BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 1464 ----------------------------------------------------------------- |Author: |De León | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/11/2016 |Hearing |4/20/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rebecca Newhouse | | | | ----------------------------------------------------------------- SUBJECT: California Global Warming Solutions Act of 2006: greenhouse gas emissions reduction ANALYSIS: Existing law: 1) Under the California Global Warming Solutions Act of 2006 (also known as AB 32), requires the California Air Resources Board (ARB) to determine the 1990 statewide greenhouse gas (GHG) emissions level and approve a statewide GHG emissions limit that is equivalent to that level, to be achieved by 2020, and to adopt GHG emissions reductions measures by regulation. ARB is authorized to include the use of market-based mechanisms to comply with these regulations. (Health and Safety Code §38500 et seq.) 2) Establishes the Greenhouse Gas Reduction Fund (GGRF) in the State Treasury, requires all moneys, except for fines and penalties, collected pursuant to a market-based mechanism be deposited in the fund. (Government Code §16428.8) 3) Requires the Department of Finance, in consultation with the state board and any other relevant state agency, to develop a three-year investment plan for the moneys deposited in the GGRF that does all of the following (HSC §39716): a) Identifies the state's near-term and long-term GHG emissions reduction goals and targets by sector. SB 1464 (De León) Page 2 of ? b) Analyzes gaps in state strategies to meeting the state's GHG emissions reduction goals and targets by sector. c) Identifies priority programmatic investments of moneys that facilitate the achievement of feasible and cost-effective GHG emissions reductions toward achievement of GHG emission reduction goals and targets by sector. This bill requires the Investment Plan recommend metrics that would measure progress and benefits from the proposed programmatic investments, and, in identifying priority programmatic investments, requires the Investment Plan to do both of the following: a) Assess how proposed investments interact with current state regulations, policies, and programs. b) Evaluate if and how proposed investments could be incorporated into existing programs. Background 1) Cap-and-trade auction revenue. Since November 2012, ARB has conducted 14 cap-and-trade auctions, generating over $4 billion in proceeds to the state. State law specifies that the auction revenues must be used to facilitate the achievement of GHG emissions reductions and outlines various categories of allowable expenditures. Statute further requires the Department of Finance, in consultation with ARB and any other relevant state agency, to develop a three-year investment plan for the auction proceeds, which are deposited in the GGRF. Disadvantaged communities. SB 535 (de León, Chapter 830, Statutes of 2012) requires the Department of Finance, in the investment plan, to allocate at least 25% of available moneys in the GGRF to projects that provide benefits to disadvantaged communities, and at least 10% to projects located within disadvantaged communities. To meet the SB 535 mandate, the Office of Environmental Health Hazard Assessment, under CalEPA's guidance, developed SB 1464 (De León) Page 3 of ? a tool (termed CalEnviroScreen) to assess and rank census tracts across the state that are disproportionately affected by multiple types of pollution and areas with vulnerable populations. CalEPA has designated 25% of census tracts in California as disadvantaged communities for the purpose of investing cap-and-trade proceeds. Additionally, SB 862 (Committee on Budget and Fiscal Review, Chapter 36, Statutes of 2014) requires ARB to develop guidelines on maximizing benefits for disadvantaged communities by agencies administering GGRF funds. Legal consideration of cap-and-trade auction revenues. The 2012-13 Budget analysis of cap-and-trade auction revenue by the Legislative Analyst's Office noted that, based on an opinion from the Office of Legislative Counsel, the auction revenues should be considered mitigation fee revenues, and their use requires that a clear nexus exist between an activity for which a mitigation fee is used and the adverse effects related to the activity on which that fee is levied. Therefore, in order for their use to be valid as mitigation fees, revenues from the cap-and-trade auction must be used to mitigate GHG emissions or the harms caused by GHG emissions. In 2012, the California Chamber of Commerce filed a lawsuit against the ARB claiming that cap-and-trade auction revenues constitute illegal tax revenue. In November 2013, the superior court ruling declined to hold the auction a tax, concluding that it is more akin to a regulatory fee. In February of 2014, the plaintiffs filed an appeal with the 3rd District Court of Appeal in Sacramento. That case is currently pending. Budget allocations. SB 862 (Committee on Budget and Fiscal Review, Chapter 36, Statutes of 2014) established a long-term cap-and-trade expenditure plan by continuously appropriating portions of the funds for designated programs or purposes. The legislation appropriates 25% for the state's high-speed rail project, 20% for affordable housing and sustainable communities grants, 10% to the Transit and Intercity Rail Capital Program, and 5% for low-carbon transit operations. The remaining 40% is available for annual appropriation by the Legislature. SB 1464 (De León) Page 4 of ? The Governor's 2016-17 proposed budget appropriates over $3 billion to a variety of programs and projects in the transportation, energy, natural resources, and waste diversion sectors. Since 2013, GGRF moneys have been appropriated to 12 different agencies to administer 22 different programs. 2) Investment plan. Pursuant to AB 1532 (Pérez, Chapter 807, Statutes of 2012), the first three-year Investment Plan for cap-and-trade auction proceeds, developed by Department of Finance in consultation with ARB and other state agencies and covering 2013-2015, was submitted to the Legislature in May 2013. The plan identified 1) sustainable communities and clean transportation, 2) energy efficiency and clean energy, and 3) natural resources and waste diversion as the three broad categories that provide the best opportunities, in that order, for achieving the legislative goals of AB 32 via auction proceeds. In addition, SB 535 directs that threshold levels of investment be made to benefit disadvantaged communities. Within those categories, the plan identified a range of programs and measures to reduce GHG emissions, benefit disadvantaged communities, and provide other cobenefits, such as reduced air pollution, diversification of energy and fuels, and spurring relevant technological innovation. The Second Plan was released in January 2016, and like the First Investment Plan, proposes diverse strategies under the same three major investment categories, identifies gaps in the current investment portfolio, and suggests approaches that would help address these gaps. 3) LAO findings. According to the Legislative Analyst's Office February 2016 report on the Governor's proposed resources and environmental protection budget expenditures, the Investment Plan lacks the necessary analysis needed to develop a framework for spending. They also state that the Investment Plan does not explicitly address how new programs might interact with existing regulations or programs, and that proposals from the administration lack reliable estimates of benefits, which make it difficult to evaluate which set of programs are likely to best achieve state priorities and provide the greatest overall benefits, compared to SB 1464 (De León) Page 5 of ? alternative strategies. Comments 1) Purpose of Bill. According to the author, "Cap-and-trade auction revenue, with proceeds to the state of over $4 billion since the initial auction, has been appropriated to more than 12 different agencies to administer a variety of programs to reduce GHG emissions and provide cobenefits, including benefits to disadvantaged communities. In 2012, the Legislature directed the Department of Finance to prepare an investment plan every three years to help guide Legislative appropriation of the proceeds. The Investment Plan is required to assess gaps in the state's strategies to meet climate goals, and identify priority investments. However, as the Legislative Analyst's Office has noted in their recent budget report, the Investment Plan does not provide a robust analysis with which to evaluate proposals for GGRF spending, including how proposed investments interact with the current state programs. Additionally, the LAO reports the lack of specificity of benefits assigned to administration budget proposals, and the difficulty this poses in evaluating these proposals for funding. On top of this, the GGRF fund keeps growing, with the potential to fund a variety of new programs. SB 1464 requires the Investment Plan to consider how proposed investments interact with current state programs, and if those investments and programs can be incorporated into current state programs. SB 1464 also requires the investment plan recommend metrics that would measure progress and benefits from the proposed programmatic investments. In this way, the Investment Plan will better serve its original statutory intent-to guide the Legislature in funding an optimized strategy of complementary investments to maximize GHG emissions reductions and cobenefits from the GGRF, especially in those communities disproportionately burdened by pollution." SOURCE: Author SUPPORT: None received SB 1464 (De León) Page 6 of ? OPPOSITION: None received -- END --