Proposed “Preserve California” Legislative Package Would Ensure California’s Stringent Environmental Standards Despite Trump
In February, the California Senate proposed the “Preserve California” legislative package to establish enforceable California Environmental Laws that are more stringent than the resulting federal environmental law if certain laws are repealed or modified by President Trump and the GOP-controlled U.S. Congress. This package is clearly an attempt to push back against Trump who has signaled he will reduce environmental protections and reduce funding for environmental enforcement of the remaining regulations.
California Embraces Federalism
In an ironic twist, the “Preserve California” package is a line in the sand for state’s rights to enforce laws within the state boundaries. Environmental laws have long suffered disputes between local interests and national ideas. During Obama’s Administration, there were jurisdictional controversies involving EPA’s Clean Water Rule and the Clean Power Plan, as well as many disputes over natural resource management and energy policy. Just one year ago, we were monitoring challenges brought by many states other than California to EPA’s Clean Water Rule (or Waters of the U.S. Rule – WOTUS). Supporters, including the State of California, argued that there was a need for uniformity across the states and a federal regulation was needed to provide consistency in application. President Trump repealed that rule by Executive Order on February 28, just days after the California Senate unveiled the “Preserve California” package. Now, the state is asserting federalism goals to retain the WOTUS rule in the state, while the rest of the country returns to the Clean Water Act regulations that preceded WOTUS.
The package included California State Senate Bill 49, the “California Environmental Defense Act.” This Act would set baseline standards based on the Obama Administration’s regulations under the federal Clean Air Act, Clean Water Act, Endangered Species Act, Safe Drinking Water Act, Fair Labor Standards Act, Occupational Safety and Health Act, and Mine Safety and Health Act, all of which President Trump repealed immediately upon taking office. Bick Law LLP’s California Environmental Litigators and California Environmental Regulatory Lawyers are closely monitoring SB 49, which is set for a hearing May 8 in the Senate Appropriations Committee.
If enacted, SB 49 will:
- Prohibit state or local agencies from amending or revising regulations to be less stringent than baseline federal standards, (baseline standards based on the Obama Administration’s regulations);
- Require specified agencies to take prescribed actions to maintain and enforce requirements and standards for air, water, and protected species;
- Make conforming changes to the Protect California Air Act of 2003;
- Authorize a person acting in the public interest to bring an action to enforce certain standards and requirements;
- Prohibit a state agency that implements those laws from amending or revising its rules and regulations in a manner that is less stringent in its protection of workers’ rights or worker safety than standards established by federal law in existence as of January 1, 2016;
- Authorize petitions for a writ of mandate to compel a state or local agency to perform an act required by, or to review a state or local agency’s action for compliance with the Act; and
- Require state agencies, on a semi-annual basis, to report to the Legislature on compliance with the above requirements.
Specifically, with respect to endangered species, SB 49 could add 74 animals to the California Endangered Species Act that are currently protected, but not “endangered” under the federal Endangered Species Act. It is also foreseeable that habitat modification rising to the level of “take” under the federal ESA would require incidental take permit applications.
SB 49 will authorize citizens’ suits if the U.S. EPA revises standards to be less stringent than the baseline standards, or if the federal laws are amended to repeal their citizen suit provisions.
“Preserve California” also includes SB 50, “The Public Lands Protection Act.” SB 50 establishes a new state policy to discourage conveyances of federal lands to private developers for resource extraction and directs the state Lands Commission to establish a right of first refusal by the state of any federal lands proposed for sale of conveyance to other parties. The state would review any transactions involving federal lands in California and protect lands, where deemed necessary, by state action.
SB 51 rounds out the package by protecting public data and whistleblowers. This measure would ensure federal employees do not lose state licensure for revealing violations of law, unethical actions, or dangers to public health and safety. It also would direct state environmental and public health agencies to protect any information or data under state law, even if parties in Washington, D.C. order censorship or destruction of such data. On April 25th, SB 51 was amended and re-referred to the Committee on Appropriations. Bick Law LLP environmental regulatory attorneys will continue to follow this important proposed legislation.
Bick Law LLP’s California Environmental Litigation Lawyers and California Environmental Regulatory Lawyers are closely monitoring the “Preserve California” package to prepare for impacts to agricultural, manufacturing, energy, transportation, real estate, and products clients. Follow the Bick Law LLP blog for updates.