Recently, Legislative Counsel Dian F. Boyer wrote an opinion answering questions from State Senator Jean Fuller of California’s 16^th Senate District regarding California Global Warming Solutions Act of 2006 (commonly known as AB 32) and Executive Branch Authority. The nonbinding opinion answered three questions:

1. Does the act authorize the Governor or the ARB to establish a statewide GHG emissions limit that is below the state’s 1990 level of emissions and that would be applicable after 2020?
2. Does the act authorize the Governor or the ARB to establish a system of market-based declining annual aggregate emissions limitations [i.e. cap-and -trade] for sources or categories of sources of GHGs that would be applicable after 2020?
3. May the ARB increase the fee authorized under [Health and Safety Code] section 38597 in order to achieve a statewide emissions limit that is below the 1990 level and that would be applicable after 2020?

The opinion answers all these questions in the negative examining executive branch constitutional authority under Article V, Section 1 of the California Constitution, statutory construction under the specific language of AB 32 (Health and Safety Code section 38500 et seq.), the doctrine of separation of power under Article III, Section 3 of the California Constitution, and the sparse existing case law on executive orders. This blog post will examine this opinion and the future of GHG regulation in California.

Brief History of Climate Change Executive Orders and Legislation

Governor Schwarzenegger issued Executive Order S-3-05 in June 2005 creating specific targets for reductions (as opposed to a specified limit later created by AB 32). S-3-05 ordered:

1. That the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; by 2050, reduce GHG emissions to 80 percent below 1990 levels; and

2. That the Secretary of the California Environmental Protection Agency (“Secretary”) shall coordinate oversight of the efforts made to meet the targets with: the Secretary of the Business, Transportation and Housing Agency, Secretary of the Department of Food and Agriculture, Secretary of the Resources Agency, Chairperson of the Air Resources Board, Chairperson of the Energy Commission, and the President of the Public Utilities Commission; and

3. That the Secretary shall report to the Governor and the State Legislature by January 2006 and biannually thereafter on progress made toward meeting the greenhouse gas emission targets established herein; and

4. That the Secretary shall also report to the Governor and the State Legislature by January 2006 and biannually thereafter on the impacts to California of global warming, including impacts to water supply, public health, agriculture, the coastline, and forestry, and shall prepare and report on mitigation and adaptation plans to combat these impacts.

The legislature responded by passing AB 32 (California Global Warming Solutions Act of 2006), which the governor signed on September 27, 2006. AB 32 codified the 1990 GHG reduction emission targets as express limits to be met by 2020 under Health and Safety Code section 38550. AB 32 further authorized the use of emission reductions measures, including a market-based declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emission (i.e. cap-and-trade) from January 1, 2012, to December 31, 2020 under Health and Safety Code section 38562. AB 32 did not codify the 2010 or the 2050 targets in S-3-05 as an express emissions limit.

Nearly ten years later, on April 29, 2015, Governor Brown issued Executive Order B-30-15 consistent with S-3-05. B-30-15 ordered:

1. A new interim statewide greenhouse gas emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030 is established in order to ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.

2. All state agencies with jurisdiction over sources of greenhouse gas emissions shall implement measures, pursuant to statutory authority, to achieve reductions of greenhouse gas emissions to meet the 2030 and 2050 greenhouse gas emissions reductions targets.

3. The California Air Resources Board shall update the Climate Change Scoping Plan to express the 2030 target in terms of million metric tons of carbon dioxide equivalent.

4. The California Natural Resources Agency shall update every three years the state’s climate adaptation strategy, Safeguarding California, and ensure that its provisions are fully implemented. The Safeguarding California plan will:

• Identify vulnerabilities to climate change by sector and regions, including, at a minimum, the following sectors: water, energy, transportation, public health, agriculture, emergency services, forestry, biodiversity and habitat, and ocean and coastal resources;
• Outline primary risks to residents, property, communities and natural systems from these vulnerabilities, and identify priority actions needed to reduce these risks; and
• Identify a lead agency or group of agencies to lead adaptation efforts in each sector.

5. Each sector lead will be responsible to:

• Prepare an implementation plan by September 2015 to outline the actions that will be taken as identified in Safeguarding California, and
• Report back to the California Natural Resources Agency by June 2016 on actions taken.

6. State agencies shall take climate change into account in their planning and investment decisions, and employ full life-cycle cost accounting to evaluate and compare infrastructure investments and alternatives.

7. State agencies’ planning and investment shall be guided by the following principles:

• Priority should be given to actions that both build climate preparedness and reduce greenhouse gas emissions;
• Where possible, flexible and adaptive approaches should be taken to prepare for uncertain climate impacts;
• Actions should protect the state’s most vulnerable populations; and
• Natural infrastructure solutions should be prioritized.

8. The state’s Five-Year Infrastructure Plan will take current and future climate change impacts into account in all infrastructure projects

9. The Governor’s Office of Planning and Research will establish a technical, advisory group to help state agencies incorporate climate change impacts into planning and investment decisions.

10. The state will continue its rigorous climate change research program focused on understanding the impacts of climate change and how best to prepare and adapt to such impacts.

These executive orders create emission reduction targets – not limits – in addition to directing executive agency actions. This frames the issue of parsing the difference between a target found in an executive order and a limit created by statute to understand whether these executive orders unconstitutionally enact, enlarge, or limit legislation.

Targets v. Limits

Unfortunately, there is not much to look to for guidance in this respect. The Legislative Counsel’s Opinion relies on one U.S. Supreme Court case (Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 U.S. 579 (Youngstown)) and one California Supreme Court case (Professional Engineers in Cal. Government v. Schwarzenegger (2010) 50 Cal.4th 989 (Professional Engineers) in addition to standard statutory construction principles and case law. Youngstown addressed the constitutionality of a presidential executive order directing the Secretary of Commerce to take possession of and operate privately-owned steel mills to prevent work stoppages from labor disputes. Professional Engineers addressed a governor’s executive order that imposed mandatory unpaid furloughs on state employees. These cases address the constitutional limits of a specific types of actions by a California governor and a U.S. president but do not directly address a more general issues of whether the issuance of relevant executive order emission reduction targets are in fact enacting, enlarging, or limiting legislation.

The language of the executive orders may provide clarification. Executive Order B-30-15 appears to enlarge the limits and authorizations of AB 32 by ordering “all state agencies with jurisdiction over sources of greenhouse gas emissions shall implement measures, pursuant to statutory authority, to achieve reductions of greenhouse gas emissions to meet the 2030 and 2050 greenhouse gas emissions reductions targets.” As the Legislative Counsel Opinion states, existing Health and Safety Code language does not authorize the ARB or the Governor to set emission limits after 2020. The language of the executive order that implements measures to achieve post-2020 reduction targets consequently appears to go beyond statutory authorization. Assuming that both executive orders create actual limits instead of targets, and assuming that the legislature will not provide additional specific limits by statute, as it has done previously and proposes to do in the stalled SB 32 codification of the 2030 interim targets as emission limits, then California has found itself in a quandary with a three and half year period to fix it.

Judicial Consistency with Executive Orders over Local and Regional CEQA Litigation and Pending Review

The courts have struggled with to resolve litigation over long-term land use and transportation planning processes subject to the California Environmental Quality Act (CEQA). Specifically, in Cleveland National Forest Foundation v. SANDAG the Fourth Appellate District found that SANDAG abused its discretion by approving an environmental impact report (EIR) that lacked a consistency analysis with the overarching emission reduction goals out to 2050. To reach this conclusion, the court combined the emission reduction targets from Executive Order S-3-05, AB 32’s 2020 limits, SB 375’s 2035 limits, and the California Air Resources Board’s (CARB) regional emission reduction targets to provide a state climate policy that extends out to 2050. The court found that SANDAG’s analysis violated state climate policy and CEQA because GHG emissions will increase between 2020 and 2050. The decision left SANDAG with the burden of forecasting regional emission reduction targets out to 2050 using only the S-3-05 statewide targets because the SB 375 CARB regional emission reduction limits only extend to 2035.

This case provides insight with regards to how courts may interpret and apply the long-term emission reduction targets of existing executive orders, particularly pertaining to entities outside of the executive branch. Upon examining a complete administrative record to support a multi-decade plan, this court relied heavily on targets that provide long term guidance for emission reductions. Put another way, where the legislature has failed to provide long term targets or limits, courts have used the emission reduction target from an executive order.

Presently, the California Supreme Court accepted limited review of this case on the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? While this review is not specific to AB 32 analysis and programs under the executive orders, it could provide guidance or precedent on the constitutionality of S-3-05 (and B-30-15 which is not part of the litigation because it was issued approximately two and half years after this case was filed in superior court).

Moving Forward

It is important to remember that the Legislative Counsel’s opinion (just like an Attorney General Opinion) carries no legal weight and is not binding or precedent setting. It is only an opinion issued in response to a specific inquiry by an elected representative. Despite this, the Legislative Counsel’s Opinion brings the forefront the issue of how GHG emissions limits and relevant implementing programs should be authorized past 2020. Consistency and predictability is needed to ensure that the state carries out measurable and reasonable actions to reduce GHGs. It is also needed to guide judicial review and local and regional planning processes under CEQA.

SB 32, as presently proposed, would provide GHG reduction limits of 40% below 1990 levels by 2030. This bill did not reach the Governor’s desk last session and contains very specific legislative oversight of any new ARB scoping plan. It is unclear whether it will be signed into law by the end of this session. Additionally, neither SB 32 – nor any other proposed active legislation this session – contain reauthorization of the cap-and-trade program beyond 2020 under Health and Safety Code section 38562(c). If the analysis from the Legislative Counsel’s Opinion is correct, this means that cap-and-trade will no longer be authorized past 2020. Legislative action is required to both authorize cap-and-trade beyond 2020 and establish future limits to achieve California’s GHG emission goals.