Legislative Response to Brown A Win for Attorney General, Thelen Lawyer Writes

A California lawyer who has closely followed California's energy regulation, and once was part of it, has concluded that state lawmakers handed Attorney General Jerry Brown a victory last year when they passed a new law in reaction to his controversial greenhouse gas litigation.

The statute  was passed as SB 97 (see full text here). The legislation codifies Brown's argument that that increased emissions of the gases and their effects constitute an environmental impact that must be considered by agencies issuing permits that are subject to review under the California Environmental Quality Act. That's according to Thelen Reid Brown Raysman & Steiner attorney Peter V. Allen (pictured) in an article originally published in  Ecology Law Currents, vol. 35 (2008). The publication is produced at the University of California-Berkeley's law school Boalt Hall (see full article here).

The law was approved last year after Brown sparked controversy in the Legislature by weighing in on county land use and transportation plans and other proposals that warranted scrutiny under the state environmental law. Brown ultimately sued San Bernardino County and reached a settlement requiring the county to take account of greenhouse gases and come up with a plan to reduce them (see text of lawsuit here; text of settlement here; press statement here).

Republicans in the Legislature had held up the state budget and attempted to pass a law limiting Brown's power to bring such lawsuits in the future, a clash that ultimately produced SB 97. Critics viewed Brown's work as a premature effort to enforce the state's law limiting greenhouse emissions, AB 32. Brown, who has maintained the state needs to move forward quickly with efforts to reduce heat-trapping gases, argued that San Bernardino had not adequately analyzed the effects of development on global warming.  

In addition to constituting "a win for the attorney general's position," the bill also will make many CEQA reviews more complex and will require more costly mitigation measures for many projects, Allen wrote. But he noted it should also provide some potential opportunities, especially for renewable energy providers. 

'Values Clashes' Seen as Challenge to Renewables, Other Climate Efforts

Global warming is bad, and developing renewable energy to help solve the problem is good, right? While that might be a popular view, the reality is a bit more complicated, as experts in the field have begun noting with some frequency lately.

Talk of what UCLA School of Law Professor Ann Carlson (pictured) calls “localized environmental values clashes” over renewable projects was in the air at a recent conference at the University of California-Berkeley’s law school, Boalt Hall.

Speakers at the two-day event, “California and the Future of Environmental Law and Policy,” noted that, in particular, legal and policy fights over transmission lines pose a significant challenge for renewable development. Among them was Karen Douglas, who formerly spearheaded California climate change efforts for the  group Environmental Defense (now known as Environmental Defense Fund). She is now a member of the California Energy Commission which, among other duties, licenses large new thermal power plants in the state, as well as the transmission lines connecting them to the grid. Douglas crystallized the issue this way:

“It’s kind of a different challenge to do renewables because you’ve got to generate the power where the renewable resources are and then bring it where the people are. So that means often a lot of power lines. People don’t want that through their neighborhoods. It’s hard to site and hard to build and so on, so one issue is transmission.”

She noted that other questions arise when considering the placement of wind farms and solar power facilities, some in remote and environmentally sensitive areas, such as California’s desert lands:

“Surely there are good places to build these things and bad places to build these things. What’s the right process and what’s the right way to engage people who care about the desert and don’t just see it as deadland to put things on. None of us sees deserts that way any more.”

In her presentation to the conference, which was sponsored by the school’s California Center for Environmental Law and Policy, Carlson also highlighted transmission issues. She focused on the ambitious plans of the Los Angeles Department of Water and Power, the nation’s largest municipally owned utility, to aggressively increase its generation from renewable sources. Goals include boosting to 20 percent the proportion of the utility’s electricity coming from renewables by 2010 – more than doubling the current proportion -- and hitting 35 percent by 2025, she said. California has established its own renewable portfolio standards, which generally apply to private utilities, that are similar (see background here). 

Among the consequences of the Los Angeles utility's action, Carlson noted, was the need to build a lengthy transmission project from the proposed site of some of that new generation (see project description here). That is being opposed by a number of groups, including residents and local officials in areas where the lines will run who will not benefit directly from the power (see opposition group site here). Carlson said the utility also faces other pressures. Those include demands from its own unionized workers that the utility itself own much of the renewable generation. Additionally, the facilities must comply with an array of state and federal environmental laws, legal requirements that themselves provide ample opportunity for lawsuits filed by opponents. The challenges aren't unique to Los Angeles, she said: 

“So the sort of localized environmental clashes or values battles is a problem that is really international in scope and also is really long-term, as opposed to short-term. It raises real problems for not just again LADWP but for any utility that is seeking to shit its energy sources away from conventional sources to renewable sources.”

For another example of the kind of fights that can occur and their potential consequences, the Washington Post recently looked at opposition in the “green” state of Wisconsin over new wind farms planned for offshore waters in the Great Lakes (see story here).

Of course, that might not be the full extent of the societal conflicts that could occur as restrictions on greenhouse gases tighten up. In California and other states, there are movements already underway to reduce the amount of vehicle miles people travel (see Climate Law Update stories here and here). That's an issue that might produce some real backlash in a state that has never meaningfully connected land use and transportation policy, warned  William Fulton, a land-use expert who runs the Solimar Research Group. Fulton predicted that once people realize that reducing “VMT” means driving less, they could respond politically, even launching a new recall campgain similar to the 2003 recall of Gov. Gray Davis. That led to Gov. Arnold Schwarzenegger, the politician perhaps most closely identified with California’s climate change-fighting efforts, getting into office in the first place.

(Photo of Ann Carlson via UCLA School of Law)