BILL ANALYSIS �
AB 527
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Date of Hearing: April 29, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 527 (Beth Gaines) - As Amended: March 19, 2013
SUBJECT : Global Warming Solutions Act of 2006: Western Climate
Initiative, Incorporated
SUMMARY : Subjects Western Climate Initiative (WCI, Inc.) to the
Bagley-Keene Open Meeting Act (Bagley-Keene), the California
Public Records Act (CPRA), and an audit conducted by the State
Auditor. Prohibits the Air Resources Board (ARB) from making
any payment in support of WCI unless ARB finds that WCI has
complied with the above requirements.
EXISTING LAW :
1)SB 1018, Chapter 39, Statutes of 2012 (Resources Budget
Trailer Bill) imposes conditions on the non-governmental
entity WCI, Inc., created to assist ARB in the implementation
of AB 32.
a) Finds and declares that the establishment of WCI, Inc.
should be done transparently and should be independently
reviewed by the Attorney General for consistency with all
applicable laws.
b) Establishes the California membership of the board of
directors of WCI, Inc. as follows:
i) One appointee or his or her designee who shall serve
as an ex officio nonvoting member shall be appointed by
the Senate Committee on Rules.
ii) One appointee or his or her designee who shall serve
as an ex officio nonvoting member shall be appointed by
the Speaker of the Assembly.
iii) The Chairperson of the ARB or her or his designee.
iv) The Secretary for Environmental Protection or his or
her designee.
c) Requires ARB to provide notice to the Joint Legislative
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Budget Committee of any funds over $150,000 provided to
WCI, Inc. or its derivatives or subcontractors no later
than 30 days prior to transfer or expenditure of these
funds.
d) Exempts WCI, Inc. and its ARB and CalEPA appointees from
Bagley-Keene when performing their duties.
2)Bagley-Keene generally requires that all meetings of a state
body be open and public. Defines a "state body" to include a
board, commission, committee, or similar multimember body on
which a member of a body that is a state body serves in his or
her official capacity as a representative of that state body
and that is supported, in whole or in part, by funds provided
by the state body, whether the multimember body is organized
and operated by the state body or by a private corporation.
3)Provides pursuant to the CPRA that all records maintained by
local and state governmental agencies are open to public
inspection unless specifically exempt. Defines "public
records" to include any writing containing information
relating to the conduct of the public's business prepared,
owned, used, or retained by any state or local agency
regardless of physical form or characteristics.
THIS BILL :
1)Repeals the exemption from Bagley-Keene enacted by SB 1018 and
instead explicitly applies Bagley-Keene and CPRA to WCI, Inc.
and the ARB and CalEPA appointees.
2)Requires WCI, Inc. to be subject to any audit requested or
required by the State Auditor.
3)Prohibits ARB from making any payment to support WCI, Inc.
unless ARB finds that WCI, Inc. has complied with
Bagley-Keene, CPRA and an audit conducted by the State
Auditor.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's statement :
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Currently, actions taken by WCI, Inc. are not subject to
Open Meeting or Public Records Acts. Requests for
information from interest groups have been met with delays
and more often refusals. The board of WCI, Inc. includes
four California civil servants acting within their official
job capacity. Additionally, the majority of funding for
WCI, Inc. consists of tax dollars expended by ARB. WCI,
Inc. is clearly acting under the advisement of California
officeholders and is funded largely by state funds.
2)Background . In November 2011, the Western Climate Initiative
formed WCI, Inc., a non-profit corporation formed to provide
administrative and technical services to support the
implementation of state and provincial greenhouse gas
emissions trading programs. According to their website, WCI,
Inc. will develop a compliance tracking system that tracks
both allowances and offsets; administer allowance auctions;
and conduct market monitoring of allowance auctions and offset
certificate trading.
The Board of Directors includes officials from the provinces
of Quebec and British Columbia, and public officials from the
State of California. The public officials from the State of
California include:
Matt Rodriguez, Secretary for Environmental
Protection
Mary Nichols, Chairman of the California Air
Resources Board
Kip Lipper, staff to California State Senate
President Pro Tempore
Nancy Skinner, Member of the California State
Assembly
The Western Climate Initiative, not to be confused with WCI,
Inc., is a collaboration of independent jurisdictions working
together to identify, evaluate, and implement emissions
trading policies to tackle climate change at a regional level.
It began in February 2007 when the Governors of Arizona,
California, New Mexico, Oregon, and Washington signed an
agreement directing their respective states to develop a
regional target for reducing greenhouse gas emissions,
participate in a multi-state registry to track and manage
greenhouse gas emissions in the region, and develop a
market-based program to reach the target. In the following
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years, the Governors of Montana and Utah along with the
Premiers of British Columbia, Manitoba, Ontario, and Quebec
joined the original five states in committing to tackle
climate change at a regional level.
In July 2010, all 11 jurisdictions collaborated in the
development of the design for the WCI Regional Program, which
provides a roadmap to inform WCI partner jurisdictions as they
implement the cap-and-trade program in their jurisdictions.
All states except for California, withdrew as partners from
WCI in 2011. California, along with British Columbia,
Ontario, Quebec and Manitoba are continuing to work together,
as partners in WCI, to develop and harmonize their emissions
trading program policies.
1)Bagley-Keene. When the Legislature enacted the Bagley-Keene
in 1967, it essentially said that when a body sits down to
develop its consensus, there needs to be a seat at the table
reserved for the public. In doing so, the Legislature has
provided the public with the ability to monitor and be part of
the decision-making process. The act explicitly mandates open
meetings for California State agencies, boards, and
commissions. The act facilitates transparency of government
activities and protects the rights of citizens to participate
in state government deliberations. Therefore, absent a
specific reason to keep the public out of meetings, the public
should be allowed to monitor and participate in the
decision-making process. Similarly, the California's Brown
Act of 1953 protects citizen's rights to open meetings at the
local and county government levels.
2)Public Records Act. The CPRA establishes the right of every
person to inspect and obtain copies of all state and local
government documents and records not exempt from disclosure.
The Act requires specified state and local agencies to
establish written guidelines for accessibility of records, to
post these guidelines at their offices, and to make them
available free of charge to any person requesting that
agency's records.
3)Practical problems with applying Bagley-Keene, CPRA and State
Auditor's authority to WCI, Inc. The WCI, Inc. was given an
exemption from Bagley-Keene because of the unique composition
of the board and the vast distance between its members, which
would make it nearly impossible for WCI, Inc. to follow the
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very specific provisions of the Act. For instance, the
participating jurisdictions are geographically dispersed
throughout North America, and their budgets don't allow for
frequent travel; leading to WCI, Inc. meetings being held by
telephone conference calls. Though the Act allows for
teleconference meetings, it requires each site from which a
member of the body participates to be accessible to the
public. Similarly, some WCI, Inc. records may reside in other
states or even Canada, potentially making both public access
and enforcement impractical. Finally, according to the State
Auditor's Office, the audit provision is very problematic from
a legal/jurisdictional perspective. Although various
California public officials sit on its governing board, a law
that would extend the State Auditor's authority so that she
could audit an out of state corporation, would most likely be
held invalid if challenged. The State Auditor's Office has
proposed an amendment that would limit its authority to
contracts between the state and WCI, Inc.
In 2002, when faced with a similar situation, the Legislature
passed and the Governor signed SB 1753 (Bowen), which required
the Independent System Operator (ISO), a non-profit public
benefit corporation, to maintain open meeting standards and
meeting notice requirements consistent with Bagley-Keene, as
well as provide public access to corporate records consistent
with CPRA. WCI, Inc. is currently in the process drafting an
open meeting policy that closely resembles the ISO's policy
and is expected to be adopted by the end of this year.
4)Related Legislation. AB 245 (Grove) subjects WCI, Inc. and
its appointees to Bagley-Keene. AB 245 failed in the Assembly
Governmental Organization Committee on April 24 by a vote of
5-9.
SB 726 (Lara) subjects WCI, Inc. and its appointees to
Bagley-Keene and CPRA. In addition, the bill would require
WCI, Inc. to cease all work on behalf of the state until the
non-ex officio California membership of the board of directors
of WCI, Inc. is confirmed by the Senate. SB 726 is set for
hearing in the Senate Environmental Quality Committee on May
1.
5)Prior Legislation. SB 1018, the 2012 Resources Budget Trailer
Bill, among other provisions, exempted WCI, Inc. from
Bagley-Keene.
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6)Double referral. This bill has been double-referred to the
Assembly Judiciary Committee due to its provisions affecting
the CPRA.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092