BILL ANALYSIS Ó
SB 726
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 726 (Lara) - As Amended: August 5, 2013
SENATE VOTE : 39-0
SUBJECT : California Global Warming Solutions Act of 2006:
Western Climate Initiative, Incorporated
KEY ISSUES :
1)Should California's participation on the board of the Western
Climate Initiative, Incorporated, be conditionED on that body
adopting open meeting and public records policies that are
consistent with state law?
2)Should the AIR RESOURCES BOARD report information on proposed
expenditures and allocations relating to the Western Climate
Initiative in its budget report and to the legislature?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill seeks to make California's
participation in the Western Climate Initiative more open and
transparent. California's Global Warming Solutions Act (Act) of
2006 requires the Air Resources Board (ARB) to monitor and
regulate greenhouse gas emissions and sets a goal of reducing
greenhouse gas emissions to their 1990 level by 2020. In order
to assist the ARB in implementing the Act, SB 1018 (Chapter 39,
Stats. of 2012) formally recognized the Western Climate
Initiative (WCI), Incorporated, a non-profit 501(c) corporation
made up of California officials and officials from other
jurisdictions. Existing law expressly exempts WCI, Inc. from
the open meeting requirements of the Bagley-Keene Act. Since
WCI, Inc. fits the definition of a body that could be subject to
Bagley-Keene, it is unclear why SB 1018 expressly exempted WCI,
Inc. Apparently this decision reflected the fact that WCI, Inc.
includes members from other states and Canadian provinces that
cannot be subject to California law. However, the author still
believes that the WCI, Inc. process, and especially the role of
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its California participants, should be open and transparent.
Therefore, this bill would remove the Bagley-Keene exemption and
instead - taking into account the problems created by the body's
multi-jurisdictional character - specify that the California
members shall participate on the board of directors only so long
as WCI, Inc. maintains open meetings and open records policies
that are consistent with the Bagley-Keene Act and the California
Public Records Act. In addition, the bill would require ARB to
make certain financial reports, as specified, and it makes
legislative findings and declarations to clarify that the sole
purpose of California's participation in WCI, Inc. is to provide
operational and technical support to the ARB greenhouse gas
reduction program, and it has no authority to create policy with
respect to future programs.
SUMMARY : Conditions California's involvement with the Western
Climate Initiative (WCI), Incorporated, upon that body's
adoption of open meeting and public records policies that are
consistent with California law. Specifically, this bill :
1)Deletes a provision of existing law that exempts WCI,
Incorporated, from the requirements of the Bagley-Keene Open
Meetings Act and instead provides that California members
shall only participate on the WCI, Incorporated, board of
directors so long as it maintains open meeting and public
records policies that are consistent with the Bagley-Keene Act
and the California Public Records Act, respectively.
2)Requires the State Air Resources Board to include information
on all proposed expenditures and allocations of moneys to the
WCI, Incorporated, in the Governor's Budget, and to report to
the Joint Legislative Budget Committee on procurements
proposed by WCI, Incorporated.
3)Makes legislative findings and declarations to clarify that
the sole purpose of WCI, Incorporated, is to provide
operational and technical support to the Air Resources Board
in implementing greenhouse gas emissions reduction programs
and, therefore, WCI, Incorporated, does not have authority to
create policy with respect to any future program.
EXISTING LAW :
1)Requires, under the California Global Warming Solutions Act of
2006, that the Air Resources Board (ARB) monitor, report, and
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regulate sources of greenhouse gas emissions in order to
reduce greenhouse gas emissions to their 1990 level by 2020,
and to adopt rules and regulations in an open process to
achieve the maximum, technologically feasible, and
cost-effective greenhouse gas reductions. (Health & Safety
Code Sections 38500-38599.)
2)Recognizes the WCI, Incorporated, as a nongovernmental entity
to assist the ARB in the implementation of the California
Global Solutions Act of 2006. (Government Code Section
12894(a).)
3)Provides that the following persons shall constitute the
California membership of the board of directors of WCI,
Incorporated:
a) 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.
b) 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.
c) The Chairperson of the ARB or her or his designee.
d) The Secretary for Environmental Protection or his or her
designee. (Government Code Section 12894 (b) (1) (A)-(D).)
4)Exempts WCI, Incorporated, from the open meeting requirements
of the Bagley-Keene Act. (Government Code Section (b) (2).)
5)Requires, under the Bagley-Keene Open Meeting Act, 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. (Government Code Sections
11120-11121; emphasis added.)
6)Provides, under the California Public Records Act, that all
records maintained by local and state governmental agencies
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are open to public inspection unless specifically exempt.
(Government Code sections 6250 et seq.)
COMMENTS : According to the author, this bill "addresses the
issue of transparency and accountability" relating to the
California Air Resources Board (ARB) involvement with the
Western Climate Initiative (WCI), Incorporated.
The Western Climate Initiative - not to be confused with Western
Climate Initiative, Inc. - is a collaboration of independent
jurisdictions working together to identify, evaluate, and
implement emissions trading policies and take a regional
approach to the problem of global warming and climate change.
In February 2007, 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.
The Western Climate Initiative, Inc. - not to be confused with
the Western Climate Initiative - is a non-profit corporation
that includes on its board of directors public officials from
California and the other jurisdictions that have joined the
Western Climate Initiative. SB 1018 (Chapter 39, Statutes of
2012) effectively recognized WCI, Inc., as a non-governmental
entity that would assist the ARB in implementing the California
Global Warming Solutions Act of 2006. More popularly known as
AB 32, this Act requires the ARB to monitor and regulate
greenhouse gas emissions with the goal of reducing those
emissions to 1990 levels by 2020.
WCI, Inc. Exemption from Bagley-Keene : The legislation that
recognized WCI, Inc. as the body that would assist ARB in
implementing its greenhouse reduction goals also expressly
exempted WCI, Inc. from the open meeting requirements of the
Bagley-Keene Open Meeting Act. Bagley-Keene requires that all
"state bodies" conduct meetings that are properly noticed and
open to the public. Although Bagley-Keene was primarily
intended to apply to "public" entities (and the advisory bodies
that might serve them), it nonetheless defines the term "state
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body" broadly enough to include non-governmental entities,
including private corporations, if the boards of those private
corporations include state officials who are acting in their
official capacity and if the entity receives state funds. By
this broad definition, WCI, Inc. would qualify as a "state body"
subject to Bagley-Keene - since its board includes California
officials acting in their official capacity and the entity
receives state funds.
It is unclear from the legislative history as to why SB 1018
expressly exempted WCI, Inc., from Bagley-Keene, but it
apparently reflected the fact that the board of WCI, Inc.,
includes members from other western states and Canadian
provinces. Thus, the geographical dispersion of board members
might make it difficult for all members to convene in a common
location to which the public could attend. Moreover, because
many board members would be from other jurisdictions, it was not
clear that California law could command them to meet our state
law requirements.
Making the WCI Process More Transparent : Although the author
recognizes the difficulties of subjecting other jurisdictions to
California law, he nonetheless seeks to ensure that the WCI,
Inc. process - and especially California's role in it - is as
open and transparent as possible. This bill, therefore, would
remove the express exemption from Bagley-Keene in existing law
and instead condition California's participation on WCI, Inc.
adopting open meeting and records policies that are consistent
with the Bagley-Keene Act and the California Public Records Act.
In addition, this bill would make two additional amendments to
existing law that would make the process more open and
transparent. First, the bill would require the ARB to include
information on all proposed expenditures and allocations of
moneys to WCI, Inc. in the Governor's Budget. Second, the bill
would require ARB to report to the Joint Legislative Budget
Committee on specified procurements proposed by WCI, Inc.
Legislative Findings and Declarations : Finally, in addition to
the provisions in this bill aimed at creating more transparency,
this bill would also add legislative findings and declarations
to specify that the sole purpose of California's participation
in WCI, Inc. is to provide operational and technical support in
its implementation of the California Global Solutions Act and to
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provide support to the greenhouse gas emissions reduction
programs and that, given this limited scope, WCI, Inc., does not
have the authority to create policy with respect to any future
program.
Pending Related Legislation: AB 527 (Gaines) would also delete
WCI, Inc.'s exemption from Bagley-Keene. AB 527 would also make
a contract between the state and WCI, Inc., subject to audit by
the California State Auditor.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Thomas Clark and Tom Watts / JUD. / (916)
319-2334