Legislation

In response to a request from legislative leaders, Attorney General Edmund G Brown Jr. today concluded that the state Constitution allows the California Citizens Compensation Commission to reduce the salaries of legislators and other elected officials in the middle of their terms. Legislative leaders questioned the Commission's authority after it voted earlier this year to reduce the salaries of elected officials by 18 percent.

Brown pointed to the voters' 1990 approval of Proposition 112, which requires the Commission to 'adjust the annual salaries of state officers' each year, in confirming the Commission's authority to reduce salaries. According to Brown, Proposition 112 contradicts and supercedes a ballot measure adopted in 1972 that prohibited mid-term salary reductions.

Brown stated that 'any other interpretation would require assuming against all evidence that the voters in 1990 intended mid-term annual adjustments to only go up and never down, even in the face of a faltering economy and huge budget deficits.”

The full text of the letter follows:

Greg Schmidt
Chief Executive Officer
Senate Rules Committee

Jon Waldie
Chief Administrative Officer
Assembly Rules Committee

Re: Mid-term Reduction of Legislative Salaries

Gentlemen:

In response to your question as to whether the California Citizens Compensation Commission can reduce the salaries of Legislators during their terms of office, the short answer is yes it can. This is because in 1990 the voters approved Proposition 112, which requires the Commission to “adjust the annual salaries of state officers . . . [which] shall be effective on or after the first Monday of the next December.” This provision supersedes and contradicts a previously adopted proposition that prohibited mid-term salary reductions. Any other interpretation would require assuming against all evidence that the voters in 1990 intended mid-term annual adjustments to go only up but never down, even in the face of a failing economy or huge budget deficits.

Your question requires resolving a conflict between two competing constitutional provisions. The first, Article III, section 4(a), which was added to the Constitution in 1972, states that “salaries of state elected state officers may not be reduced during their term of office.” The second, Article III, section 8(g), which was added to the Constitution by Proposition 112 in 1990, created the Commission and requires it to “adjust” the salaries of state elected officers (including legislators) before the end of each fiscal year. Those adjustments are effective on and after the first Monday of the December following the adjustment.

These two provisions conflict because an adjustment can be either an increase or a decrease. While Section 4(a) states that salaries cannot be reduced during a term of office, Section 8(g) states that salary adjustments (up or down) shall be made, and shall and be effective, annually. Requiring an annual adjustment in salaries is inconsistent with prohibiting salary reductions.

The rules of constitutional interpretation require harmonization of conflicting provisions if possible. If provisions cannot be reconciled, however, the later-adopted provision prevails. Because I believe that the two conflicting provisions cannot be reconciled, the later-adopted provision calling for adjustments up or down must prevail.

Having said that, I acknowledge that there are those who disagree, and I am aware of three legal opinions (including an informal opinion from an attorney in my Opinions Unit) that come to a contrary conclusion. However, the fundamental objective of statutory interpretation is to ascertain and effectuate the intent of the enacting body, which in this case is the voters. I believe that a careful review of the text of Proposition 112 and the accompanying ballot pamphlet makes clear that the voters intended in 1990 to create a new system of setting legislative compensation to include an annual up or down adjustment of salaries and benefits.

I. BACKGROUND

A. How Salaries Were Set Before the Adoption of Proposition 112 in 1990.

Before 1990 the salaries of elected state officers were set by statute. Two constitutional provisions also addressed the issue of salaries.

Former Article IV, section 4, dealt exclusively with the compensation of legislators. It required that salary adjustments be adopted by a two-thirds vote, not exceed five percent annually, and not go into effect until the next legislative session. Section 4(a) stated then, as it does now, “[e]xcept as provided in subdivision (b), salaries of elected state officers may not be reduced during their term of office.”

B. The 1990 Adoption of Proposition 112 and the Creation of the Compensation Commission.

Proposition 112, a legislative constitutional amendment, was adopted at the June 1990 primary election by a margin of 62% - 38%. Proposition 112 completely revised the procedure for setting the salaries of certain elected state officers. It created an appointed Commission to set the salaries of all elected state officers other than judges. The Commission was charged with the responsibility to set salaries annually:

[A]t or before the end of each fiscal year, the commission shall, by a single resolution adopted by a majority of the membership of the commission, adjust the annual salary and the medical, dental, insurance, and other similar benefits of state officers. The annual salary and benefits specified in the resolution shall be effective on and after the first Monday of the next December.

(Section 8(g) [as adopted by Proposition 112].)

Although the text of Proposition 112 repealed former Art. IV, § 4 concerning the setting of legislative salaries, it did not repeal Section 4(a), which states that the salaries of elected state officers “may not be reduced during their term of office.” The 1990 ballot pamphlet materials concerning Proposition 112 made no reference to Section 4(a).

C. The 2009 Adoption of Proposition 1F Modifying the Compensation Commission’s Procedures.

At the May 2009 special election, Proposition 1F was approved by a 74% - 26% margin. Proposition 1F amended Section 8(g) to prevent the Compensation Commission from raising the salaries of elected state officials in years where the General Fund is expected to end the year in a deficit. Section 8(g) was rewritten to put the language concerning the adjustment of salaries (as opposed to benefits) in a separate paragraph.

The new language concerning salary adjustments is identical to the old: It requires the Compensation Commission to adjust salaries annually and states that the adjustments “shall be effective” the following December. However, unlike the 1990 ballot pamphlet accompanying Proposition 112, the Analysis by the Legislative Analyst accompanying Proposition 1F noted the conflicting language of Section 4(a). The Analysis stated that “Proposition 6 – approved by voters in November 1972 – prohibits the reduction of elected state officials’ salaries during their terms of office.”

II. ANALYSIS

The rules of statutory and constitutional interpretation, while difficult to apply, are easy to state. “We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.” “In the case of a constitutional provision adopted by the voters, their intent governs.” “The Court turns first to the words themselves for the answer[,]” and if the language is “clear and unambiguous” there is no need for construction or for resort to indicia of voters’ intent. “Words used in a constitutional provision should be given the meaning they bear in ordinary use.”

The language of Section 8(g), as adopted by Proposition 112 (1990) and amended by Proposition 1F (2009), makes clear that increases and decreases in salaries were meant to go into effect annually:

Thereafter, at or before the end of each fiscal year, the commission shall adjust the annual salary of state officers by a resolution adopted by a majority of the membership of the commission. The annual salary specified in the resolution shall be effective on and after the first Monday of the next December[.]

(Emphasis added.) When a salary is adjusted, it can go either up or down. (The American Heritage Dictionary defines “adjust” as “1. To change so as to match or fit; cause to correspond[.]”) An adjustment becomes effective when it becomes operative. (The American Heritage Dictionary defines “effective” as “3. Operative; in effect: The law is effective immediately.” [Emphasis in original].) Thus the constitutional dictate is that the Compensation Commission pass a salary resolution before the end of each fiscal year, and that the resolution become effective the following December.

While the language of Section 8(g) is clear, the inquiry does not end there. Section 8(g) must be read in the context of the entire Constitution, and particularly Section 4(a), which states that the salaries of elected state officers may not be reduced during their term of office. Proposition 112 – which added Section 8(g) to the Constitution – could have amended Section 4(a), but it did not. Section 8(g)’s silence regarding its effect on the pre-existing section 4(a) creates a latent ambiguity because “the law shuns repeals by implication[.]” Statutes “must be read together and so construed as to give effect, when possible, to all the provisions thereof.” However, where two enactments present an unavoidable conflict, the most recent expression of legislative will prevails. A later-adopted provision works an implied repeal of an earlier provision where “two acts are so inconsistent that there is no possibility of concurrent operation, or where the later provision gives undebatable evidence of an intent to supersede the earlier[.]”

Because Section 8(g) is ambiguous in context, it is appropriate to look to the ballot pamphlet for evidence of voters’ intent in adopting Proposition 112. The ballot pamphlet supports the conclusion that Section 8(g) was intended to completely revise the existing law concerning the setting of salaries of elected officials. The Title and Summary of Proposition 112 informed voters that the newly-created Compensation Commission would establish salaries annually and that previous law would be repealed:

Repeals current provisions setting salaries, benefits of legislators, elected statewide officials; establishes seven-member Commission, appointed by Governor, to annually establish salaries, benefits.

The Analysis of the Legislative Analyst stated:

Creates the California Citizens Compensation Commission with the exclusive authority to set the annual salaries, and the medical, dental, insurance, and other similar benefits of Members of the Legislature and [other elected state officials].

* * * * *

The commission would have until December 3, 1990, to set the salaries and benefits which would be effective for one year beginning on that date.

In the following years, the commission could adjust annually the salaries and benefits for elected state officers.

The Rebuttal to Argument Against Proposition 112 added that:

The Commission is NOT a guaranteed pay raise. The opponents didn't tell you that the Commission has the power to lower salaries.

(Emphasis in original.) To summarize, voters were told that current law concerning the setting of salaries would be repealed, that the Commission created by Proposition 112 would have exclusive authority to set salaries, that the Commission’s initial determination would be effective for one year beginning December 3, 1990, that thereafter the Commission could adjust salaries annually, and that the Commission could raise or lower salaries.

Based on the language of Proposition 112 and the accompanying ballot pamphlet text, I am convinced that voters cannot be presumed to have created a one-way street up for salaries. Voters must have believed that the Commission would have the exclusive power to adjust salaries up or down, that salaries would be adjusted annually, and that those adjustments would be effective annually. As a result, I see no way that section 8(g) can be harmonized with section 4(a). Accordingly, section 8(g) must control because it is more recent.

Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245 is probably the closest case on point. Kennedy Wholesale concerned the interpretation of Proposition 13, which amended the State Constitution to state that “any changes in State taxes enacted for the purpose of increasing revenues . . . must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature[.]” The issue was whether this language meant that only the Legislature could enact new taxes, so as to work an implied repeal of the voters’ power to raise taxes by statutory initiative. The Supreme Court concluded, for two reasons, that there was no implied repeal: First, a court must resolve any doubts in favor of the “precious right” of initiative. Second, “Nothing in the official ballot pamphlet supports the inference that voters intended to limit their power to raise taxes[.]” In the context of the present dispute over legislative salaries, both of these reasons support the conclusion that Section 8(g) does impliedly repeal Section 4(a). Section 8(g) does not restrict the right of initiative. And the ballot pamphlet clearly supports the conclusion that Section 8(g) was intended to supplant Section 4(a).

One other statutory-interpretation issue merits mention. Section 8(g) was amended by Proposition 1F (May 2009). The accompanying ballot pamphlet included a statement from the Legislative Analyst that “Proposition 6 – approved by voters in November 1972 – prohibits the reduction of elected state officials’ salaries during their terms of office.” Thus, voters in the 2009 May special election were informed of the conflict between Section 8(g) and Section 4(a). This does not change my conclusion that the voters in 1990 intended to permit the Commission to reduce Legislators’ salaries during legislative terms because Proposition 1F did not in any way purport to amend the relevant text of section 8(g) instructing the Commission to “adjust” salaries annually and makes those adjustments “effective on or after the first Monday of the next December[.]”

III. CONCLUSION

In my opinion, there is an unavoidable conflict between Section 8(g) (1990) and Section 4(a) (1972). Because Section 8(g) was adopted most recently, I believe that it controls and gives the Commission authority to reduce salaries mid-term.

Sacramento – Attorney General Edmund G. Brown Jr. today issued a consumer alert warning California homeowners to avoid individuals and businesses that charge up up-front fees for foreclosure relief services in light of a just-enacted state law that makes this “abusive practice” subject to prosecution.

“Over the past two years, unscrupulous attorneys and real estate brokers have abused their trusted roles and exploited desperate homeowners seeking to avoid foreclosure,” Brown said. “The loophole that allowed this abusive practice to continue has now been closed, and homeowners should avoid any person charging up-front fees for foreclosure relief services.”

Earlier this week, Governor Schwarzenegger signed into law Senate Bill 94, which immediately makes it unlawful for any licensed attorney or real estate agent “who negotiates, attempts to negotiate, arranges, attempts to arrange, or otherwise offers to perform a mortgage loan modification or other form of mortgage loan forbearance for a fee or other compensation paid by the borrower…to claim, demand, charge, collect, or receive any compensation until after the [attorney or agent] has fully performed each and every service the licensee contracted to perform or represented that he, she, or it would perform.”

Until now, licensed attorneys and real estate brokers could charge advance fees under certain limited circumstances. Foreclosure scam artists often sought to exploit this exception. The new law closes this loophole.

Brown has made it a top priority to protect homeowners and combat loan modification fraud in California. In August, threatening possible criminal and civil prosecution, he ordered 386 mortgage foreclosure consultants to register with his office and post $100,000 bond. Brown also ordered more than two dozen foreclosure assistance companies to substantiate suspect claims made on the internet and in direct mail advertising.

This action followed a nationwide sweep in July that led to lawsuits against 21 individuals and 14 companies who ripped off thousands of homeowners seeking mortgage relief. In total, Brown has sought court orders to shut down more than 30 companies and has brought criminal charges and obtained lengthy prison sentences for dozens of deceptive loan modification consultants.

Loan modification consultants continue to exploit homeowners desperate for relief. This year, Brown’s office has received more than 2,500 complaints against loan modification consultants and their businesses. This is a dramatic jump from 2008, when less than 200 complaints were filed.

As part of today’s consumer alert, Brown offered the following tips to homeowners:

Don't pay up-front fees. Foreclosure consultants are prohibited by law from collecting money before services are performed.

Don't ignore letters from your lender or loan servicer. Responding to those letters is your best bet for saving your house.

Don't transfer title or sell your house to a “foreclosure rescuer.” Beware! This is a scam to convince homeowners they can stay in the home as renters and buy their home back later. It might also be part of a fraudulent bankruptcy filing. Either way, a scammer can then evict the victim and take the home.

Don't pay your mortgage payments to anyone other than your lender or loan servicer. Mortgage consultants often keep the money for themselves.

Never sign any documents without reading them first. Many homeowners think that they are signing documents for a loan modification or for a new loan to pay off the mortgage they are behind on. Later, they discover that they actually transferred ownership of their home to someone who is now trying to evict them.

If someone demands an upfront fee for foreclosure assistance services, you can report them to the Attorney General’s office at 1-800-952-5225, or file a complaint online at: www.ag.ca.gov/consumers/general.php

For more information on the Brown’s action against loan modification fraud visit: http://ag.ca.gov/loanmod.

The text of Senate Bill 94 can be found at: http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0051-0100/sb_94_bill_200...

'This case is a critical milestone, allowing global warming cases to be decided by the courts, just as they decide complex water pollution, air pollution, and toxic dumping cases,' Attorney General Jerry Brown said. “It’s highly significant that the federal court has affirmed the right of states to challenge the greenhouse gas emissions generated by coal-fired power plants. The time has now come for Congress to enact long overdue climate protection legislation.”

LOS ANGELES -- Attorney General Edmund G. Brown Jr. and the California Department of Food and Agriculture last week forged an agreement requiring Bombino Express Worldwide to immediately stop the “illegal importation” of produce that has not been treated to eradicate the Oriental Fruit Fly or other crop-damaging pests.

In July 2008, Bombino Express Worldwide imported 34 packages of Indian mangoes and yams that were labeled “ladies’ apparel” through Los Angeles International Airport. Airport dogs discovered the packages and prevented the produce from entering the food supply.

“Bombino Express Worldwide illegally imported mangoes and yams without treating them for dangerous pests such as the Oriental Fruit Fly,” Brown said. “It’s critical that imported produce be properly inspected to avoid devastating and costly pest infestations.”

State and Federal laws prohibit the importation of untreated mangoes from India because they can be infested with crop-damaging pests, like the Oriental Fruit Fly, which reproduces rapidly due to lack of natural biological constraints.

An Oriental Fruit Fly infestation could cost the state up to $176 million in crop losses, eradication efforts and quarantine requirements.

Brown’s Office and the California Department of Food and Agriculture filed a lawsuit against Bombino Express Worldwide and its CEO Mohmed Yasin Latiwala of New Jersey in July 2008, contending that the company had violated:

• Food and Agriculture Code section 5306, which prohibits importation of plant material in violation of a plant quarantine;
• Food and Agriculture Code section 6321, which prohibits the importation of any fruit/plant/vegetable which may become a host to any species of the fruit fly family;
• Food and Agriculture Code section 6421, which prohibits shipments of plants brought into the state without proper markings and disclosure; and
• Food and Agriculture Code section 6461, prohibiting importation of plant material infested with agricultural pests subject to quarantine.

Bombino Express Worldwide is headquartered in Mumbai, India. The settlement prevents Bombino Express Worldwide from importing produce that have not been properly inspected for foreign pests. The company will also pay $40,000 in civil penalties. If the company violates the agreement in the future, it will be forced to pay $1.6 million in additional penalties.

“The inspectors who prevented these shipments from passing into California deserve the appreciation of farmers throughout California,” said CDFA Secretary A.G. Kawamura. “Invasive pests are a primary threat to our crops, and keeping them out of California is vital to the security of our food supply and the stability of our agricultural economy.”

A copy of the settlement agreement is attached.

LOS ANGELES -- Attorney General Edmund G. Brown Jr. and the California Department of Food and Agriculture last week forged an agreement requiring Bombino Express Worldwide to immediately stop the “illegal importation” of produce that has not been treated to eradicate the Oriental Fruit Fly or other crop-damaging pests.

In July 2008, Bombino Express Worldwide imported 34 packages of Indian mangoes and yams that were labeled “ladies’ apparel” through Los Angeles International Airport. Airport dogs discovered the packages and prevented the produce from entering the food supply.

“Bombino Express Worldwide illegally imported mangoes and yams, without treating them for dangerous pests such as the Oriental Fruit Fly,” Brown said. “It’s critical that imported produce be properly inspected to avoid devastating and costly pest infestations.”

State and Federal laws prohibit the importation of untreated mangoes from India because they can be infested with crop-damaging pests, like the Oriental Fruit Fly, which reproduces rapidly due to lack of natural biological constraints.

An Oriental Fruit Fly infestation could cost the state up to $176 million in crop losses, eradication efforts and quarantine requirements.

Brown’s Office and the California Department of Food and Agriculture filed a lawsuit against Bombino Express Worldwide and its CEO Mohmed Yasin Latiwala of New Jersey in July 2008, contending that the company had violated:

• Food and Agriculture Code section 5306 which prohibits importation of plant material in violation of a plant quarantine;
• Food and Agriculture Code section 6321 which prohibits the importation of any fruit/plant/vegetable which may become a host to any species of the fruit fly family;
• Food and Agriculture Code section 6421 which prohibits shipments of plants brought in to the state without proper markings and disclosure; and
• Food and Agriculture Code section 6461 prohibiting importation of plant material infested with agricultural pests subject to quarantine.

Bombino Express Worldwide is headquartered in Mumbai, India. The settlement prevents Bombino Express Worldwide from importing produce that have not been properly inspected for foreign pests. The company will also pay $40,000 in civil penalties. If the company violates the agreement in the future, it will be forced to pay $1.6 million in additional penalties.

“The inspectors who prevented these shipments from passing into California deserve the appreciation of farmers throughout California,” said CDFA Secretary A.G. Kawamura. “Invasive pests are a primary threat to our crops, and keeping them out of California is vital to the security of our food supply and the stability of our agricultural economy.”

A copy of the settlement agreement is attached.

Washington, DC – Attorney General Edmund G. Brown Jr. today signed on to an “historic agreement” between the Obama Administration, the State of California and automakers that will lead to the nationwide adoption of California’s stringent vehicle emissions standards.

Under the agreement, the federal government will require a 30 percent reduction in greenhouse gas emissions from motor vehicles. This will mean that U.S. motor vehicles will be required to achieve a fleetwide standard of approximately 35.5 miles per gallon by 2016, four years earlier than federal law requires.

This is the first greenhouse gas emission limit by the federal government, and it is the direct result of California's action to control tailpipe emissions.

“This is an historic agreement that will lead to a 30 percent reduction in motor vehicle greenhouse gas emissions nationwide,” Brown said. “This agreement brings an end to a five-year legal battle; it means that automakers finally recognize that their future depends on making cleaner and more efficient vehicles.”

For over 40 years, California has had authority under the Clean Air Act to set stricter standards than the federal government for automobile emissions. Other states have been permitted to adopt those tougher standards for the past 30 years.

In 2005, California applied its authority to greenhouse gas emissions, adopting standards that require a 30 percent reduction in global warming emissions from vehicles by 2016. Fourteen states adopted identical regulations.

The automobile industry attacked California’s standards at every turn, challenging them in both state and federal court.

Brown has staunchly and successfully defended California’s law against these challenges, provided assistance to Vermont, Rhode Island, and New Mexico whose laws were also challenged, and sued Bush Administration’s EPA for denying California’s waiver.

Brown expects EPA will act quickly to grant California’s waiver. Once the waiver is granted, the state will consider compliance with a substantially similar federal standard to be compliance with California’s standard.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California.

A copy of Brown's letter outlining his understanding of the agreement it attached.

Attorney General Edmund G. Brown has responded to the California Supreme Court's query regarding the constitutionality of Proposition 209 in the Coral Construction v. City of San Francisco Case.

Attached is a copy of the letter brief.

SACRAMENTO – Attorney General Edmund G. Brown Jr. today commended the Environmental Protection Agency for taking the federal government’s “first concrete step toward curbing global warming” by issuing a proposed determination that greenhouse gases endanger public health or welfare.

“After years of inexcusable neglect under the Bush Administration, the EPA has taken the first concrete step toward curbing global warming by making a preliminary determination that greenhouse gases endanger public health or welfare.” Attorney General Brown said. “This proposed endangerment determination opens the door to the first serious national effort to reduce greenhouse gases.”

This proposed determination stems from the Supreme Court’s decision in Massachusetts v. EPA -- a case in which California was a lead plaintiff -- which required EPA to determine whether the greenhouse gas emissions that lead to global warming “may reasonably be anticipated to endanger public health or welfare.”
The Bush Administration refused to comply with the court’s order to make such a determination.

Brown has made combating global warming a major priority of the Attorney General’s office. He has:
• Requested the EPA requesting to curb greenhouse gases from ocean-going vessels, aircraft, and non-road vehicles;

• Urged the EPA to regulate emissions from power plants and other large polluting sources;

• Sued the Department of Energy for failing to require updated efficiency standards for appliances and other equipment;

• Sued the Fish and Wildlife Service for allowing federal projects to be approved without considering the effects of greenhouse gas emissions on endangered species; and

• Defended California's new motor vehicle greenhouse gas regulations from challenge by the automobile industry.

In California, Attorney General Brown has reached path-breaking settlements with San Bernardino County and the City of Stockton requiring them to adopt Climate Action Plans for reducing greenhouse gas emissions and has filed over 40 comments letters on local land-use projects under the California Environmental Quality Act.

More information on Attorney General Brown’s efforts to combat global warming can be found at http://ag.ca.gov/globalwarming/.

SACRAMENTO – Attorney General Edmund G. Brown Jr. and 14 other states yesterday urged the Obama Administration to overturn the Bush EPA’s “shameful denial” of California’s request to enforce its automobile greenhouse gas emissions law.

“The Bush Administration’s shameful denial of California’s waiver fundamentally ignored the serious impacts that global warming is having on our state,” Attorney General Brown said. “The Obama Administration should overturn Bush’s wrongheaded decision and allow California to enforce its greenhouse gas law.”
In a comment letter to EPA Administrator Lisa Jackson, Attorney General Brown, joined by 14 other states, wrote that under the Clean Air Act, California is entitled to be granted authority to enforce its law and EPA should grant the waiver immediately.

In 2002, California enacted legislation requiring a 30 % reduction in automobile greenhouse gas emissions by 2016. But before the State can enforce its law, EPA must grant a Clean Air Act wavier.

The Bush EPA denied California’s request for such a waiver in 2007, arguing that California did not need the regulation to address 'compelling and extraordinary conditions.' This denial reversed decades of agency practice and ignored the dangerous consequences of global warming to the State of California.

Global warming threatens California's Sierra mountain snow pack, which provides the state with one-third of its drinking water. California also has approximately 1,000 miles of coastline and levees that are threatened by rising sea levels.

In the 40-year history of the Act, EPA has granted approximately 50 waivers to California for innovations like catalytic converters, exhaust emission standards, and leaded gasoline regulations. Until the Bush Administration’s decision, a waiver request had never been denied.

On February 6, 2009, EPA Administrator Lisa Jackson announced that the Obama EPA would review the Bush EPA’s denial of California's waiver request.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California.

Brown’s letter was also signed by the New York City Corporation Counsel and 14 other states, including Arizona, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and the Pennsylvania Department of Environmental Protection.

Attorney General Brown's letter to EPA Administrator Lisa Jackson is attached.

FOR IMMEDIATE RELEASE
March 5, 2009
Contact: Christine Gasparac (916) 324-5500

Brown Urges Obama Administration to Allow California to Enforce Tough Greenhouse Gas Emissions Law

SACRAMENTO –Attorney General Edmund G. Brown Jr. today urged the Obama Administration to overturn the Bush EPA’s “illegal and shortsighted” denial of California’s request to carry out its state law requiring a 30% reduction in tailpipe greenhouse gas emissions.

“The Clean Air Act gives California the right to pass tough laws to fight pollution,” Attorney General Brown said. “The Bush EPA adopted an illegal and shortsighted policy by blocking California’s tough emissions standard. California’s law will drive technological innovation and cut greenhouse gases. I urge the Obama Administration to grant our request.”

In 2002, California passed AB 1493, which requires a 30 % reduction in tailpipe greenhouse gas emissions by 2016, starting with model year 2009.

EPA must grant California’s waiver request before the state can enforce its tough emissions standards. The Bush administration had been ducking California’s request since 2005. In 2007, the Bush Administration denied California’s request.

On February 6, 2009, EPA Administrator Lisa Jackson announced the Agency’s decision to review its denial of California’s request to implement its greenhouse gas emission law.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of all human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California. If California’s landmark global warming law—and the corresponding 30% improvement in emissions standards—were adopted nationally, the United States could cut annual oil imports by $100 billion dollars at $50 per barrel.

Attorney General Brown’s letter to EPA Administrator Lisa Jackson is attached.

March 6, 2009

Via E-Mail and First Class Mail

The Honorable Lisa P. Jackson
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: Request for Comments on California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Regulations; Reconsideration of Previous Denial of a
Waiver of Preemption; 74 Fed. Reg. 7040 (Feb. 12, 2009); Docket ID No. EPA-HQ-OAR-2006-0173
Dear Administrator Jackson:

These comments are submitted in support of California’s waiver application. I strongly support EPA’s decision to reconsider its decision denying the waiver. The denial was in error, on both legal and factual grounds. EPA’s willingness to review that decision represents an important step after years of Bush Administration resistance to environmental protection. I intend to submit more detailed comments addressing both the factual errors and legal defects in EPA’s waiver denial decision. Today, however, I make two points: First, EPA’s decision to reconsider its waiver denial is proper. Second, given the urgency of dealing with global warming, EPA should grant California’s waiver as soon as possible.

EPA’s Decision to Reconsider the Waiver Denial is Appropriate and Proper.

EPA’s decision to reconsider its denial of California’s waiver request is both sound and legally correct. See, e.g., Sierra Club v. Vanantwerp, 560 F. Supp.2d 21 (D. D.C. 2008). There are substantial defects in EPA’s waiver denial decision that require correction, and it makes sense for EPA, the expert administrative agency, to cure its own mistakes.

In this denial, EPA departed from long standing past practice and considered whether California’s GHG emissions standard was needed to meet compelling and extraordinary conditions related to a specific pollutant – GHG emissions. Until this decision, EPA had looked at California’s emissions program in its totality, as the Clean Air Act requires. 42 U.S.C. § 7543. California’s separate emissions program has been approved because of the state’s climate, geography, extraordinarily severe air quality problems, and the large number and concentration of motor vehicles contributing to these problems. The Administrator also determined that climate change impacts in California were not sufficiently different from the nation as a whole and, therefore, did not support adoption of state standards regulating motor vehicle greenhouse gas emissions. This conclusion ignores that California continues to have compelling and extraordinary conditions justifying its own mobile source program, and that the impacts from climate change will be particularly severe in the state, given California’s extensive coastline, significant dependence on snow pack for water supply, vulnerability to floods and wildfires, severe ozone problem, and other impacts. These fundamental errors, among others, undermine the legitimacy of the waiver denial because they misconstrue the Clean Air Act and depart from decades of prior, sound agency practice.

In the landmark case Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Bush Administration fought to avoid its responsibility to deal with the threat of global warming. It took the case all the way to the U.S. Supreme Court, which rejected its arguments and ruled that global warming emissions are pollutants under the Clean Air Act. Even after the Court’s decision, EPA delayed taking any action on greenhouse gases for close to two years. EPA’s decision denying California’s waiver was another attempt to avoid the agency’s obligation to administer the Clean Air Act, as Congress wrote it. Now that EPA is reconsidering that decision, California looks forward to working with EPA so that these important standards can, finally, become effective.

EPA Should Grant the Waiver as Soon as Possible.

Global warming is the arguably most urgent environmental issue of our time. Our way of life and perhaps even our survival depend on our response to this problem. The regulations before you are a first, bold step toward dealing with global warming. They are ready to be enforced. Without Congress’ foresight in allowing California its important leadership role in setting automobile emissions standards, we would not have these ready-to-implement regulations today. All we need is a waiver from EPA. That waiver is long overdue. We have been waiting since 2005 for it.

Fourteen states plus the District of Columbia have adopted California’s greenhouse gas emissions regulations, with another four states in the process. The 14 states represent at least 37 percent of the nation’s vehicles and the four states in the process will raise the level to approximately 47 percent. There are several more states debating whether to adopt the program and, if they move forward, will represent over half the nation. We are optimistic that EPA will, upon reconsideration, grant California’s waiver request, thereby allowing California’s standards to become effective.

EPA therefore should waste no time in granting California’s waiver application as soon as possible. I am confident that upon reconsideration, the agency will determine that the request is consistent with the Clean Air Act and must be granted.
Sincerely,

EDMUND G. BROWN JR.
Attorney General

cc: Dickinson.David@EPA.gov