BILL ANALYSIS �
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THIRD READING
Bill No: AB 527
Author: Beth Gaines (R)
Amended: 5/7/13 in Assembly
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 9-0, 6/26/13
AYES: Hill, Gaines, Calderon, Corbett, Fuller, Hancock,
Jackson, Leno, Pavley
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 76-0, 5/30/13 - See last page for vote
SUBJECT : California Global Warming Solutions Act of 2006:
Western
Climate Initiative, Inc.
SOURCE : Author
DIGEST : This bill repeals the exemption from the Bagley-Keene
Open Meeting Act (Bagley-Keene) enacted in 2012 for the Western
Climate Initiative (WCI, Inc.) and provides that a contract
between the state and WCI, Inc. shall be subject to audit by the
State Auditor.
ANALYSIS :
Existing law:
1.Imposes conditions, pursuant to SB 1018, (Senate Budget and
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Fiscal Review Committee, Chapter 39, Statutes of 2012) on the
non-governmental entity WCI, Inc., created to assist the Air
Resources Board (ARB) in the implementation of the California
Global Warming Solutions Act of 2006 (AB 32, N��ez, Chapter
488).
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 specified.
C. Requires ARB to provide notice to the Joint Legislative
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 California
Environmental Protection Agency appointees from
Bagley-Keene when performing their duties.
1.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.
2.Provides pursuant to the California Public Records Act (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.Removes the Bagley-Keene exemption for the WCI, Inc.
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2.Requires that a contract between the state and the WCI, Inc.
be subject to audit by the California State Auditor.
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 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
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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.
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 Bagley-Keene explicitly mandates
open meetings for California State agencies, boards, and
commissions. The Bagley-Keene 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.
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 CPRA 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.
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 very
specific provisions of Bagley-Keene. 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 Bagley-Keene allows for
teleconference meetings, it requires each site from which a
member of the body participates to be accessible to the public.
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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, Chapter 847,
Statutes of 2002) 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/9/13)
California League of Food Processors
California Manufacturers & Technology Association
Western States Petroleum Association
ARGUMENTS IN SUPPORT : According to the author, "Currently,
actions taken by WCI, Inc. are not subject to the Bagley-Keene
Open Meetings Act. AB 527 would remove the exemption and
subject WCI, Inc. to the good government transparency act that
is required of bodies acting on behalf of the people."
ASSEMBLY FLOOR : 76-0, 05/30/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Ch�vez, Chesbro, Conway,
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Cooley, Dahle, Daly, Dickinson, Donnelly, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel P�rez, Quirk, Quirk-Silva, Rendon, Salas, Stone,
Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams,
Yamada, John A. P�rez
NO VOTE RECORDED: Eggman, Holden, Skinner, Vacancy
RM:nl 8/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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