California Holds Fast to GHG Reduction in the Face of the Trump Administration

by Farella Braun + Martel LLP

Farella Braun + Martel LLP

Published by the ABA Section of Environment, Energy, and Resources
Joint Newsletter: Energy, Climate Change, and Environmental Law under Trump

The inauguration of Donald J. Trump as the 45th President of the United States on January 20, 2017, brought with it levels of angst and concern not felt for some time within the environmental community. While some welcome the notion of “regulatory reform” that was the hallmark of the Trump campaign and that has formed the framework for President Trump’s first 100 days in office, others, particularly among governmental leaders in California, have vowed to fight legislative and regulatory reform, and to respond forcefully to executive orders flowing from the White House.

Just prior to the November 2016 election, California passed Senate Bill 32 (SB 32) and Assembly Bill 197 (AB 197) (codified at, respectively, Cal. Health & Safety Code § 38566 and Cal. Health & Safety Code §§ 38506, 38531, 38562.5, 38562.7, 39510, 39607 and Cal. Gov’t Code § 9147.10, et seq.), which continued California on its required objective to cut greenhouse gas (GHG) emissions by at least 40 percent below 1990 levels by 2030. The reductions were identified by California Governor Jerry Brown’s office at the time as the most ambitious reduction goals in North America. The basis for these reductions was set out in the landmark California Global Warming Solutions Act of 2006, Assembly Bill 32 (AB 32) (codified at Cal. Health & Safety Code § 38500, et seq.).

So where do California and other like-minded states go from here in the context of targeted reduction of GHGs and providing incentives for the development of sources of alternative energy? Has the president, as some suggest, signed Earth’s “death warrant” by issuing executive orders in late March directing the U.S. Environmental Protection Agency (EPA) to “rework” its Clean Power Plan, ordering the Department of Interior to lift its current moratorium on federal coal leasing and loosening restrictions on oil and gas development (including methane flaring) on federal lands, and instructing all federal agencies to stop factoring climate change into the environmental-review process for federal projects (with the federal government recalculating the “social cost of carbon”)? (See, e.g., White House, Presidential Executive Order on Promoting Energy Independence and Economic Growth (Mar. 28, 2017).) As discussed below, California has responded in a number of coordinated and related ways to the Trump administration’s efforts to roll back regulations. Indeed, California’s Attorney General Xavier Becerra was quoted as saying California will continue “pushing the envelope” on environmental quality and taking action on climate change. (See Law360, California AG Promises to Battle Trump on Enviro Issues, Mar. 30, 2017.)

First and foremost, California will continue to push toward a 40 percent reduction in GHG emissions by 2030, and toward 80 percent by 2050. California has been joined by other states to reduce GHGs: among them New York, Connecticut, Delaware, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The federal basis to regulate GHGs stems, of course, from EPA’s endangerment finding regarding the threat posed by carbon dioxide and other GHGs, which followed the U.S. Supreme Court’s ruling in 2007 in Massachusetts v. EPA, 549 U.S. 497 (2007).

California has also stayed firm on strict emissions standards for cars and trucks, exemplified in late March by the California Air Resources Board unanimous vote to maintain the state’s 2025 limits on goals for zero-emission vehicle sales through 2030 (at 15 percent of total sales by 2025), and to nearly double the average fuel economy of new cars and trucks by 2025 to 54.5 miles per gallon. (See, e.g., State of Cal. Air Resources Bd.,  Advanced Clean Cars Midterm Review (Mar. 24, 2017).) The transportation sector accounts for around 40 percent of GHG emissions, so targeting this sector is seen as crucial by the Air Resources Board and the governor’s office. (See Cal. Envtl. Protection Agency, California Greenhouse Gas Emission Inventory—2016 Edition (June 17, 2016).) California’s Low Carbon Fuel Standard also plays an important role in addressing GHG emissions from the transportation sector. California’s long-standing waiver to create its own automotive and truck standards derives from the federal Clean Air Act (42 U.S.C. § 7401, et seq.), and whether the Trump administration attempts to follow the (ultimately unsuccessful) Bush administration’s effort in 2007 to reject a waiver application from California remains to be seen.

Another pillar of California’s climate action plan involves what have been termed “short-lived climate pollutants” or “super pollutants”— climate pollutants other than carbon dioxide such as methane, fluoronated gases including hydrofluorocarbons, and black carbon. In contrast to the Trump administration’s rollback of oil and gas regulations on federal lands, California, through the Air Resources Board, approved methane emission limits on the oil and gas sector to be phased in between 2018 and 2020, to reduce emissions from the sector by 1.4 million metric tons of equivalent carbon dioxide annually. (See, e.g., Cal. Envtl. Protection Agency, CARB Approves Rule for Monitoring and Repairing Methane Leaks from Oil and Gas Facilities (Mar. 23, 2017).) With estimates of $50 million worth of “wasted” gas every year due to leaky equipment, the requirements will attempt to curb methane leaks from existing facilities, and to prevent (or minimize) the type of catastrophic leak that occurred from late 2015 to early 2016 at Southern California’s Aliso Canyon natural gas storage field. The new limits are expected to cost the industry over $27 million annually, before savings in natural gas releases are factored in. (See Carolyn Whetzel, California Methane Rule First Stab at Climate “Super Pollutants, 32 Toxic L. Rep. (BNA) 353 (Mar. 30, 2017).)

And as a further response to the ongoing rollback of environmental, natural resources, and public health protections from Washington, D.C., California also recently introduced three proposed bills: Senate Bills 49, 50, and 51. SB 49 would render federal environmental standards enforceable under state law; SB 50 would establish a policy to discourage the transfer of federal public land in California to owners other than the federal government; and, SB 51 proposes additional whistleblower protections for federal employees working in the environmental sciences and climate change-related fields.

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Farella Braun + Martel LLP

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