Legislative Counsel's Opinion Prompts Changes to SB 32

The Global Warming Solutions Act of 2006, otherwise known as Assembly Bill 32 (AB 32), is the California State Law that establishes statewide greenhouse gas (GHG) emissions reduction targets through 2020. This bill requires the California Air Resources Board (CARB) to implement the regulations and incentives necessary to reduce California’s GHG emissions to 1990 levels by 2020.

In early 2015, the Governor’s Office announced that California was on track to meet or even exceed the emissions targets put into effect by AB 32. In an effort to extend the state’s GHG reduction goals, the Governor issued Executive Order B-30-15, which established a new GHG reduction target of 40% below 1990 levels by 2030. The Order also directed all state agencies to implement measures to achieve the new GHG reduction targets and ordered CARB to update its Scoping Plan to reflect the new target.

In response to questions from State Senator Jean Fuller related to the Executive Order, the California Legislative Counsel issued an opinion addressing the enforceability of the Governor’s actions. Specifically, the Senator asked three questions: first, does AB 32 provide Governor Brown with the authority to implement GHG goals that both exceed those authorized by the State Legislature and lengthen the timeframe of application; second, does AB 32 allow the Governor or CARB to carry out cap-and-trade beyond 2020; and third, may CARB increase fees in order to achieve a GHG emissions reduction target below the 1990 level and for a period after 2020. The Legislative Counsel answered all three questions in the negative, citing a lack of Executive branch Constitutional authority as well as a lack of enabling language in AB 32. This opinion, while nonbinding, calls into question the Governor’s authority to implement climate change targets by executive order.

In what appears to be a reaction to the Legislative Counsel’s opinion, Senate Bill 32 (SB 32), a climate change bill originally introduced in December of 2014, has been amended in an effort to provide the Governor with the authority he needs to enforce his executive order. The bill now contains one principal provision: a new statewide GHG emissions reduction target of 40% below the 1990 levels by 2030 – the exact same target established by Executive Order B-30-15.

We will continue to monitor and provide regular updates on the bill and the executive order, as well as any additional documents regarding this developing situation.

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David Temblador is a land use expert with extensive experience counseling clients in complex entitlement acquisition, state and federal environmental permitting and environmental litigation. Although David’s practice touches on all aspects of p… Read More