BILL ANALYSIS Ó
AB 1532
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1532
AUTHOR: Pérez, John A.
AMENDED: August 24, 2012
FISCAL: Yes HEARING DATE: August 29, 2012
URGENCY: No CONSULTANT: Peter Cowan
SUBJECT : CALIFORNIA GLOBAL WARMING SOLUTIONS ACT: GREENHOUSE
GAS REDUCTION FUND
SUMMARY :
Existing law :
1) 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 to adopt GHG emission reduction measures by
regulation, and sets certain requirements in adopting the
regulations. ARB may include the use of market-based
mechanisms to comply with these regulations. (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 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).
2) Establishes the Greenhouse Gas Reduction Fund (GHGRF) in the
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State Treasury and 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 that prior to the expenditure of moneys appropriated
from the GHGRF a state agency prepare a record consisting of
a description of: a) each expenditure; b) how the proposed
expenditure will further the purposes of the CGWSA; c) how
the proposed expenditure will contribute to reducing GHG
emissions; d) how the agency considered the applicability and
feasibility of other objectives pursuant to the CGWSA; and e)
how the agency will document the result achieved by the
expenditure. (§16428.9)
4) Requires the Department of Finance submit to the Legislature,
in bill format, by January 10, 2013, a proposed detailed
spending plan that includes: (§16428.8):
a) Criteria and requirements for use of the moneys.
b) Establishment of program categories eligible for
funding.
c) A specification for a public process that ARB must use
to develop a long-term spending strategy.
d) The proposed role for the Legislature in reviewing the
strategy.
5) Specifies that #4 does not apply if the Legislature passes a
bill on or before August 31, 2013, that becomes law and
specifies a long-term spending strategy and includes the
components required of the plan in #4.
This bill as amended by the Committee on July 2, 2012 (August 6,
2012 version of the bill) :
1) Establishes the Greenhouse Gas Reduction Account (the
account) within the GHGRF and requires that all moneys
excluding penalties and fines collected pursuant to the CGWSA
be deposited in the account and available upon appropriation
by the Legislature for the purposes of carrying out the
CGWSA.
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2) Requires no measure or programs be approved using money
appropriated from the account unless it is determined that
the use is consistent with the requirement of the use of
moneys derived from valid regulatory fees, as established by
the California Supreme Court in Sinclair Paint Co. v. State
Bd. of Equalization (1997).
3) Requires that moneys must be used to facilitate the
achievement of feasible and cost-effective reductions of
greenhouse gas emissions in this state and the following
complementary goals:
a) Maximize economic, environmental, and public health
benefits to the state.
b) Foster job creation by promoting in-state GHG emission
reduction projects carried out by California workers and
businesses.
c) Complement efforts to improve air quality.
d) Direct investment toward the most disadvantaged
communities and households in the state.
e) Provide opportunities for small businesses, schools,
affordable housing developers, water agencies, local
governments, and other community institutions to
participate in and benefit from statewide efforts to
reduce GHG emissions.
4) Provides that funds appropriated from the account may be
allocated for the purpose of reducing greenhouse gas
emissions in this state through investments that include, but
are not limited to, investments in:
a) Clean and efficient energy including specified programs
and projects.
b) Low-carbon transportation and infrastructure, including
specified programs and projects.
c) Natural resource protection, including specified
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programs and projects.
d) Research, development, and deployment of innovative
technologies, measures, and practices related to programs
and projects funded pursuant to this part; and specified
categories for each of these investment areas.
5) Specifies ARB and any other state agency identified by the
Legislature are the administering agencies and are required
to carry out programs to allocate moneys appropriated by the
Legislature using financial mechanisms, such as competitive
grants, loans, or other specified mechanisms.
6) Requires ARB to adopt guidelines, pursuant to the
Administrative Procedure Act, to provide state agencies,
potential funding applicants and the public guidance
regarding the allocation and allowable uses of moneys. The
guidelines must, at a minimum, do all of the following:
a) Establish minimum criteria for receiving funding and
additional criteria, as specified, that the state agencies
shall take into account in establishing preferences for
awarding moneys.
b) Provide a process to verify the qualifications of
recipients.
c) Provide for the monitoring and, as deemed necessary,
the audit of expenditures.
d) Establish minimum criteria and provide for the tracking
of outcomes.
7) Requires any state agency that allocates moneys as described
above adopt guidelines that are consistent with the
guidelines adopted by ARB pursuant
to #6.
8) Requires ARB to develop and adopt, beginning April 1, 2013,
three investment plans for the time periods: 2013 to 2014,
2015 to 2017, and 2018 to 2020. Requires that each investment
plan identify, for the specified time period, the anticipated
expenditures of moneys appropriated from the account. Each
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investment plan must: a) analyze existing programs and
requirements that reduce GHG emission and identify gaps; b)
establish priorities for the allocation of moneys; c)
identify specific categories of programs and projects; d)
identify proposed levels of expenditures for each category;
and e) identify the state agencies best qualified to
implement the programs.
9) Requires the Public Utilities Commission (PUC) to develop and
send to ARB an investment plan to be included in each
investment plan adopted by ARB. The plan must include its
requirements on how investor-owned utilities (IOUs) may use
moneys they might collect from allowance auctions pursuant to
cap-and-trade.
10)Requires ARB, prior to adopting each investment plan, to
consult with the PUC to ensure the investment plan is
coordinated with, and does not conflict with or unduly
overlap with, any expenditure plan PUC might adopt.
11)Requires ARB receive input from an advisory body that
includes the secretaries for the Natural Resources Agency,
the California Environmental Protection Agency (CalEPA), the
Department of Food and Agriculture, and the Business,
Transportation and Housing Agency; and to hold at least two
public workshops in different regions of the state and one
public hearing prior to adopting any investment plan. The
advisory body must participate in each public workshop on an
investment plan and provide testimony to the ARB on each
investment plan.
12)Requires ARB to submit to the budget committees of both
houses each proposed investment plan or any amendment to an
adopted investment 30 days prior to adoption.
13)Requires ARB to provide to the Governor a plan consistent
with the relevant investment plan detailing proposed
appropriations from the Account and that the Governor include
proposed appropriations as part of the annual January budget
proposal.
14)Requires ARB to submit an annual report no later than
December 1 to the appropriate committees of the Legislature
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on the status of projects and their outcomes and any changes
ARB recommends to the investment plan and declares
legislative intent that the appropriations required for
implementation of these changes be included in the annual
Budget Act for the subsequent fiscal year.
August 21, 2011 Senate Appropriations Committee Amendments :
1) Delete provisions conflicting with current law regarding
the establishment of the GHGRF (see existing law #2).
2) Add the mitigation of climate change impacts and effects
on the state's communities, economy, and environment, to
the list of complementary goals for the use of the GHGRF.
3) Clarify and identity additional potential purposes for
investments for moneys in the GHGRF.
4) Require CalEPA to develop, and update every two years, a
methodology that identifies priority community areas based
on geographic, socioeconomic, and environmental hazard
criteria which may include: a) area adversely affected by
environmental pollution and hazards; b) areas that contain
or produce material that pose a significant hazard to
humans; c) areas with concentrations of low income, high
unemployment, low home ownership, high rent, and low levels
of education attainment.
5) Require ARB to develop guidelines for agencies for the
purposes of allocating moneys to projects that maximize
benefits for priority community areas pursuant to #4 above.
6) Authorize agencies to set aside a portion of appropriated
funds for projects that maximize benefits to priority
community investment areas. Agencies must ensure
investments maximize the benefits for investments to
priority community areas through specified activities.
7) Strike the requirement for ARB to adhere to the
Administrative Procedure Act for the development of
guidelines for agencies, potential funding applicants, and
the public; and instead authorizes the guideline adoption
after ARB holds one or more public hearing.
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8) Add additional requirements for each of the three
investment plans including:
a) Maximizing benefit to priority community
investment areas though specified activities.
b) Identifying near and long-term GHG emissions
reduction goals by sector including current and
projected GHG emissions, progress toward sector GHG
emission reduction goals, and the sectors progress
compared to statewide GHG emissions targets.
c) Listing and describing key measures and
strategies the state relies on to achieve GHG
emissions reductions including specified analysis for
each measure or strategy.
d) Analyzing gaps in current state strategies to
reduce GHG emissions including: funding, policies,
compliance, market preparedness, and state and local
authority.
e) Identifying programmatic investments of
moneys, the expected GHG reduction and other
cobenefits, the administering agency that will
implement the investment, and other information ARB
deems necessary.
9) Require that the Governor, if ARB in its report to the
Legislature finds that an investment plan did not allocate
25% of available moneys from the prior fiscal year to
priority community areas, include as part of the annual
budget submission allocations to investments in an amount
equal to the difference between 25% of the available moneys
and the total investments that benefited priority community
investment areas. This allocation must be in addition to
the 25% required for that fiscal year.
10) Require ARB in its annual report to the Legislature
describe how agencies have maximized the benefits of
investments to priority community investment areas,
including, but not limited to, the percentage of funds
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allocated to date that have been invested in priority
community investment areas.
Amendments taken on the Senate Floor (August 24, 2012, version of
the bill) and subsequently referred to the Senate Committee on
Environmental Quality pursuant to Senate Rule 29.10 :
1) Strike the requirement that the state determine a
measure or program is consistent with requirements, as
established by the California Supreme Court in Sinclair
Paint Co. v. State Bd. Of Equalization prior to approving
funding.
2) Add specified investments to the specified purposes for
the use of GHGRF moneys.
3) Add specified criteria for CalEPA to consider when
developing a methodology that identifies priority
communities for investment, including areas with proximity
to sources that produce criteria and toxic air pollution
and area with high concentrations of sensitive populations.
4) Strike redundant requirements and add new requirements
to the GHGRF investment plans including, identifying GHG
emission reduction goals for sectors that do not have
targets.
5) Require that if ARB and CalEPA find that less than 10%
of all available moneys from a fiscal year was invested in
priority community investment areas the Governor include in
the annual budget additional allocations to projects in
priority community investment areas equal to the difference
between 25% of the prior year's allocation and the actual
allocation.
6) Require ARB to hold one public hearing on the required
report prior to its submission to the Legislature.
COMMENTS :
1) Back on 29.10 . Since the committee heard AB 1532 on July 2,
2012, amendments were taken in the Senate Appropriations
Committee and the on the Senate floor. These amendments: a)
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make changes to conform to the natural resources budget
trailer bill, SB 1018; b) add mitigation of the impacts and
effects of climate change on the state's communities,
economy, and environment to the list of complementary goals
for the use of the GHGRF; c) add or expand several identified
investments to the specified purposes for the use of GHGRF
moneys; d) require CalEPA to develop a methodology that
identifies priority community investment areas using
specified criteria and requires that 25% of the available
moneys be allocated to projects in community investment
areas; e) make various changes to the analyses required in
each investment plan and the required annual report; f)
strike the requirement that a program be consistent with the
requirements established by the Sinclair nexus test (see
Comment #6 below); and g) rather than requiring the
guidelines for agencies, applicants, and the public be
adopted by the ARB pursuant to the Administrative Procedure
Act instead specifies the guidelines be adopted after one or
more public hearings.
2) Proposed amendments . If AB 1532 is approved by the
Committee, the author is proposing further amendments to:
a) Require that the state not approve any funding until it
determines that use furthers the regulatory purposes of
the CGWSA.
b) Strike requirements that the moneys be used only to
achieve feasible and cost-effective GHG reductions.
c) Strike the specified list of eligible investments, and
instead specify investments may include, but are not
limited to, funding to reduce emissions through:
i) Energy efficiency, clean and renewable energy
generation, transmission and storage and other
related actions.
ii) Development of advanced technology vehicles and
vehicle infrastructure, advanced biofuels,
state-of-the art goods movement, and efficient public
transportation.
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iii) Land and natural resource conservation and
management, forestry, water use and supply, and
sustainable agriculture.
iv) Strategic planning and development of
infrastructure.
v) Increasing the in-state diversion of municipal
solid waste from disposal through waste reduction,
reuse and low-carbon recycled-content processing,
manufacturing and other market development.
vi) Community climate innovation programs that
foster projects consistent with the above categories
and are implemented by specified local entities.
vii) Research, development, and deployment of
innovative technologies or measures.
d) Strike the requirement that CalEPA develop a
methodology for identifying priority community investment
areas, instead requiring CalEPA to identify disadvantaged
communities using specified criteria.
e) Require that the Department of Finance, rather than
ARB, develop guidelines for administering agencies and
strikes several requirements for those guidelines.
f) Require that the Department of Finance on behalf of the
Governor and in consultation with ARB and other relevant
state agencies, rather than ARB develop and submit to the
Legislature the three investment plans, and strikes
several requirements, including the analysis of GHG
emissions by sector, and existing GHG emission reduction
measures.
g) Strike the requirement for an advisory body, instead
requiring the Climate Action Team along with the
Secretaries of Agriculture and Labor and Workforce
Agencies provide information to the Department of Finance
to assist in the development of the investment plans.
h) Require the investment plan to allocate 25% of
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available moneys to projects that provide benefits to
disadvantaged communities, and 10% of available moneys to
projects within disadvantaged communities, and strike
provisions requiring any shortfall to be made up in the
subsequent fiscal year.
i) Require that the Department of Finance, rather than ARB
submit the annual report, strike several requirements for
the report.
j) Authorize, upon appropriation, moneys in the GHGRF to
be available for administrative purposes.
aa) Specifies that all loan repayments and all interest
earning shall be deposited back into the GHGRF.
3) Purpose of Bill . According to the author, "there is no
current statutory direction as to the expenditure of the
revenue from Ýcap-and-trade allowance] auctions, whether for
eligible investments or criteria to use to differentiate
between potential projects, a process the State should use to
develop plans and programs for investment or direction on how
to ensure legislative oversight on the use of the funds? AB
1532 addresses the above issues by creating the Greenhouse
Gas Reduction Account, establishing the criteria and
requirements for use of the auction revenue, establishing the
program categories eligible for funding and defining a
process that the ARB shall use to develop an investment plan
and the role of the legislature in reviewing it."
4) Brief background on cap-and-trade . The adopted cap-and-trade
regulation imposes a cap on the aggregate GHG emissions
allowed from "capped sectors." The entities covered within
these sectors constitute approximately 85% of all statewide
GHG emissions. Each year the cap declines, thus resulting in
a reduction in GHG emissions over time. To comply with the
cap, covered entities must surrender to the state a number of
"compliance instruments" equal to the amount of their GHG
emissions, as expressed in the equivalent metric tons of CO2.
The regulations describe two types of compliance instruments:
a) an "allowance" to emit GHGs, all of which are generated by
the state in an amount equal to the cap and; b) an "offset"
resulting from an emissions reduction achieved in an uncapped
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sector and generated by third party pursuant to a protocol
adopted by ARB.
Under the cap-and-trade regulation many of the allowances are
freely allocated to the covered entities, some are held in a
price containment reserve, and the remainder auctioned.
Allowances received or purchased can be traded, thus creating
an emissions market which according to ARB minimizes
compliance costs and encourages businesses to invest in GHG
emissions reductions. ARB plans to hold auctions quarterly
starting in November 2012, and moneys collected for
allowances sold at auction are deposited into the Air
Pollution Control fund, with the exception of allowances sold
on behalf of Investor Owned Utilities (IOUs).
In fiscal year 2012-13 ARB plans to auction over 60 million
tons of allowances at a floor price of $10 per ton. The
amount of allowances auctioned declines in fiscal year
2013-14, before expanding as transportation fuels and natural
gas are brought into the cap-and-trade program. Barring a
change in the regulation as many as 230 million tons of
allowances will be auctioned in fiscal year 2015-16 which
will decline in subsequent years as the state approaches its
2020 limit.
IOUs and publicly owned utilities (POUs) are allocated free
allowances to cover the majority of their emissions in order
to lessen impacts of CGWSA implementation on electricity
ratepayers. ARB requires IOUs to auction them all; POUs are
permitted, but not required, to offer their allowances
auction. The revenues from these auctions are then returned
to the IOUs to be used for ratepayer benefit in accordance
with an ongoing rulemaking at the PUC.
5) Cap-and-trade revenues in the budget . The Governor's budget
proposal estimated that fee revenues from the first set of
auctions will be $1 billion in the 2012-13 Budget, with
auctions planned for November 2012, February 2013, and May
2013. Actual revenues cannot be known until the auctions
have been completed.
SB 1018, the natural resources budget trailer bill,
establishes the Greenhouse Gas Reduction Fund as a special
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fund in the State Treasury to receive all funds resulting
from cap-and-trade auctions. It also specifies that the fund
be appropriated in the annual Budget Act and requires the
Department of Finance to submit to the Legislature a proposal
for expenditure of the fund, unless the Legislature passes a
bill before August 31, 2012, specifying a process for
establishing a long-term spending plan with specified
requirements (see existing law #4 and #5).
SB 1018 also allows the PUC to allocate up to 15% of proceeds
from the auction of allowance distributed to IOUs for clean
energy and energy efficiency projects established by statute
and administered by the IOUs. The remainder of the IOU
allowance allocation proceeds must be credited directly to
residential, small business, and emissions-intensive
trade-exposed retail ratepayers.
6) Sinclair Paint nexus test . The Childhood Lead Poisoning
Prevention Act of 1991 required the Department of Health
Services to establish a regulatory fee on businesses that are
or were sources of lead contamination to implement various
lead poisoning programs. Sinclair Paint Company argued that
this regulatory fee was a tax because: a) the program
provides a broad public benefit, not a benefit to the
regulated business, and b) the companies that pay the fee
have no duties regarding the lead poisoning program other
than payment of the fee. The California Supreme Court upheld
the fee, as a "mitigation fee," ruling that the state may
impose fees on companies that make contaminating products and
use those proceeds to mitigate the adverse effects resulting
from those products.
According to an opinion received by the Legislative Analyst's
Office (LAO) from Legislative Counsel, revenues resulting
from ARB's cap-and-trade auctions would constitute
"mitigation fee" revenue, and be subject to the limitations
of the Sinclair nexus. Thus the revenues must only be used to
mitigate GHG emissions or the adverse effects caused by them.
Earlier versions of AB 1532 require that no funding be
approved unless it is determined to meet the limitations of
the Sinclair nexus, floor amendments strike this requirement.
7) Planning the investments . AB 1532 establishes the reduction
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of GHG emissions as the priority for the expenditure of
cap-and-trade and identifies several other complementary
goals. The bill further identifies several categories to be
considered for investment. These categories include emission
sources that, under the cap-and-trade program, are capped
sources as well as non-capped sources which may include
emission sources for which ARB has adopted GHG emission
offset protocols. Investment in GHG reductions from each of
these sources has different pros and cons. Investments in
non-capped sectors would provide incentives for the
reductions of GHG emissions from sources for which
insufficient incentives exist and may result in highly
cost-effective GHG emissions reductions that would not
otherwise have occurred. Investments in capped sectors add an
additional incentive, above the cap-and-trade program, for
GHG emission reductions and may reduce cap-and-trade
compliance costs.
8) Support and opposition concerns (as raised for June 18, 2013
version) . According to supporters of AB 1532, this bill
advances the goals of CGWSA by creating a clear and open
framework for developing the investment plan and the adoption
of funding criteria. Supporters also endorse application of
Sinclair tests in funding determinations.
Opponents state that AB 1532 prematurely anticipates proceeds
resulting from the allowance auctions that ARB may not have
the necessary authority to conduct. Opponents also contend
that not all priorities indicated in AB 1532 are consistent
with the Sinclair decision.
9) Related legislation . SB 237 (Wolk) would have established the
California Agricultural Climate Benefits Advisory Committee
and established eligible uses in the agricultural sector for
revenues generated from the cap-and-trade program and died in
the Senate Appropriations Committee.
SB 535 (De León) enacts the California Communities Healthy
Air and Revitalization Act and requires CalEPA to develop a
methodology for identifying priority community investment
areas. A minimum of 10% of moneys deposited in GHGRF must be
used in the most impacted and disadvantaged communities. SB
535 would also require ARB to develop investment plans and
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report on their progress to the Legislature and require the
Office of Environmental Health Hazard Assessment to prepare a
specified report by March 1, 2013, and every three years
thereafter. SB 535 contains several sections that conflict
with AB 1532 and amendments will be necessary to address the
conflicts. SB 535 has been referred to the Assembly Natural
Resources Committee pursuant Assembly Rule 77.2.
SB 1572 (Pavley) appropriates moneys from the auction of
allowances during the 2012-13 fiscal year to specified
projects and establishes the Higher Education Greenhouse Gas
Emissions Reduction Account within the GHGRF and any revenue
collected by the state board from the sale of an allowance to
the University of California or the California State
University must be deposited into this account. SB 1572 has
been referred to the Assembly Natural Resources Committee
pursuant Assembly Rule 77.2.
AB 1186 (Skinner) enacts the School Energy Efficiency and
Greenhouse Gas Reduction Act and establishes the School
Energy Efficiency and Greenhouse Gas Reduction Fund. The bill
requires 20% of specified revenues deposited during the
2012-13 fiscal year in the GHGRF to be used for a grant
program for eligible K-12 schools for energy efficiency
improvements. AB 1186 is currently on the Senate Floor.
AB 2404 (Fuentes) requires cap-and-trade revenues to be
deposited in a newly created 'Local Emission Reduction Fund'
where they are available to fund locally adopted greenhouse
gas reduction plans that emphasize specified co-benefits. All
reduction plans must be adopted by a local government in
furtherance of CGWSA goals. AB 2404 is currently in the
Assembly Appropriations Committee Suspense file.
SOURCE : Speaker Pérez
SUPPORT : American Federation of State, County and
Municipal
Employees, AFL-CIO
American Lung Association
American Society of Landscape Architects -
California
Asian Pacific Environmental Network
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Audubon California
Big Sur Land Trust
Bolsa Chica Land Trust
Breathe California
California Association of Local Conservation
Corps
California Biomass Energy Alliance
California Clean DG Coalition
California Climate and Agriculture Network
California Housing Partnership Corporation
California Infill Builders Federation
California Interfaith Power & Light
California ReLeaf
California State Association of Counties
California Transit Association
California Urban Forests Council
California Watershed Coalition
California Watershed Network
Californians Against Waste
CALSTART
Coalition for Clean Air
Electrification Leadership Council
Ella Baker Center, Green Collar Jobs Campaign
Energy Independence Now
Environmental Defense Center
Environmental Defense Fund
Friends of Harbors, Beaches and Parks
Golden Gate Audubon Society
Greenlining Institute
Honda North America
Intelligent Transportation Society of California
Land Trust of Santa Cruz County
Los Angeles County Metropolitan Transportation
Authority
Marin Agricultural Land Trust
Natural Resources Defense Council
Non-Profit Housing Association of Northern
California
Open Space District
Pacific Forest Trust
Peninsula Open Space Trust
Santa Clara County Open Space Authority
Sensys Networks
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Silicon Valley Leadership Group
Sonoma County Agricultural Preservation and Open
Space
District
State Building and Construction Trades Council of
California
Sunrun
The Nature Conservancy
The Wilderness Society
Trust for Public Land
Union of Concerned Scientists
Waste Management
Water Replenishment District of Southern
California
OPPOSITION : American Council of Engineering Companies of
California
California Asian Pacific Chamber of Commerce
California Business Properties Association
California Chamber of Commerce
California Chapter of the American Fence
Association
California Fence Contractors' Association
California Framing Contractors Association
California Grocers Association
California Independent Oil Marketers Association
California League of Food Processors
California Manufacturers & Technology
Association
California Metals Coalition
California Retailers Association
California Taxpayers Association
Cal Tax
Can Manufacturers Institute
Chemical Industry Council of California
Engineering Contractors' Association
Flasher/Barricade Association
Golden State Builders Exchange
Marin Builders' Association
National Federation of Independent Business
United Contractors
Western State Petroleum Association
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Support and opposition based on June 18th version of AB 1532.