BILL ANALYSIS Ó
AB 726
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Date of Hearing: July 1, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 726 (Lara) - As Amended: June 24, 2013
SENATE VOTE : 39-0
SUBJECT : California Global Warming Solutions Act of 2006:
Western Climate Initiative, Incorporated
SUMMARY : Subjects Western Climate Initiative, Incorporated
(WCI, Inc.) to the Bagley-Keene Open Meeting Act (Bagley-Keene),
the California Public Records Act (CPRA), and specified
reporting 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 the Air Resources Board
(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 report annually to the Governor and
appropriate committees of the Legislature regarding emission
reductions achieved and general plans to foster relationships
with other localities, states and nations in order to reduce
GHG emissions in California.
3)Requires ARB to include information in the Governor's Budget
on all proposed expenditures and allocations of moneys to WCI,
Inc.
FISCAL EFFECT : According to the Senate Appropriations
Committee, (1) minor costs to comply with Bagley-Keene and (2)
potential costs in the tens of thousands of dollars to comply
with CPRA, depending on the number and complexity of actual
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requests.
COMMENTS :
1)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
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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 and CPRA 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 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
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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.
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. SB 527 (Gaines) repeals WCI, Inc.'s
exemption from Bagley-Keene and provides that a contract
between the state and WCI, Inc. shall be subject to audit by
the State Auditor. SB 527 is pending in the Senate
Appropriations Committee.
5)Prior Legislation. SB 1018, the 2012 Resources Budget Trailer
Bill, among other provisions, exempted WCI, Inc. from
Bagley-Keene.
6)Double referral. This bill has been double-referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
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