Amended in Assembly August 22, 2013

Amended in Assembly August 5, 2013

Amended in Assembly June 24, 2013

Amended in Senate May 24, 2013

Amended in Senate April 8, 2013

Senate Bill No. 726

Introduced by Senator Lara

February 22, 2013

An act to begin delete amend Section 12894 of end delete begin insert add Section 12894.5 to end insert the Government Code, relating to greenhouse gases.

LEGISLATIVE COUNSEL’S DIGEST

SB 726, as amended, Lara. California Global Warming Solutions Act of 2006: Western Climate Initiative, Incorporated.

(1) The California Global Warming Solutions Act of 2006 designates the State Air Resources Board as the state agency charged with monitoring and regulating sources of emissions of greenhouse gases. The state board is required to adopt a statewide greenhouse gas emissions limit equivalent to the statewide greenhouse gas emissions level in 1990 to be achieved by 2020, and to adopt rules and regulations in an open public process to achieve the maximum, technologically feasible, and cost-effective greenhouse gas emissions reductions. Existing law also imposes conditions on the Western Climate Initiative, Incorporated, a nongovernmental entity created to assist the state board in the implementation of the act. Existing law specifies who may serve as part of the California membership of the board of directors of the Western Climate Initiative, Incorporated.

This bill, commencing January 1, 2014, would require the state board to include information on all proposed expenditures and allocations of moneys to the Western Climate Initiative, Incorporated, in the Governor’s Budget. The bill would require the state board to report to the Joint Legislative Budget Committee on specified procurements proposed by the Western Climate Initiative, Incorporated.

(2) The Bagley-Keene Open Meeting Act generally requires that all meetings of a state body be open and public. Existing law exempts the Western Climate Initiative, Incorporated, and its appointees from the Bagley-Keene Open Meeting Act when performing their duties. The California Public Records Act requires state and local agencies to make public records available for inspection by the public, subject to specified criteria, and with specified exceptions.

This bill would begin delete repeal that exemption and instead subject the Western Climate Initiative, Incorporated, and its appointees to the Bagley-Keene Open Meeting Act when performing their duties. The bill would end delete require the California membership of the Western Climate Initiative, Incorporated, to participate on the board of directors so long as the Western Climate Initiative, Incorporated, maintains a specified open meetings policy, a specified public records policy, and bylaws limiting the activities of the Western Climate Initiative, Incorporated, to the technical and operational support of the greenhouse gas emissions reduction programs of California and other jurisdictions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

Section 12894.5 is added to the Government Code,
to read:

begin insert 12894.5. end insert   

(a) The Legislature finds and declares that
California’s participation in the Western Climate Initiative,
Incorporated, requires that its sole purpose be to provide
operational and technical support to California in its
implementation of Division 25.5 (commencing with Section 38500)
of the Health and Safety Code and to provide support to the
greenhouse gas emissions reduction programs of other
jurisdictions. Given its limited scope of activities, the Western
Climate Initiative, Incorporated, does not have the authority to
create policy with respect to any existing or future program or
regulation undertaken pursuant to Division 25.5 (commencing
with Section 38500) of the Health and Safety Code.

(b) The California membership of the board of directors of the
Western Climate Initiative, Incorporated, as established pursuant
to Section 12894, shall participate on the board so long as the
Western Climate Initiative, Incorporated, maintains policies and
bylaws according to all of the following:

(1) An open meetings policy that is and remains consistent with
the general policies of the Bagley-Keene Open Meeting Act (Article
9 (commencing with Section 11120) of Chapter 1 of Part 1) and
affords the public the greatest possible access consistent with the
other duties of the Western Climate Initiative, Incorporated.

(2) A records availability policy that is and remains consistent
with the general policies of the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1) and affords the public access to corporate records
consistent with the operating needs and other duties of the Western
Climate Initiative, Incorporated, and all applicable legal privileges.

(3) Bylaws that limit the activities of the Western Climate
Initiative, Incorporated, to the technical and operational support
of the greenhouse gas emissions reduction programs of California
and other jurisdictions. These bylaws shall not allow the Western
Climate Initiative, Incorporated, to have policymaking authority
with respect to these programs.

(c) The State Air Resources Board shall provide notice to the
Joint Legislative Budget Committee for all procurements over one
hundred fifty thousand dollars ($150,000) proposed by the Western
Climate Initiative, Incorporated, that are expected to result in a
contract no later than 30 days prior to the execution of those
contracts.

(d) Commencing January 1, 2014, the State Air Resources Board
shall include information on all proposed expenditures and
allocations of moneys to the Western Climate Initiative,
Incorporated, in the Governor’s Budget.

end insert

begin delete

SECTION 1.  

Section 12894 of the Government Code is
amended to read:

12894.  

(a) (1) The Legislature finds and declares both of the
following:

(A) The establishment of nongovernmental entities, such as the
Western Climate Initiative, Incorporated, and linkages with other
states and countries by the State Air Resources Board or other state
agencies for the purposes of implementing Division 25.5
(commencing with Section 38500) of the Health and Safety Code,
should be done transparently and should be independently reviewed
by the Attorney General for consistency with all applicable laws.

(B) California’s participation in the Western Climate Initiative,
Incorporated, requires that its sole purpose be to provide
operational and technical support to California in its
implementation of Division 25.5 (commencing with Section 38550)
of the Health and Safety Code and to provide support to the
greenhouse gas emissions reduction programs of other jurisdictions.
Given its limited scope of activities, the Western Climate Initiative,
Incorporated, does not have the authority to create policy with
respect to any existing or future program or regulation undertaken
pursuant to Division 25.5 (commencing with Section 38550) of
the Health and Safety Code.

(2) The purpose of this section is to establish new oversight and
transparency over the Western Climate Initiative, Incorporated,
and related activities undertaken in relation to Division 25.5
(commencing with Section 38500) of the Health and Safety Code
by the executive agencies in order to ensure consistency with
applicable laws.

(b) The California membership of the board of directors of the
Western Climate Initiative, Incorporated, shall be modified as
follows:

(1) 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.

(2) 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.

(3) The Chairperson of the State Air Resources Board or her or
his designee.

(4) The Secretary for Environmental Protection or his or her
designee.

(c) The California membership of the board of directors of the
Western Climate Initiative, Incorporated, shall participate on the
board so long as the Western Climate Initiative, Incorporated,
maintains policies and bylaws according to all of the following:

(1) An open meetings policy that is and remains consistent with
the general policies of the Bagley-Keene Open Meeting Act
(Article 9 (commencing with Section 11120) of Chapter 1 of Part
1) and affords the public the greatest possible access consistent
with the other duties of the Western Climate Initiative,
Incorporated.

(2) A records availability policy that is and remains consistent
with the general policies of the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1) and affords the public access to corporate records consistent
with the operating needs and other duties of the Western Climate
Initiative, Incorporated, and all applicable legal privileges.

(3) Bylaws that limit the activities of the Western Climate
Initiative, Incorporated, to the technical and operational support
of the greenhouse gas emissions reduction programs of California
and other jurisdictions. These bylaws shall not allow the Western
Climate Initiative, Incorporated, to have policymaking authority
with respect to these programs.

(d) The State Air Resources Board shall provide notice to the
Joint Legislative Budget Committee for both of the following:

(1) Any funds over one hundred fifty thousand dollars
($150,000) provided to the Western Climate Initiative,
Incorporated, or its derivatives or subcontractors no later than 30
days prior to transfer or expenditure of these funds.

(2) All procurements over one hundred fifty thousand dollars
($150,000) proposed by the Western Climate Initiative,
Incorporated, that are expected to result in a contract no later than
30 days prior to the execution of those contracts.

(e) The Chairperson of the State Air Resources Board and the
Secretary for Environmental Protection, as the California voting
representatives on the Western Climate Initiative, Incorporated,
shall report every six months to the Joint Legislative Budget
Committee on any actions proposed by the Western Climate
Initiative, Incorporated, that affect California state government or
entities located within the state.

(f) For purposes of this section, “link,” “linkage,” or “linking”
means an action taken by the State Air Resources Board or any
other state agency that will result in acceptance by the State of
California of compliance instruments issued by any other
governmental agency, including any state, province, or country,
for purposes of demonstrating compliance with the market-based
compliance mechanism established pursuant to Division 25.5
(commencing with Section 38500) of the Health and Safety Code
and specified in Sections 95801 to 96022, inclusive, of Title 17 of
the California Code of Regulations.

(g) A state agency, including, but not limited to, the State Air
Resources Board, shall not link a market-based compliance
mechanism established pursuant to Division 25.5 (commencing
with Section 38500) of the Health and Safety Code and specified
in Sections 95801 to 96022, inclusive, of Title 17 of the California
Code of Regulations with any other state, province, or country
unless the state agency notifies the Governor that the agency
intends to take such action and the Governor, acting in his or her
independent capacity, makes all of the following findings:

(1) The jurisdiction with which the state agency proposes to
link has adopted program requirements for greenhouse gas
reductions, including, but not limited to, requirements for offsets,
that are equivalent to or stricter than those required by Division
25.5 (commencing with Section 38500) of the Health and Safety
Code.

(2) Under the proposed linkage, the State of California is able
to enforce Division 25.5 (commencing with Section 38500) of the
Health and Safety Code and related statutes, against any entity
subject to regulation under those statutes, and against any entity
located within the linking jurisdiction to the maximum extent
permitted under the United States and California Constitutions.

(3) The proposed linkage provides for enforcement of applicable
laws by the state agency or by the linking jurisdiction of program
requirements that are equivalent to or stricter than those required
by Division 25.5 (commencing with Section 38500) of the Health
and Safety Code.

(4) The proposed linkage and any related participation of the
State of California in the Western Climate Initiative, Incorporated,
shall not impose any significant liability on the state or any state
agency for any failure associated with the linkage.

(h) The Governor shall issue findings pursuant to subdivision
(g) within 45 days of receiving a notice from a state agency, and
shall provide those findings to the Legislature. The findings shall
consider the advice of the Attorney General. The findings to be
submitted to the Legislature shall not be unreasonably withheld.
The findings shall not be subject to judicial review.

(i) Commencing January 1, 2014, the State Air Resources Board
shall include information on all proposed expenditures and
allocations of moneys to the Western Climate Initiative,
Incorporated, in the Governor’s Budget.

end delete