BILL ANALYSIS
AB 1405
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 1405
AUTHOR: De Leon
AMENDED: June 23, 2009
FISCAL: Yes HEARING DATE: July 13, 2009
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : COMMUNITY BENEFITS FUND
SUMMARY :
Existing law :
1) Requires the Office of Planning and Research (OPR) to be
the coordinating agency in state government for
environmental justice programs; requires OPR to consult
with certain parties, review related federal information,
and share environmental justice information with certain
federal agencies; and requires OPR to include guidelines
for addressing environmental justice matters in city and
county general plans. (Government Code 65040.12).
2) Under the above OPR responsibilities, defines environmental
justice to mean "the fair treatment of people of all races,
cultures, and incomes with respect to the development,
adoption, implementation, and enforcement of environmental
laws, regulations, and policies." (65040.12(e)).
3) Requires the California Environmental Protection Agency
(Cal-EPA) to develop a model environmental justice mission
statement on or before January 1, 2001, for boards,
departments, and offices within the agency, and to comply
with certain requirements (e.g., conduct its programs,
policies, and activities that substantially affect human
health or the environment in a manner that ensures
environmental justice; promote enforcement of all health
and environmental statutes in a manner that ensure
environmental justice; ensure greater public
participation). (71110 and 71111).
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4) Requires the Cal-EPA Secretary to convene a Working Group
on Environmental Justice on or before January 1, 2002, with
certain responsibilities (e.g., examine existing data and
studies on environmental justice, recommend criteria for
identifying and addressing any gaps in existing programs
that may impede the achievement of environmental justice,
recommend certain public participation responsibilities).
(71113).
5) Requires the Cal-EPA Secretary to convene an advisory group
on or before January 1, 2002, to assist the working group,
and specifies the composition of the advisory group.
(71114).
6) Requires each board, department, and office within Cal-EPA,
and the OPR director, to review its programs, policies, and
activities and identify and address any gaps that may
impede achievement of environmental justice. (71114.1).
7) Establishes an Environmental Justice Small Grant Program to
provide grants to eligible groups involved in addressing
environmental justice issues. (71116).
8) Requires the Cal-EPA Secretary to prepare and submit a
report on the implementation of the above Cal-EPA
requirements (#3 to #7) by January 1, 2004, and every three
years thereafter. (71115).
9) Under the California Global Warming Solutions Act of 2006
(CGWSA):
a) 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 sets various requirements to meet this
requirement. (Health and Safety Code 38500 et seq.).
b) Requires ARB to prepare and approve a scoping plan by
January 1, 2009, for achieving the maximum
technologically feasible and cost-effective reductions
in GHG emissions from sources or categories of sources
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of GHGs by 2020. ARB must evaluate the total potential
costs and total potential economic and noneconomic
benefits of the plan for reducing GHGs to the state's
economy and public health, using the best economic
models, emission estimation techniques, and other
scientific methods. The plan must be updated at least
once every five years. (38561).
c) Requires ARB to adopt GHG emission limits and
emission reduction measures by regulation on or before
January 1, 2011, and meet certain requirements in
adopting the regulations. ARB may include the use of
market based mechanisms to comply with these
regulations. (38562, 38570).
d) Requires ARB to ensure that GHG emission reduction
requirements and programs, to the extent feasible,
direct public and private investment toward the most
disadvantaged communities in the state and provide an
opportunity for certain entities to participate in and
benefit from statewide efforts to reduce GHG emissions
(38565). ARB must convene an environmental justice
advisory committee to advise it in implementing the Act
(38591(a)), and a Technology Advancement Advisory
Committee to advise it on activities to facilitate
investment in technology matters (38591(d)).
e) Authorizes ARB to adopt a schedule of fees to be paid
by GHG emission sources regulated under GGWSA, to be
deposited into the Air Pollution Control Fund and
available upon appropriation by the Legislature for
carrying out the GGWSA. (38597).
This bill :
1) Creates the Community Benefits Fund (CBF) in the State
Treasury, and requires a minimum of 30% of fee revenue
generated under the GGWSA to be deposited by ARB into the
Fund.
2) Requires funds appropriated by the Legislature from the CBF
to be used solely in the most impacted and disadvantaged
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communities in the state to increase GHG emission
reductions or mitigate direct health impacts of climate
change in those communities. Funds must provide
competitive grants for projects, including those specified
to reduce GHG emissions (e.g., assist small businesses,
install or replace equipment, clean distributed electricity
generation systems, energy efficient upgrades) and
emergency preparedness for extreme weather events caused by
global warming.
3) Requires ARB to adopt methodology by June 30, 2010, to
identify the most impacted and disadvantaged communities
that meets certain requirements.
4) Requires ARB, State Energy Resources Conservation and
Development Commission (CEC), and State Department of
Public Health (DPH) to jointly develop biennial plans for
use of the above funds.
5) Authorizes costs incurred to implement the above
requirements to be recovered from fees authorized under the
CGWSA.
6) Provides that projects can only be funded if ARB determines
that use of moneys is consistent with Article XIIIA of the
state Constitution, and requires ARB to ensure that no
feepayer pays for a disproportionate share of global
warming harm addressed by the above requirements.
COMMENTS :
1) Purpose of Bill . According to the author, "The direct
impacts of climate change will largely affect disadvantaged
communities who are already suffering from adverse health
impacts such as respiratory and cardiac illnesses and
episodes of extreme heat waves that have forced many into
the emergency room . . . funds need to be invested in the
most impacted and most disadvantaged communities in
California to accelerate greenhouse gas emission reductions
and mitigate direct health impacts of climate change."
2) Federal and state environmental justice efforts .
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Environmental justice refers to the fair treatment of
people of all races, cultures, and income with respect to
the development, implementation, and enforcement of
environmental laws, regulations, and policies. On February
11, 1994, President Clinton signed Executive Order 12898
regarding "federal actions to address environmental justice
in minority populations and low-income populations." The
executive order followed a 1992 Environmental Protection
Agency report indicating that "communities of color and
low-income populations experience higher than average
exposures to selected air pollutants, hazardous waste
facilities, and other forms of environmental pollution."
President Clinton also directed each federal agency to
address effects of actions on these communities when
analysis is required under the National Environmental
Policy Act (NEPA).
SB 115 (Solis) Chapter 690, Statutes of 1999, enacted most of
the OPR and Cal-EPA responsibilities (existing law, #1 to
#3 above) and SB 89 (Escutia) Chapter 728, Statutes of
2000, enacted the working group, advisory group, and
implementation report requirements (existing law, #4 to #6
above). SB 828 (Alarcon) Chapter 767, Statutes of 2001,
revised SB 89 deadlines and renumbered the provisions. AB
1553 (Keeley) Chapter 762, Statutes of 2001, required OPR
environmental justice general plan guidelines. AB 2312
(Chu) Chapter 994, Statutes of 2002, created the
Environmental Justice Small Grant Program (existing law, #7
above).
Prior to SB 115 and SB 89, several legislators attempted to
address environmental justice issues in California,
including AB 937 (Roybal-Allard) of 1991 (vetoed), AB 3024
(Roybal-Allard) of 1992 (vetoed), and AB 2212 (Lee) of 1994
(refused passage on Senate Floor). These bills required
the submittal of "project site demographics" for a
"potentially high-impact development project" and
prohibited an application for such a facility from being
accepted as complete, deemed complete, or approved without
this information. SB 451 (Watson), SB 906 (Lee), SB 1113
(Solis), and SB 2237 (Escutia) addressed environmental
justice issues during the 1997-98 session. All were vetoed
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except for SB 906 (Senator Watson canceled a hearing on the
bill).
3) Effect on disadvantaged communities . According to a March
2009 report to ARB from the California Climate Change
Center ("Environmental Health and Equity Impacts from
Climate Change and Mitigation Policies in California: A
Review of the Literature"), "Four climate change
impacts-hurricane damage, energy costs, real estate losses,
and water costs-alone are projected to cost 1.8% of the GDP
of the United States, or, just under $1.9 trillion (2008
U.S. dollars [USD]) by the year 2100). These price
increases will disproportionately impact groups that spend
the highest proportion of their income on these
necessities. There is nearly a three-fold difference in
the proportion of the sum of expenses allocated to water
between the lowest- and the highest-expenditure quintiles.
Households in the lowest quintile use more than twice the
proportion of their total expenditures on electricity than
do those households in the highest quintile."
The report also notes that "Because in the coming decades
climate change impacts are projected to increase the prices
of necessities[,] low income people who already are paying
a higher proportion of their income for necessities will
potentially be subjected to increasingly disproportionate
economic impacts of climate change."
According to the sponsors, "In order to avoid this kind of
economic discrepancy as well as continued hardship for the
lowest quintile of the population, it is recommended that
each year 30% of the revenue generated by the [CGWSA]
implementation process be set aside as Community Benefits
fund. The funds must be invested in the most impacted and
most disadvantaged communities in California to accelerate
[GHG] emission reductions that also include co-benefits of
reducing air pollution and mitigate direct health impacts
of climate change."
4) Sufficient guidance ? As noted above, the CGWSA requires
ARB to convene an environmental justice advisory committee
to advise it in implementing the CGWSA. The advisory
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committee must be comprised of representatives from
communities in the state with the most significant exposure
to air pollution, including communities with minority
populations or low-income populations, or both.
Because the environmental justice advisory committee must
advise ARB in implementing the CGWSA, the advisory
committee should also be consulted in developing the
biennial plan for use of funds under AB 1405, as well as
submitting recommendations on any draft biennial plan.
5) Opposition and support concerns . Opponents generally note
that ARB has no authority to impose fees for purposes in
this bill; the goal of the CGWSA is to reduce GHG
emissions, not raise funds; the bill is premature because
environmental justice concerns will be appropriately
addressed in development of CGWSA regulations; this bill
would likely not pass requirements for use of fees; and
there is no need to create a separate fund for this purpose
because the Legislature will continue to be involved with
[ARB's] program through the annual budget process.
According to supporters, "In adopting the [CGWSA] California
promised to ensure that low-income and most-impacted
communities are protected from and strengthened by efforts
to tackle California's climate crisis. However, to date
the State has not adequately established the resources to
meet the promise. Therefore, legislation is needed to
ensure that these neighborhoods are not left behind."
Supporters note that this bill would ensure that "we invest
in the neighborhoods that have suffered the most from
pollution and will struggle the most with the consequences
of the climate crisis."
6) Related legislation . SB 31 (Pavley) authorizes ARB to
collect revenues pursuant to "compliance mechanisms"
adopted by ARB and authorizes those revenues, along with
revenues collected in accordance with current law, to be
used for certain purposes (e.g., costs of administering the
CGWSA, renewable energy and energy efficiency programs,
technology, green jobs development). SB 31 was approved by
the Environmental Quality Committee April 20, 2009 (5-2),
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and failed on the Senate Floor June 3, 2009 (16-19).
AB 231 (Huffman) requires fees collected under the CGWSA, as
well as "compliance revenues," fines and penalties, to be
deposited into the Climate Protection Trust Fund, to be
used for certain purposes (e.g., energy efficiency,
technology, natural resource planning and adaptation, green
job development). AB 231 is with the Environmental Quality
Committee.
7) Clarification needed . Clarification is needed to: a)
refer to "climate change" rather than "global warming"
throughout the bill; b) refer to "funds appropriated"
rather than the "Community Benefits Fund" on page 2, line
15; c) strike "that reduces" and insert "to reduce" on page
3, line 10; and d) insert "and adopt" after "develop" on
page 4, line 13.
SOURCE: California NAACP, Center on Race, Poverty and
the Environment, Coalition for Clean Air,
Greenlining Institute
SUPPORT : American Lung Association, Bay Localize,
California Urban Forests Council, Community
Action to Fight Asthma, Ella Baker Center for
Human Rights, Environment California,
Environmental Defense Fund, Fresno Metro
Ministry, Latino Coalition for a Healthy
California, Latino Health Alliance, Local
Government Commission, National Parks
Conservation Association, Public Health
Institute, Regional Asthma Management and
Prevention, Sierra Club California, The Trust
for Public Land, Union of Concerned Scientists
OPPOSITION : American Council of Engineering Companies of
California, American Forest and Paper
Association, BOMA California, California
Business Properties Association, California
Chamber of Commerce, California Construction
and Industrial Materials Association,
California Grocers Association, California
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Independent Oil Marketers Association,
California Independent Petroleum Association,
California League of Food Processors,
California Manufacturers & Technology
Association, California Retailers Association,
California Taxpayers' Association, Chemical
Industry Council of California, Industrial
Environmental Association, International
Council of Shopping Centers, NAIOP of
California, National Federal of Independent
Business, Santa Barbara Technology & Industry
Association, Stop Hidden Taxes Coalition,
Western Growers, Western Power Trading Forum,
Western States Petroleum Association, Western
Wood Preservers Institute