BILL ANALYSIS 1 ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2009-2010 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 226 HEARING DATE: June 23, 2009 AUTHOR: Ruskin URGENCY: No VERSION: June 16, 2009 CONSULTANT: Bill Craven DUAL REFERRAL: Judiciary FISCAL: Yes SUBJECT: Coastal resources: California Coastal Act of 1976: enforcement. BACKGROUND AND EXISTING LAW The California Coastal Act (Act) vests in the California Coastal Commission (CCC) regulatory authority for specified development activities in the designated coastal zone. Courts are authorized to impose civil liability on those who violate the act. The CCC has authority to issue a cease and desist order to those who are developing in the coastal zone without a permit. It may also issue a restoration order when development has occurred without a permit and continuing resource damage results. Only superior courts are authorized to impose civil penalties on those who violate the Act. The CCC has no civil penalty authority. PROPOSED LAW This bill would provide that a person who violates the act may be subject to an administrative civil penalty that may be imposed by the commission at a public hearing. The penalties would be no less than $5000 and no more than $50,000 per violation. (A superior court may impose civil penalties on any person in violation of the Coastal Act of between $500 and $30,000; additional penalties between $1,000 and $15,000 per day for each day in which a violation persists may be imposed when anyone knowingly and intentionally violates the Coastal Act, plus exemplary damage, where appropriate.) The Commission would be required to consider the nature, circumstance, extent, and gravity of the violation; whether the violation is susceptible to restoration or other remedial measures; the sensitivity of the resource affected by the violation; and the cost to the state of bringing the action. The CCC would also consider whether the violator undertook voluntary restoration or remedial measures, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. Violators who commit minor violations that are corrected quickly would not be subject to the civil penalty provisions. The CCC would be able to attach a lien on the property on which the violation occurred in the amount of the penalty. It would also be able to sue to collect unpaid civil penalties. Civil penalties would be deposited into an existing Coastal Act Services Fund and would be subject to appropriation by the Legislature. A violator would not be subject to monetary liability from both the CCC and a court for the same violation. In response to a LAO recommendation, this bill would terminate the present practice of transferring all CCC enforcement revenues to the Coastal Conservancy. The conservancy uses these revenues in its coastal access program. This would result in a slight decrease ($134,000) in this program, based on normal annual receipts. This fund, however, requires that the conservancy retain $500,000 from this fund for that purpose, but any remainder would be used by the CCC for its enforcement program and other functions. All enforcement revenues are transferred to the Coastal Conservancy. ARGUMENTS IN SUPPORT 1. According to the author's office, the CCC does not have credible enforcement capability. It does not have existing authority to impose civil penalties, and thus the Coastal Act contains no effective deterrent against would-be violators. The author provided considerable academic research to support the proposition that a credible deterrent can greatly increase the ability of an environmental agency to obtain voluntary compliance. 2. The author also contends that the CCC is handicapped by its current reliance on the Attorney General to bring actions for civil penalties. This is a time-consuming and resource-intensive process. Since 2003, the Commission has only pursued four cases in court (though it also pursues cross-complaints when sued.) 3. The CCC is one of the few major regulatory agencies in California that lacks the authorization to impose civil penalties. Agencies such as the San Francisco Bay Conservation and Development Commission (BCDC), the State Water Resources Control Board (and regional boards), State Lands Commission, Department of Fish and Game, California Energy Commission, Air Resources Board, Department of Forestry, Department of Toxic Substances Control, Integrated Waste Management Board, Department of Health Services, Department of Food and Agriculture, Structural Pest Control Board, regional air districts, and local agencies all have administrative civil penalty authority. BCDC's authority to regulate development along San Francisco Bay serves as the best analog to the work of the Commission. Using its civil penalty authority, BCDC has been successful at discouraging and resolving the vast majority of violations without resorting to litigation. 4. The Legislative Analyst Office (LAO) recommended that the CCC should have civil penalty authority in its 2008-09 analysis of the state budget. Senate Budget Subcommittee #3 adopted this recommendation, but it was later dropped from the budget. 5. Are Cease and Desist Orders Inadequate? The CCC has been able to resolve some violations through its existing authority to issue cease and desist orders. In those cases, violators may pay a fine, although a lesser fine than could be imposed by a court. Violators who choose not to pay a fine may also be aware that the CCC may not have the resources to pursue a court-ordered penalty. This is especially true at the present time when the CCC, because of budgetary cuts, has only one enforcement official for the entire state and a current backlog of 1,300 cases. Since 1985, revenues in the CCC enforcement account have averaged $134,000. ARGUMENTS IN OPPOSITION A coalition of opponents argues that this bill "creates a 'bounty hunter' dynamic" that would encourage the CCC to seek large penalties and fees to support its budget." Rather than recognizing that the CCC could provide more complete and timely services to applicants and local governments if it received an adequate budget, the opposition imagines that a basic enforcement provision would become some huge budget supplement for the CCC. An administrative penalty would remain subject to judicial review in appropriate "bounties" would likely be struck down. In a real-world comparison, the Bay Conservation and Development Commission which has similar authority to the CCC in the Bay Area has had this enforcement authority for years. Furthermore, any administrative penalty would be subject to judicial review; the Commission argues that any penalty sought as a "bounty" would not withstand this review. It is also worth noting that BCDC received $113,000 in civil penalties last year--hardly a "bounty" that would reasonably be feared by the opposition. COMMENTS By arrangement with the author and the Senate Judiciary Committee, the following technical amendments will be adopted when the bill is heard in Judiciary. This first removes the concerns of the California Land Title Association. The second removes the opposition of the local governments. SUGGESTED AMENDMENTS AMENDMENT 1 Page 3, line 10, (e) Failure to pay the fine imposed by the commission shall allow the commission tofilerecord a lien on the property in the amount of the penalty assessed by the commission. This lien shall have the force, effect, and priority of a judgment lien. AMENDMENT 2 Page 3, line 16, add: (g) "Person" for the purposes of this section does not include local governments, special districts, or agencies thereof when acting in their legislative and adjudicative capacities. SUPPORT California Coastal Commission California Coast Keeper Alliance Environmental California Environmental Defense Center Green California Heal the Bay Natural Resources Defense Council Planning and Conservation League Sierra Club California. OPPOSITION California Land Title Association - unless amended League of Cities-unless amended American Council of Engineering Companies of California California Association of Realtors California Business Properties Association California Business Industry Association California Chamber of Commerce California Manufacturers and Technology Association.