Environment

SACRAMENTO – California Attorney General Xavier Becerra today, leading a 19-state coalition, filed a comment letter opposing the Council of Environmental Quality’s (CEQ) draft guidance on consideration of greenhouse gas emissions under the National Environmental Policy Act (NEPA). NEPA serves as the cornerstone of America’s environmental regulatory framework and requires agencies to consider environmental impacts, including greenhouse gas emissions and the effects of climate change, as part of their decision-making process. The requirement to consider greenhouse gas emissions and climate change was the result of guidance issued by the Obama Administration in 2016 that the Trump Administration is now attempting to revoke. In the comment letter, the coalition asserts that the Trump Administration’s draft guidance encourages agencies to violate NEPA and is arbitrary and capricious.

“This reckless guidance by the Trump Administration leads agencies to ignore the climate crisis, the most pressing environmental challenge of our time,” said Attorney General Becerra. “We’re reminding President Trump once again: if you try to backslide on the safeguards protecting our nation’s environment and put polluters in the driver’s seat, we will hold you accountable."

Enacted in 1969, NEPA is one of the nation’s foremost environmental statutes. NEPA requires that before any federal agency undertakes a “major federal action significantly affecting the quality of the human environment,” it must consider the environmental impacts of the proposed action, alternatives to the action, and any available mitigation measures. Nearly every federal action, from the approval of significant energy and infrastructure projects to key decisions concerning the management of federal public lands, requires compliance with NEPA.

In the comment letter, the coalition asserts that the guidance encourages agencies to violate NEPA, is arbitrary and capricious, and should be withdrawn. The draft guidance moves in the wrong direction, muddying the waters on the analysis of climate change impacts under NEPA and creating new legal risks for projects subject to NEPA. The letter outlines a number of concerns, including that the draft guidance:

• Unlawfully and arbitrarily ignores the growing body of scientific evidence pointing to the threats of climate change, and the contribution of greenhouse gas emissions to this threat;
• Subverts the purpose and requirement of NEPA to promote informed decision-making, by disregarding climate change, the most pressing environmental issue of our time;
• Fails to clarify how agencies should consider indirect greenhouse gas emissions, including upstream or downstream emissions caused by projects such as pipelines and mining;
• Includes vague and undefined terms that would allow agencies to unlawfully cast aside their obligations under NEPA and that conflict with the straightforward language of the previous 2016 guidance;
• Unlawfully suggests that agencies may meet NEPA requirements by comparing projects’ greenhouse gas emissions to other estimates and providing a qualitative summary discussion, which is insufficient;
• Supports an unbalanced approach to cost-benefit analysis by allowing agencies to exclude the costs or quantities of climate impacts;
• Discourages a consideration of required mitigation methods as well as the exploration of reasonable alternatives to reduce climate change; and
• Fails to consider coordination and consistency between NEPA and state environmental analysis.

In August 2018, Attorney General Becerra urged CEQ to carefully consider any changes to NEPA regulations and to prioritize the environment and public health if the Administration chose to move forward with revisions to its guidance.

Joining Attorney General Becerra are the attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the comment is available here.

Twenty percent of California lands would be subject to proposed rule

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of five attorneys general, filed a comment letter today with the U.S. Department of Agriculture’s Forest Service (Forest Service) regarding its unlawful proposal to roll back environmental review and public participation requirements for actions on National Forest lands. In particular, the proposed rule would undermine key elements of the agency's National Environmental Policy Act (NEPA) regulations designed to ensure that the vast majority of Forest Service actions are subject to public participation and disclosure, as well as essential environmental reviews for actions that may have significant impacts. Safeguarding these protections and preserving public participation is of paramount importance to California, where the Forest Service administers nearly 20 percent of all land. These areas are home to numerous imperiled species such as the California condor, bighorn sheep, and Pacific fisher, and include numerous scenic and ecologically important sites such as Mt. Shasta, the Lake Tahoe basin, Mt. Whitney, and the Giant Sequoia National Monument.

“This proposed rule is a blatant attempt by the Trump Administration to rip out the backbone of our conservation laws in order to fast-track commercial projects on our National Forest land,” said Attorney General Becerra. “These treasured public lands must be preserved for the safety and use of future generations, not stripped for profit. We will not stand idle as environmental protections of our National Forests are sidestepped and the public is cut out of the process. We’ll fight to protect our National Forests, our environment, and the people of California.” 

The coalition of attorneys general are asserting that the proposed rule is arbitrary and capricious under the Administrative Procedure Act by eliminating public input for almost all Forest Service actions, contradicting NEPA’s purposes, and lacking a reasoned basis. Specifically the rule is unlawful because it:

• Severely reduces public input by eliminating "scoping" for projects that do not require an environmental impact statement (EIS), or nearly all of Forest Service actions;
• Illogically and illegally expands the number of categorical exclusions under the presumption that environmental analysis is unnecessary, including for projects such as construction of up to five miles of road or commercial timber harvests of up to 4,200 acres;
• Lacks a reasoned explanation for removing the presence of sensitive species from the list of extraordinary circumstances barring the use of a categorical exception;
• Discards actions that alter roadless and wilderness areas from the list of actions requiring preparation of an EIS without logical explanation;
• Allows a previous NEPA analysis to satisfy NEPA requirements for a new project, without site-specific review, study of cumulative impacts, or public participation;
• Ignores the impacts of climate change, including climate-fueled fires and the contribution of greenhouse gas emissions to the current climate crisis; and
• Exempts itself from any NEPA documentation prior to the issuance of any final rule. 

While the Forest Service claims that these changes are needed to "increase efficiency" given the increased resources spent on wildfire suppression, the proposed rule does nothing to address the threats posed by climate change or provide an approach that would actually protect communities from increased wildfire risk.  Moreover, all of these changes would undercut NEPA’s intended purposes of providing for public participation to ensure that federal agencies take a "hard look" at the environmental impacts of their actions before those actions occur.

Joining Attorney General Becerra in filing the comment letter are the attorneys general of Colorado, Illinois, New York, and Vermont.

A copy of the comment letter can be found here.

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a multistate coalition, filed an amicus brief in support of plaintiffs in Physicians for Social Responsibility v. Wheeler. In this case, plaintiffs are challenging a directive by the U.S. Environmental Protection Agency (EPA) that prohibits any scientist who receives EPA grant money from serving on any EPA advisory committee. In the amicus brief the states assert that the directive hampers California’s ability to protect its residents from environmental harms and would deprive scientists at the University of California conducting research on behalf of the EPA of the opportunity to participate on an EPA advisory committee. That restriction harms both the scientists and EPA.

“We’re calling out EPA’s attempt to purge independent academic scientists from EPA advisory committees and stack the deck with industry-funded representatives,” said Attorney General Becerra. “Advisory boards are strengthened by academic and government scientists who shouldn’t have to sacrifice their funding in order to participate on these committees. We applaud the scientists bringing this case to court. In California, we believe in and proudly support science.”

Advisory committees play an essential role in EPA decision-making, providing the EPA with high-level scientific guidance on both individual regulatory standards and on the EPA's overall direction. The directive undermines the integrity of the EPA decision-making process and threatens to do serious harm to our health and environment. It is forcing many of the best environmental and public health scientists in the country to choose between obtaining valuable EPA funding for their research or serving on high-impact EPA advisory committees. Many academic scientists get funding from EPA for their research and serve on these advisory committees. The EPA wrongly contends that scientists who receive grant funding from the EPA have a conflict of interest and ignores that scientists who receive funding from industry often have a substantial personal and financial interest in the work of EPA advisory committees. As a direct result of the directive, the percentage of industry-backed scientists on these committees has dramatically increased.

A copy of the brief is available here.

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of 12 attorneys general in submitting a comment letter opposing a proposal by the U.S. Environmental Protection Agency (EPA) that risks exposing endangered species to harmful pesticides. Under the proposal, the EPA would substantially alter the current method used to determine whether, and to what extent, a pesticide “may affect” an endangered species or critical habitat and thereby trigger the requirement to consult with federal wildlife agencies regarding pesticide impacts and mitigation measures. In the comment letter, the Attorneys General assert the proposal will allow more pesticide registrations to go forward without, among other things, being assessed by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which are responsible for listing and protecting endangered species.

“The Trump Administration’s proposed pesticide evaluation method recklessly threatens wildlife and our state’s natural ecosystem,” said Attorney General Becerra. “There are nearly 300 endangered species in California alone that could be put at risk by this proposal. By design, pesticides are toxic and assessing their impact should not be taken lightly. We’re urging the EPA to rescind this foolhardy proposal.” 

In the letter, the coalition argues the proposal violates the Endangered Species Act (ESA) and is arbitrary and capricious. Pesticides must be registered with the EPA before they can be used, sold, and distributed in the United States. Under the proposed changes to the evaluation method, the EPA will be able to approve pesticides without first consulting the U.S. agencies that are charged with protecting endangered species. In particular, the proposed evaluation method changes the scope and requirements for pesticide evaluation by:

• Unlawfully redefining and limiting what species may be considered impacted by the pesticide;
• Abandoning the prior, more precautionary approach to estimating the potential amount and location of pesticide use;
• Excluding consideration of impacts to species where pesticide use only infringes on small percentages of their habitat;
• Artificially limiting consideration of pesticide drifts;
• Ignoring potential effects on species if there is uncertainty about whether they are extinct; and
• Failing to consider impacts of species on federal lands. 

In California, the ESA is credited with the survival and recovery of endangered species such as the brown pelican, the grey wolf, and the California condor. The current pesticide evaluation method allows federal agencies to prepare biological opinions and alternatives for proposed actions affecting wildlife. Without these protections, pesticides like DDT would continue to threaten the extinction of animals such as bald eagles. Impacts to wildlife from pesticide exposure can cause acute or long-term harms like cancer, kidney and liver damage, and birth defects. Exposure can also alter an organism’s behavior, affecting its ability to survive. For example, for bees, even small levels of pesticides can result in sublethal effects that negatively influence their mobility, feeding behaviors, and navigation.

In filing the comment letter, Attorney General Becerra joins the Attorneys General of New Mexico, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Washington, Vermont and the District of Columbia.

A copy of the letter is available here.

Chlorpyrifos pesticide residue remains on many foods consumed by infants and children

SACRAMENTO — California Attorney General Xavier Becerra today, as part of a multistate coalition, filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit challenging the U.S. Environmental Protection Agency’s (EPA) refusal to make a required safety finding for the dangerous pesticide chlorpyrifos. Chlorpyrifos is a pesticide used on more than 80 food crops. Infants and children consume a wide variety of these crops and are especially susceptible to the adverse health effects caused by the pesticide, which includes neurodevelopmental delays and other problems. The states’ Ninth Circuit petition concerns EPA’s failure to take action on a proposed rule that would have prevented exposure of the public to chlorpyrifos in food.

“Parents shouldn’t have to question whether everyday fruits and vegetables will poison their children,” said Attorney General Becerra. “The EPA is egregiously sacrificing our children’s health by refusing to make a determination on this dangerous pesticide. Today we’ll hold their feet to the fire and force them to do their job.”

“Chlorpyrifos causes significant harm to our children, farm workers and vulnerable communities,” said Governor Gavin Newsom. “California is doing our part to address the harms of this pesticide — it’s time for D.C. to do theirs.”

The coalition asserts that the order denying the states’ objections by Alexandra Dunn, Assistant Administrator of the EPA – also known as the Dunn Order – should be overturned as arbitrary and capricious and unlawful. The petition states the order:

• Violates the Federal Food, Drug and Cosmetic Act (FFCDA), which requires that the EPA ensures there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to pesticide chemical residue;
• Contains no determination of a reasonable certainty that no harm will result from exposure to residue of the pesticide, as required by the FFDCA;
• Disregards EPA’s statutory requirement to publish a safety determination of the pesticide residue for infants and children;
• Continues EPA’s years-long pattern of delay in addressing the hazards of chlorpyrifos; and
• Departs from EPA’s prior determination that it could not find chlorpyrifos safe.

Attorney General Becerra called on the EPA to issue safety findings on the pesticide in June 2017. In March of the following year, the Ninth Circuit granted Attorney General Becerra’s motion to intervene in another lawsuit after the EPA reversed course on a rule that would revoke all residue levels of chlorpyrifos in food, and issued an order that left in effect the existing level without making a required finding on the pesticide’s safety.

A copy of the petition can be found here.

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement after a Superior Court granted a preliminary injunction halting Westlands Water District's participation in an unlawful project to raise the Shasta Dam: 

“The court has stopped Westlands Water District from moving forward with a project that would hurt the people and environment in our state,” said Attorney General Becerra. “Maybe others believe they’re above the law and can get away with it. But, in California, we’re prepared to prove otherwise.” 

Attorney General Becerra filed the lawsuit on May 13, 2019 to block Westlands from taking an unlawful action to assist in the planning and construction of a project to raise the height of the Shasta Dam. The project poses significant adverse effects on the free-flowing condition of the McCloud River and on its wild trout fishery, both of which have special statutory protections under the California Wild and Scenic Rivers Act. The Act prohibits any agency of the State of California, such as Westlands, from assisting or cooperating with actions to raise the Shasta Dam.

A copy of the ruling can be found here.

SACRAMENTO - California Attorney General Xavier Becerra, as part of a coalition of 22 attorneys general, today filed a letter in support of Congress’ efforts to pass legislation addressing the dangers of per- and polyfluoroalkyl substances (PFAS). In the letter, the attorneys general provide recommendations to address PFAS contamination and urge that any new law not impair states’ protection of their own communities. PFAS are a group of thousands of chemicals, including perfluorooctnoic acid (PFOA) and perfluorooctane sulfonate (PFOS), widely used on consumer products including nonstick cookware, water- and wrinkle-resistant clothing, and food packaging, as well as in firefighting foam. PFAS chemicals do not break down in the environment and as a result, these “forever chemicals” accumulate in human bodies. PFAS chemicals have been shown to cause adverse health effects including developmental defects, kidney cancer, liver damage, and impacts on the thyroid and immune system. It is estimated that 99% of Americans have detectable levels of PFAS in their bloodstream.

“Millions of products are tainted with dangerous PFAS chemicals, which end up in the water we drink and the food we eat,” said Attorney General Becerra. “The prevalence of these chemicals means that addressing the damage they cause, and doing it quickly, is that much more crucial. We encourage Congress to pass legislation to address the dangers of PFAS and to repair the destruction these chemicals have done to our environment and the health of our communities.”

Congress is currently considering multiple pieces of legislation that address PFAS exposure/contamination issues. In the letter, the attorneys general assert that legislation to regulate PFAS chemicals should: 

• Designate certain PFAS chemicals as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);
• Fund cleanups of contaminated public water systems;
• Include PFAS in the Toxic Release Inventory, which would allow for the tracing of contamination sources and knowledge of contaminated areas;
• Require nationwide sampling for PFAS chemicals to be conducted by the U.S. Geological Survey;
• Ban the use and storage of firefighting foam, a known source of PFAS contamination, at U.S. military bases and any other federal facilities; and
• Provide medical screening for PFAS exposure of firefighting personnel and members of the community who may be impacted by PFAS contamination.

Attorney General Becerra has taken continued action to protect the public from the dangers of PFAS. On June 11, 2019, Attorney General Becerra filed a comment letter opposing the U.S. Environmental Protection Agency’s Draft Interim Recommendations for addressing groundwater contaminated with PFAS.

Joining Attorney General Becerra in the letter are the Attorneys General of Connecticut, Delaware, District of Columbia, Guam, Hawai’i, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, New Mexico, New York, Oregon, Rhode Island, Virginia, Washington, and Wisconsin.

A copy of the letter can be found here.

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of 14 states and the Pennsylvania Department of Environmental Protection, today filed a comment letter denouncing the U.S. Environmental Protection Agency’s (EPA) guidance that attempts to roll back state involvement in the permitting of federal projects under Section 401 of the Clean Water Act. Section 401 and other provisions of the Clean Water Act preserve states’ authority to protect the quality of the waters within their borders. In the comment letter, Attorney General Becerra asserts that EPA’s guidance, which implements President Trump’s April 2019 Executive Order, is unlawful, directly contravenes both the language and intent of the Clean Water Act, and undermines state authority recognized under the Clean Water Act. 

“EPA’s guidance is yet another reckless attempt by the Trump Administration to weaken Clean Water Act protections for the nation’s waters,” said Attorney General Becerra. “California has an inherent right under the Clean Water Act to evaluate whether projects meet our water quality standards and to impose conditions on federal projects to protect our water resources. The EPA must withdraw this unlawful attempt to strip states of their authority to regulate water quality.”

The Clean Water Act reflects Congress’ policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into the waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements. This certification process ensures adequate assessment of the water quality impacts of proposed federal actions and the imposition of necessary conditions to remedy these impacts. 

The multistate coalition argues that EPA’s guidance is improper. Specifically, the coalition objects to EPA’s disregard for the Clean Water Act, which provides states with a reasonable timeframe to complete the Section 401 water quality certification process. Furthermore, the group opposes EPA’s attempt to restrict the scope of states’ review of projects under Section 401 and to impose federal oversight over the states’ Section 401 decisions. The states request that EPA withdraw or revise the guidance to rectify the deficiencies identified in the comment letter.

Attorney General Becerra leads the Attorneys General of Connecticut, Maryland, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington; and Pennsylvania Department of Environmental Protection in filing the comment letter.

A copy of the filed comment letter can be found here.

LOS ANGELES -- Attorney General Kamala D. Harris issued the following statement on today’s ruling by the Ninth Circuit upholding a key decision made by the Federal Energy Regulatory Commission (FERC) regarding California’s energy crisis:

“I am gratified that the Court upheld FERC's determination that large energy companies, such as Shell, manipulated California's energy markets during the 2000-2001 energy crisis, leading to blackouts and exorbitant prices for the customers of California's investor owned utilities.  The decision upholds the findings on which FERC has ordered the payment of more than $200 million in damages from sellers that have not settled.  My office will continue to pursue compensation from those who gamed the market and profited from the skyrocketing prices that resulted.”

More information is available here: https://oag.ca.gov/cfs/energy and here: https://oag.ca.gov/cfs/energy/money.

Civil Penalties and Significant Injunctive Terms Follow the $1.18 Billion Secured for California in Initial Landmark Settlement with Volkswagen

SAN FRANCISCO - Attorney General Kamala D. Harris today announced that, in addition to the historic $14.7 billion settlement with Volkswagen announced last week, the company will also pay California an additional $86 million in civil penalties as part of a second partial settlement over the company’s use of “defeat devices” to evade emissions testing in its diesel vehicles. 

The agreement, which is subject to court approval, represents the largest amount of money recovered by the state of California from an automaker and resolves certain aspects of the California Attorney General’s claims against Volkswagen under California’s Unfair Competition Law as well as the Dodd-Frank Consumer Financial Protection Act of 2010.  Volkswagen will also agree to significant injunctive terms to deter future misconduct, including a new requirement that Volkswagen contractors and employees report to the California Attorney General’s office any request for or use of “defeat devices.”  

Of the $86 million in penalties, the Attorney General will direct $10 million in grants to local government agencies or academic institutions to research and develop technology to detect “defeat devices” and better assess on-road emissions, as well as to monitor, model, and mitigate the environmental and public health impacts of vehicle emissions, especially on children and other vulnerable populations.

“We must conserve and protect our environment for future generations and deliver swift and certain consequences to those who break the law and pollute our air.  Volkswagen tricked consumers seeking to purchase an eco-friendly car by misleading the public about the level of harmful pollutants their so-called ‘clean diesel’ vehicles were emitting,” said Attorney General Harris.  “This additional settlement sends an unequivocal message to Volkswagen and any other automaker that California will aggressively enforce our robust consumer and environmental protection laws.” 

Today’s announcement follows last Tuesday’s joint announcement by California Attorney General Kamala Harris and California Air Resources Board Chair Mary Nichols that California, alongside the U.S. Environmental Protection Agency and U.S. Department of Justice, had negotiated a landmark $14.7 billion settlement with Volkswagen over the software it installed in its diesel cars to trick emissions testing while actually emitting up to 40 times the level of harmful nitrogen oxides allowed under state and federal law. 

As part of that $14.7 billion agreement, Volkswagen agreed to spend an estimated $10 billion to compensate consumers and buy back or modify hundreds of thousands of its polluting cars, pay $2.7 billion into a trust fund for environmental mitigation projects, and spend $2 billion over 10 years on zero-emission technology.  Of the $4.7 billion in mitigation funding and investments, $1.18 billion will come to California ($800 million in zero-emissions technology investments and $380 million for environmental mitigation projects in the state).

The partial settlement announced today relates to Volkswagen’s 2.0 and 3.0 liter vehicles that deployed “defeat devices” to deceive regulators and consumers about levels of harmful emissions.  An estimated 86,000 2.0 and 3.0 liter vehicles were sold or leased in California between 2009 and 2015.  Today’s settlement preserves California’s potential criminal claims and claims for additional civil penalties and injunctive relief under state environmental laws, as well as the Attorney General’s claims for consumer relief and environmental mitigation related to the 3.0 liter vehicles.

In addition to the $86 million in civil penalties, Volkswagen agrees to strict injunctive terms as part of the settlement, including:

• Prohibitions on false and deceptive advertising
• Affirmatively disclosing defeat devices in certification applications and other submissions to the California Air Resources Board (CARB)
• Notifying the California Attorney General’s office and CARB of whistleblower and other complaints
• Requiring Volkswagen contractors and employees who are designing engine control units or engine control software to report to the California Attorney General’s office and to CARB any request for or use of defeat devices, and to keep accurate records of software features and changes that could be used as defeat devices
• Provide the California Attorney General’s office with reports of any violations, along with periodic reports regarding its efforts to implement the injunction and effectiveness of those efforts

The consent decree was filed today in U.S. District Court, Northern District of California and is attached to the online version of this news release at www.oag.ca.gov/news.