining Greenhouse Gases . Although GHG's are regularly defined in accordance with five to six gases, there are other recognized contaminants that affect climate change (e.g., carbon black, and other chemicals, substances, and gases). Because of the long-life of certain contaminants on the atmosphere, a broadened definition may be especially important for making early changes that may affect the atmosphere for decades to come. Indeed, Jim Hansen, who is among the world's foremost climatologists, has recently concluded that the "total forcing by non-CO 2 GHGs equals that of CO 2," and that the climate changes to date has been caused mainly by non-CO 2 pollutants, not CO 2. It is recommended that the definition of greenhouse gases be expanded with a fuller listing of an array of contaminants having an impact on climate are inventoried and regulated, including those non-Kyoto contaminants having a potential to contribute to climate change. 4) Flexible Compliance Mechanisms . The terms "flexible compliance mechanisms" play a central role in AB 32, and is largely employed to refer to "banking, borrowing, and market mechanisms that provide compliance flexibility that AB 32 Page 6 are required to ensure that their greenhouse gas emissions do not exceed their emissions allowances." The bill's use of "flexible compliance mechanisms" at first glance appears to be contingent on the state board evaluating and reporting on those mechanisms "most beneficial in achieving reductions in GHGs." As a study. Following this study, yet apparently irrespective of the study's findings, by January 2009, the state board is instructed to adopt regulations providing flexible compliance mechanisms, including banking, borrowing, and other market mechanisms as a means for entities to comply with controlling GHG emissions as a basis for meeting emissions allowances. Ergo, flexible compliance, appears largely to mean "banking, borrowing, and other market mechanisms." Flexible compliance mechanisms are also related to another central term in the bill, "emissions reduction strategies," which includes programs, measures, standards, and flexible compliance mechanisms that can be used with respect to sources or categories of sources. The result is that "emissions reductions strategies" are also linked to banking, borrowing, and other market mechanisms. AB 32, as a consequence, nests an important part of the control of GHGs within emission reduction strategies that are linked with flexible compliance mechanisms; which in turn, are largely defined as market mechanisms. Putting aside for a moment the question of whether AB 32 should rely so exclusively on market mechanisms, two questions are begged by constructing AB 32 in such a fashion: First, what is the legal basis for the state to enforce (or a failure to achieve) GHG emission reductions according to the bill's provisions? While the bill constructs a penalty provision for violations of the ARB's regulations (Section 42878.5), unresolved is whether the state, in fact, exercises any authority over flexible compliance strategies or flexible compliance mechanisms to the extent that these are rooted in private sector activities, such as the AB 32 Page 7 banking and borrowing of emissions credits for which there appears to be little, if any, applicable regulatory law. Second, how does the bill ensure that flexible compliance mechanisms will yield reductions in GHG emissions? The bill appears to presume that banking, borrowing and other market mechanisms can be expected to yield emissions reductions. Is there any evidence to support this proposition? In light of serious criticisms of such schemes, including the recent collapse of the European market for emissions trading, this is a subject deserving much more scrutiny and consideration before the state initiates any regulations founded on this approach. Moreover, the use of flexible compliance mechanisms has an uncertain relationship to the ARB's current authority and programs to achieve and maintain clean air (e.g., the issuance of permits, the use of best achievable control technologies). The use of flexible compliance mechanisms may set in motion a set of practices for which the state may have only limited legal authority and considerable uncertainty as to who is responsible for achieving what reductions. The sponsors have expressed an interest in providing some manner of flexibility for achieving reductions in GHGs. Rather than employing an approach that is poorly defined, legally uncertain, and operates in a market context largely uncontrolled by state law, an alternative would be to use certain aspects of the approach adopted in another enacted statute, AB 1493 (Pavley); which contains a provision allowing for an alternative method for complying with the regulations governing emissions from specific sources that achieve the equivalent, or greater, reduction in emission of greenhouse gases, as those requirements contained in regulation (see, for example, Section 43018.5 (c ) (3). By comparison, this "flexibility" contained in AB 1493's provisions is much more carefully integrated with the existing authority of the state board, including its enforcement authority. It is recommended that the terms "flexible compliance mechanisms" be removed from the bill and that the AB 32 Page 8 appropriate section(s) be redrafted to clarify that the use of any alternative to compliance be integrally linked to existing air quality laws and regulations. 5) Who Is Accountable for Achieving GHG Emission Reductions? As amended, it is unclear who is subject to the reductions to be achieved by 2020 and by what authority. Consider, for example, the bill's reference to "electricity provider." Does a "source" include an individual power plant, a company owning multiple power plants, power plants in general, or a category of sources? It is similarly unclear whether the reductions are to be achieved by individual emitters, companies, or sectors. For this particular case, unless the reference to electricity provider is essential for the operation of the bill, it is recommended that this provision be eliminated from the bill. The lack of clarity, however, does not simply extend to the realm of electricity providers. The bill, as amended, strongly appears to lay the foundations for market mechanisms, including potentially trading. The adoption of regulations to limit GHGs, for example, is explicitly based on banking, borrowing, and market mechanisms. The same regulations also include the "distribution of emissions allowances," or authorizations to emit a GHGs. Furthermore, the regulation's reduction strategies are evaluated with respect to their "cost-effectiveness," a term that appears to discriminate against controls that may be more expensive in the short run, but protective of the environment by a longer term analysis. Should AB 32 be establishing a regulatory approach that is so strongly oriented toward market mechanisms? The questionable role of market mechanisms is not just whether these have given rise to climate change, but the equally important question of how such language comports with California's air quality, environmental, and other laws provide clear rules for reducing GHG emissions while protecting public health and the environment. The variety of poorly defined terms, and especially the proliferation of terms referring to market mechanisms, AB 32 Page 9 casts considerable doubt over the question of who is responsible for reducing GHG emissions and what is the state's authority in this regard. The authors' offices have elsewhere explained that various analytics must be performed prior to the adoption of regulations or other rules advancing trading or similar market mechanisms as a primary approach for controlling GHG emissions. It is recommended that the relevant provisions be redrafted to clarify that before adopting regulations to implement flexible compliance mechanisms, a thorough review and justification be established for the use of specific alternative compliance mechanisms and that these be integrated with existing law; and, that the surrounding provisions be revised accordingly, without introducing a new set of terms that only confuse who is subject to the reductions and what are their responsibilities under state law. (see the next section) 6) Streamlining the Collection of Information: Avoiding Duplication of Effort . Local air districts and ARB have existing authority and responsibilities under state and federal law (the Clean Air Act) to collect emission information for any air contaminant. Together, ARB and the air districts have spent decades developing air emission assessment and reporting protocols, coordinating with the US EPA and other stakeholders to ensure consistent, high quality data. These inventories are used for a variety of purposes, including the development of air quality management plans, to develop potential control measures, to analyze new source impacts, to determine control program effectiveness, to predict future air quality through modeling analyses, and to determine compliance by emission sources. To this extent, the local air districts, in conjunction with the ARB, possess a capability for collecting, auditing, inspecting, and enforcing requirements in accordance with a facility specific inventory of information. Air district permits also provide a basis for assisting ARB with ensuring that emission reductions are verifiable, permanent and quantifiable, and that data collection and reporting is enforceable. Tens of thousands of facilities are currently reporting annual emissions data to local districts, AB 32 Page 10 including the largest pollution sources in the state and those likely to be included in any mandatory GHG inventory process. Additionally, given the threats posed by additional air contaminants affecting global climate (see Comment on defining GHGs), the ability of California to act decisively on these gases and particles may hinge on utilizing the existing authority provided by the State's air quality laws. It is recommended that the relevant provisions be amended to allow air districts, under the direction of ARB, to collect information on GHGs to assist with the compilation of a comprehensive statewide data base and to ensure that reductions are verifiable, permanent, and quantifiable. 7) Transportation Sector Reductions: the Problematic Implementation of Existing Law . Over the decades, whenever California has pursued path-breaking legislation, there have often been corresponding efforts to disrupt the implementation of such measures. Such is currently the case with AB 1493, the measure authored by Assembly Member Pavley requiring automobiles sold in California after 2009 to meet specified emission standards. Challenges to AB 1493 are especially significant since the state's ability to curtail GHG emissions from the transportation sector largely depend on successful implementation of AB 1493. If AB 1493 is not fully and expeditiously implemented, the state's ability to attain the necessary reduction of GHG's will likely be seriously compromised. It is recommended that AB 32 be amended to allow for the implementation of a specific, alternative provision that would become operative should AB 1493 fail to be implemented according to its statutory deadlines and/or California fails to achieve the necessary reductions in GHG emissions in the transportation sector. Such a provision would provide broad authority to ARB to institute necessary measures to compensate for the loss of anticipated reductions from the failure of AB 1493's full implementation, including the authority to impose a surcharge on petroleum fuels produced or imported into the AB 32 Page 11 state. Additionally, a severability clause should be added to the bill. 8) Additional Issues for Consideration: Reviewing 2020 Objectives Based on New Information . As climate scientists are noting with increasing regularity, the observations of global climate changes are being rapidly revised; and unfortunately determining that conditions are generally worsening from even very recent scientific findings. In this regard, the Governor's objectives could prove to be considered too modest with the appearance of new information. It is recommended that the bill be amended to require a review of the adequacy of the 2020 objectives based on indications of worsening climate conditions, including measurements of atmospheric levels of GHG's, Sierra snow pack, and other observations of global climate change as noted by the IPPC. 9) Additional Issues for Consideration: Establishing a Binding Policy for Agencies: Amending the Government Code . It is recommended that the current bill language regarding agency obligations to conduct GHG emission reductions be amended to add a new Government Code provision and clarify that GHG policy is binding on all state agencies. 10)Additional Issues for Consideration: Support for Local Initiatives . There are currently more than 50 cities in California that have pledged to find ways to reduce GHGs at a rate exceeding the Governor's plan. It is recommended that AB 32 be amended, authorizing ARB (or another, more agency) to provide assistance to cities and counties in their efforts to achieve GHG reductions and to provide a common protocol for collecting information on inventories. 11)Additional Issues for Consideration: State & Federal Authorities . AB 32 currently delegates to the ARB the determination of whether to implement the program, if there is a federally enacted statute. Alternatively, it might be superior to allow ARB to file a petition with the Legislature, establishing the reasons supporting the AB 32 Page 12 suspension of one or more provisions of law and to clarify that such a suspension rests with the Legislature. 12)Technical/Clarifying Amendments . The authors have offered a number of technical and clarifying amendments which will be integrated with a series of such amendments that are also being prepared by the committee staff. 13)Related Legislation . In the current session, there are more than three dozen measures that relate broadly to issues involving climate change. Among these are: SB 107 (Simitian). Accelerates RPS to require sellers of electricity to procure at least 20% of their retail sales from renewable power by 2010 instead of 2017. SB 1250 (Perata). Revises the public interest energy research, demonstration, and development program; the renewable energy resources program, including the purposes for which the money in the Renewable Resource Trust Fund may be used. Makes other changes as well, including to the Reliable Electric Service Investments. SB 1368 (Perata). Requires the CEC to set emission (e.g., pollution) standards for those entities providing electricity to the state. Requires the California Public Utilities Commission to prohibit electricity providers and corporations from entering into long-term contracts which do not meet the CEC's standards. 1) Referral to Senate Rules Committee . Should this measure be approved by this committee, the do pass motion must include the action to re-refer the bill to the Senate Rules Committee. SOURCE : Natural Resources Defense Counsel and Environmental Defense SUPPORT : American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO American Lung Association of CA Agoura Technologies AB 32 Page 13 Baykeeper Bluewater Network California Church Impact California Catholic Conference of Bishops California League of Conservation Voters California Nurses Association California Ski Industry Association California Wind Energy Association Californians Against Waste CalWind Resources, Inc. Center for Environmental Health Christopherson Homes, Inc. Clean Power Campaign Climate Protection Campaign (600 signatures) Coalition for Clean Air Codding Investments Inc. Community Action to fight Asthma Community Fuels Congress of the United States Congressman George Miller East Bay Municipal Utility District Endangered Habitats League Energy Solutions Environment California Environmental Entrepreneurs (E2) (160 individuals - 700 members) Environmental Justice Coalition for Water Global Green Ion America KEMCO Kirsh Foundation KyotoUSA Literacy for Environmental Justice Marin Municipal Water District Mendocino Wine Company Natural Resources Defense Council Oak Creek Energy Systems, Inc. Pacific Forest Trust Planning and Conservation League Sacramento Metropolitan Air Quality Management District San Gorgonio Farms, Inc. Santa Clara Valley Water District AB 32 Page 14 Santa Cruz City Council Senator Diane Feinstein Sierra Club California Sierra Club-Loma Prieta Chapter Sonoma Wineco Straus Family Creamery Turtle Island Restoration Network VentureSpark (SF) Union of Concerned Scientists Waste Management Westminster Presbyterian Church Whitewater Maintenance Corp. Witt Rylander Advertising Working Assets Individuals (89) (213 emails) Cities/Counties/Towns of : Chino, Chula Vista, Cloverdale, Cotati, Fairfax, Hayward, Healdsburg, Huntington Park, Monterey Park, Morgan Hill, Oakland, Petaluma, Pleasanton, Rialto, Rohnert Park, Sacramento, San Francisco, San Luis Obispo, San Mateo, Santa Cruz, Santa Monica, Santa Rosa, Sebastopol, Sonoma, South San Francisco, Stockton, Sunnyvale, West Hollywood, Contra Costa County, Marin County Supervisors, Town of Windsor, County of Sonoma OPPOSITION : BP America California Cement Manufacturers Environmental Coalition California Chamber of Commerce California Council for Environmental & Economic Balance California Nevada Cement Promotion Council Milpitas Chamber of Commerce Pacific Gas and Electric Company Silicon Valley Leadership Group Western States Petroleum Association SEECalifornia Coalition: Agricultural Council of California Association General Contractors of California Inc. AB 32 Page 15 California Business Roundtable California Business Properties Association California Chamber of Commerce California Farm Bureau Federation California Forestry Association California Grocers Association California Hotel & Lodging Association California Independent Petroleum Association California Manufacturers & Technology Association California Nevada Cement Promotion Council California Retailers Association Center for Energy and Economic Development Engine Manufacturers Association Rubber Manufacturers Association Western Growers