BILL ANALYSIS Ó SB 535 Page 1 Date of Hearing: June 27, 2011 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Wesley Chesbro, Chair SB 535 (De Léon) - As Amended: June 21, 2011 SENATE VOTE : 23-15 SUBJECT : California Communities Healthy Air Revitalization Trust SUMMARY : Directs a minimum of 10 percent of non-administrative revenues generated pursuant to the California Global Warming Solutions Act (AB 32) to the California Communities Healthy Air Revitalization Trust (CalCHART) to be awarded for specified purposes to benefit socioeconomically disadvantaged communities impacted by air pollution and climate change. EXISTING LAW , under AB 32: 1)Requires the Air Resources Board (ARB) to adopt a statewide greenhouse gas (GHG) emissions limit equivalent to 1990 levels by 2020 and adopt regulations to achieve maximum technologically feasible and cost-effective GHG emission reductions. 2)Authorizes ARB to adopt fees to be paid by the sources of GHG emissions regulated pursuant to AB 32. Fee revenues must be deposited in the Air Pollution Control Fund and may be spent for purposes of carrying out AB 32. 3)Authorizes ARB to permit the use of market-based compliance mechanisms to comply with GHG reduction regulations, to be adopted by 2011 and operative by 2012, once specified conditions are met. Prior to adopting a market-based compliance mechanism, to the extent feasible and in furtherance of achieving the statewide GHG emissions limit, ARB must: a) Consider the potential for direct, indirect, and cumulative emission impacts from these mechanisms, including localized impacts in communities that are already adversely impacted by air pollution. b) Design any market-based compliance mechanism to prevent SB 535 Page 2 any increase in the emissions of toxic air contaminants or criteria air pollutants. c) Maximize additional environmental and economic benefits for California, as appropriate. 4)Further requires ARB, to the extent feasible and in furtherance of achieving the statewide GHG emissions limit, to: a) Design market-based and certain other regulations, including distribution of emissions allowances where appropriate, in a manner that is equitable, seeks to minimize costs and maximize the total benefits to California, and encourages early action to reduce GHG emissions. b) Ensure that activities undertaken to comply with the regulations do not disproportionately impact low-income communities, and complement efforts to achieve and maintain federal and state ambient air quality standards and to reduce toxic air contaminant emissions. 5)Requires ARB to ensure that the GHG emission reduction rules, regulations, programs, mechanisms, and incentives under its jurisdiction direct public and private investment toward the most disadvantaged communities in California and provide an opportunity for small businesses, schools, affordable housing associations, and other community institutions to participate in and benefit from statewide efforts to reduce GHG emissions. THIS BILL : 1)Allocates at least 10 percent of the non-administrative revenues deposited in the Air Pollution Control Fund (APCF) pursuant to AB 32 to CalCHART to provide funding to the most impacted and disadvantaged communities for programs or projects that reduce GHG emissions or mitigate direct health impacts of climate change, through competitive grants, loans, or other funding mechanisms. Projects may include "green collar" employment or training. 2)Defines "most impacted and disadvantaged communities" as either those areas having the highest 10 percent air pollution exposure and socioeconomic vulnerability within an air basin SB 535 Page 3 that does not meet one or more national or state ambient air quality standards, or those areas having the highest 10 percent socioeconomic vulnerability to direct health or environmental impacts of climate change. 3)Requires ARB to administer CalCHART funds and begin implementation of the program within 90 days of finding that more than $5 million has been deposited. Authorizes up to five percent of CalCHART funds to be spent on administration. 4)Requires ARB to conduct a public process and prepare a report regarding implementation, the types of programs and projects to be funded, the selection and oversight process, and eligibility criteria. 5)Requires ARB, in consultation with the Climate Action Team, to: a) Adopt, and update every three years, a list of the most impacted and disadvantaged communities. b) Report to the Legislature regarding the CalCHART program by September 1, 2015 and every three years thereafter. 6)Requires ARB to appoint a seven-member review panel, in consultation with the Senate pro Tempore and the Speaker of the Assembly. Each member must have demonstrated expertise, and a minimum of seven years of working experience, in the areas of air pollution, public health, energy efficiency, transportation, economics, or running a small business. Three members must have demonstrated knowledge and experience in advancing community interests in the area of environmental protection for at least seven years. 7)Requires CalCHART project awards to be approved by a majority (four members) of the review panel. 8)Provides that ARB may only approve a program or project for funding after determining that the use of moneys for that program or project is consistent with the requirements for the use of moneys derived from valid regulatory fees, as established by the California Supreme Court in Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866 and reaffirmed in California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421 (except for SB 535 Page 4 penalty moneys, if those moneys are segregated from fee moneys). FISCAL EFFECT : Unknown COMMENTS : 1)Background. AB 32 authorizes ARB to adopt via regulation "a schedule of fees to be paid by the sources of greenhouse gas emissions" and deposit revenues into the Air Pollution Control Fund. AB 32 also authorizes, but does not require, the use of market-based mechanisms to achieve GHG emission reductions, provided specified conditions are met. Thus far, ARB has proposed to use its fee authority only for the limited purpose of funding its own and other state agencies' AB 32 implementation costs, and to repay loans of other state funds that previously have been approved by the Legislature for these purposes - amounting to not more than $55 million annually. However, it's possible that a more expansive fee on GHG emitters, the auction of GHG emission allowances, or another market mechanism will produce significantly higher revenues over the course of AB 32 implementation. AB 32 also requires ARB to ensure that the GHG emission reduction rules, regulations, programs, mechanisms, and incentives under its jurisdiction direct public and private investment toward the "most disadvantaged communities" in California and provide an opportunity for small businesses, schools, affordable housing associations, and other community institutions to participate in and benefit from statewide efforts to reduce GHG emissions. With regard to any market-based compliance mechanisms, ARB is required to: "consider the potential for direct, indirect, and cumulative emissions impacts from these mechanisms, including localized impacts in communities that are already adversely impacted by air pollution." In addition, in adopting and implementing AB 32, ARB is required to "ensure that activities undertaken to comply with the regulations do not disproportionately impact low-income communities." With regard to "co-pollutants," AB 32's GHG-reduction regulations must be designed and implemented to "prevent any increase in the emissions of toxic air contaminants or criteria air SB 535 Page 5 pollutants" and "complement efforts to achieve and maintain federal and state ambient air quality standards and to reduce toxic air contaminant emissions." In December 2010, ARB adopted a proposed cap-and-trade program that would apply to an estimated 600 regulated entities engaged in stationary combustion, cement manufacturing, cogeneration, petroleum refining, hydrogen production, aluminum production, facility operators calcining carbonates, CO2 supplier or transfer recipient, electricity generation, glass production, iron and steel production, lime production, natural gas transmission and distribution, nitric acid production, oil and gas extraction field operation, production of industrial gases, pulp and paper production, soda ash production, electricity deliverers, transportation fuel deliverers, and natural gas deliverers. In a cap-and-trade program, a limit, or cap is put on the amount of pollutants (GHGs) that can be emitted. Each allowance equals one metric ton of carbon dioxide equivalent. The total number of allowances created is equal to the cap set for cumulative emissions from all the covered sectors. These allowances may be auctioned and/or freely given to companies or other groups. In addition to allowances, emissions reductions from sources that are outside the cap coverage, called offsets, could be authorized. This would allow emissions in the capped sectors to exceed the allowances issued. After initial distribution of allowances-or in the use of offsets-compliance instruments may be traded among entities. At the end of each compliance period, covered entities are required to turn in, or surrender, enough compliance instruments to match their emissions during this time period. ARB has proposed to give allowances to regulated entities during the first, three-year compliance period, but eventually, sale of allowances by ARB could generate significant revenues that would be deposited in the Air Pollution Control Fund and subject to appropriation by the Legislature. Although slated for final adoption later this year and implementation beginning in 2012, ARB's proposed cap-and-trade program has been sidetracked by a recent court ruling in a lawsuit filed by environmental justice groups alleging deficiencies in ARB's CEQA analysis. On May 20, the San Francisco Superior Court, in Association of Irritated SB 535 Page 6 Residents, et al v. ARB, ruled that ARB had failed to comply with CEQA in adopting its AB 32 Scoping Plan and enjoining any further cap-and-trade rulemaking until ARB remedies its CEQA analysis. The court found that ARB's discussion of alternatives was inadequate and that ARB improperly approved the Scoping Plan prior to completing its environmental review. On June 13, ARB released a revised alternatives analysis intended to comply with the Superior Court ruling, which is scheduled for board consideration in August. ARB has also appealed the ruling. 2)Purpose of the bill. According to the author: Currently, ARB is authorized to collect revenues from regulated GHG emitters through a market-based mechanism. As directed by AB 32, revenues collected would be deposited into the Air Pollution Control Fund. The problem is that AB 32 did not provide a definition for California's most impacted and disadvantaged communities, nor direction on how the state will mitigate adverse impacts from climate change in these communities, nor direction on how the state will ensure these communities can participate in and receive investments from activities taken pursuant to Assembly Bill 32 and not experience disproportionate impacts. SB 535 ensures that as California takes steps to address global warming, we invest in the neighborhoods that continue to suffer from higher levels of pollution and who are least able to confront the expected impacts of the climate crisis. SB 535 outlines a process to identify disadvantaged communities and allows for a periodic modification, when necessary. It requires that a minimum of ten percent of revenues deposited in the Air Pollution Control Fund pursuant to AB 32, other than administrative fees, to be allocated to projects that reduce greenhouse gas emissions and mitigate health impacts in disadvantaged communities. The projects envisioned will provide environmental and health benefits, and may include: energy efficiency upgrades, deployment of pollution reduction technology and investments in transit. Additionally, a portion of funds could be used to help these communities tackle the climate crisis, including anticipated heat waves and rising sea levels. SB 535 Page 7 3)Where will the funds come from? As noted above, non-administrative revenues in excess of $5 million are necessary to initiate implementation of the CalCHART program. There is no currently-operative source for these revenues. It could come from a more expansive regulatory fee (or "carbon tax") on emitters. However, given ARB's intentions and actions thus far, revenues are most likely to come from ARB's direct sale of emission allowances if a cap-and-trade program is implemented. The amount of revenue is highly uncertain and depends on several variables, primarily the amount of allowances sold and allowance price. The range of estimated funds available to CalCHART (assuming the $5 million trigger is achieved) is $500,000 to well over $1 billion. 4)Where will the funds go? The bill establishes general criteria for distribution of funds and very broad criteria for project eligibility. The distribution criteria (in the definition of "most impacted and disadvantaged communities") targets areas with a combination of high air pollution exposure and poverty. Although there is room for interpretation how the criteria is applied, this is most likely to be urban areas near ports, major industrial sources, freeways and/or railyards, as well as densely-populated communities in the Central Valley. Funds must go to projects to "reduce (GHG) emissions or mitigate direct health impacts of climate change, although the bill also permits "green collar" employment or training, which probably wouldn't be otherwise eligible as a direction reduction or mitigation. Within the broad boundaries of these criteria, the bill gives significant discretion to ARB and the review panel to decide how to spend the funds (subject at least to annual budgetary review of the program by the Legislature). 5)Should the review panel decide project awards? The June 21 amendments to this bill restore the 10 percent allocation previously removed when the bill was approved by the Senate Appropriations Committee and create a review panel which would have to concur with ARB in the significant aspects of CalCHART implementation, including identification of eligible communities and individual project awards. As a matter of governance, it seems unusual to subordinate the ARB to a panel that ARB itself is required to appoint. The author and the committee may wish to consider amending the bill to limit the review panel's role to reviewing and making recommendations regarding program planning and award criteria, but eliminate SB 535 Page 8 its power to approve and reject project awards. Alternatively, if the panel is to have a decision-making role, including approving project awards, the author and the committee may wish to consider adopt conflict standards to assure appropriation separation between the panel members and recipients. 6)Prior legislation. Last year, the Governor vetoed AB 1405 (De Léon), which directed a minimum of 10 percent of revenues generated pursuant to AB 32 to a Community Benefits Fund to be awarded by the Secretary for Environmental Protection to benefit disadvantaged communities. In his veto message, the Governor stated: This bill creates the California Climate Change Community Benefits fund by requiring a minimum of 10% of revenues from the sale of compliance instruments for market-based compliance mechanisms under AB 32 to be deposited into the fund. When the Legislature passed and I signed AB 32, we made a commitment to California's disadvantaged communities that we would ensure that the impacts of climate change and the impacts of reducing climate change would not fall disproportionately on their communities. Throughout the (ARB) process, they have kept this commitment in mind and have fashioned every aspect of this program in a manner that attempts to lessen any disproportionate impact on these communities. I am confident ARB with keep on this path as they continue the important work of fashioning market-based mechanisms that will reduce the burden on California's business community while still achieving our climate change reduction goals. To that end, this bill is premature. Unfortunately, the bill proposes to spend money that does not currently exist and might not ever exist in a fund controlled by the state of California. Important work continues at ARB to determine the most effective and least costly manner to implement AB 32. I encourage the supporters of this bill to work in earnest with ARB as they build this program. There will be a time SB 535 Page 9 to have this discussion. Unfortunately, now is not that time. REGISTERED SUPPORT / OPPOSITION : Support Asian Neighborhood Design Asian Pacific Environmental Network Asian Pacific Policy and Planning Council Breathe California California Environmental Justice Alliance California Interfaith Power and Light California League of Conservation Voters California League of Food Processors California Pan-Ethnic Health Network Catholic Charities, Stockton Diocese City Heights Community Development Corporation Coalition for Clean Air Communities for a Better Environment Community Action to Fight Asthma East Yard Communities for Environmental Justice Environment California Environmental Defense Fund Environmental Health Coalition Global Alliance for Incinerator Alternatives Greenlining Institute Latino Coalition for a Healthy Environment Los Angeles County Bicycle Coalition Natural Resources Defense Council People Organizing to Demand Environmental & Economic Rights (PODER) San Diego Coastkeeper Sierra Club California Southeast Asian Community Alliance Tofa, Inc. Transform Trust for Public Land Union of Concerned Scientists Opposition American Council of Engineering Companies - California Building Owners and Managers Association California Building Industry Association SB 535 Page 10 California Chamber of Commerce California Council for Environmental and Economic Balance California Farm Bureau Federation California Forestry Association California Large Energy Consumers Association California League of Food Processors California Manufacturers & Technology Association California Metals Coalition California Retailers Association Cal-Tax Chemistry Industry Council of California Consumer Specialty Products Association International Council of Shopping Centers NAOIP - Commercial Real Estate Development Association Oxnard Chamber of Commerce Western Growers Western States Petroleum Association Western Wood Preservers' Institute Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916) 319-2092