The Future of Environmental Law in California

California is preparing to battle the Trump Administration’s efforts to roll back on climate change regulation. Considering that state and national regulations are thoroughly intertwined, what does this mean for the future of environmental law in California?

Colleges of Law Public Forum Event

On May 16, the Colleges of Law (COL) will host a public forum where we will discuss the “Future of Environmental Law in California.” Two speakers are lined up for the event.

Linda Krop, a COL alumna and Chief Counsel for the Environmental Defense Center, will speak on California’s efforts to limit offshore drilling. While Aeron Arlin Genet, the Director of the Santa Barbara Air Pollution Control District, will discuss the state’s push to improve air quality.

Before the event, I wanted to provide a brief primer that will give everyone some context on California’s climate efforts and how they may be affected by the President’s actions.

California and The Trump Administration

Currently, California has some of the strongest environmental policies in the country, including an aggressive plan to combat climate change that requires the state to reduce greenhouse gas emissions significantly by 2030.

In its first 100 days, the Trump Administration has taken steps that could impede California’s environmental agenda. Rolling back many of President Obama’s policies on climate change, President Trump has signed several executive orders focused on “reducing unnecessary burdens on the American workers.”

The orders—which include rolling back the Clean Power Plan and allowing the Dakota Access and Keystone XL pipelines to move forward among others—are framed as placing jobs and economic growth at the top of the administration’s agenda. Several of these orders could have a direct impact on California’s environmental efforts.

Just like every other state, California relies on an overlapping network of state and federal rules to meet its goals. As a result, any changes at the federal level could adversely affect the state’s efforts. Anticipating a rollback of federal environmental regulations, the California Senate has already introduced the “Preserve California” legislative package to protect the state’s environmental progress.

But the state cannot insulate itself entirely from all federal action—raising the specter of legal battles that implicate thorny questions of federalism, states’ rights, and the supremacy of federal law.

Air Quality and the Clean Air Act

Every year, the American Lung Association releases a list of “Top 10 U.S. Cities Most Polluted by Short-Term Particle Pollution.” In 2016, six of the ten cities were in California. With states that are regularly cited as some of the most polluted by ozone or particulate matter, California’s pollution is primarily caused by emissions from vehicles and industrial sources—especially in Southern California.

Nonetheless, California has seen a marked improvement in air quality in the last two decades. For example, a recent USC study found that Southern California children have significantly fewer respiratory symptoms today than 20 years ago. The study found that the reduction in symptoms was the result of improved ambient air quality. The success in improving air quality can be traced in large part to its stringent motor vehicle emission standards.

But to impose these standards, California must seek a waiver of the federal Clean Air Act (CAA) standards because the state’s vehicle pollution regulations are more rigorous. Without a waiver, California would be unable to enforce its emission standards. Up to this point, the Environmental Protection Agency (EPA) has granted all of the state’s waiver requests except one, although that decision was later reversed.

As Goes California, so Goes the Rest of the Nation

California’s emission standards are not just a local matter.

California has the largest auto market of any state. Further, the federal Clean Air Act allows other states to adopt the same emission standards for which California has been granted a waiver. Currently, more than a dozen states—representing 40 percent of the automobile market—have adopted California’s emission standards.

This has resulted in a domino effect that has directly affected the entire auto industry.
If they wish to sell their vehicles in California or any of the other states that has adopted California’s standards, auto manufacturers now have to adhere to these emission standards. Since it is impossible for an automobile manufacture to ignore 40 percent of the market and remain competitive, this effectively means that California is setting admission standards for the entire industry.

Future Waivers are in Question

At his nomination hearing, Scott Pruitt, the Administrator of the EPA, would not commit to additional waivers. When pressed about whether he supported the waivers, he stated they would be “evaluated” and he would not “prejudge the outcome.” But even if Pruitt was inclined to grant future waivers, a lawsuit pending before the Ninth Circuit challenges the EPA’s waiver rule.

The plaintiffs in Dalton Trucking, Inc. v. EPA are asking the court to vacate a California rule related to diesel trucks, but their argument questions the EPA’s approach to all of California’s waiver applications. The Obama Administration actively defended the rule and the EPA’s grants of waivers. It’s unclear if the current administration will adopt the same stance.

That being said, most experts agree that it will be hard for the EPA to argue against a rule it has had in place for more than 40 years. The Ninth Circuit will hear oral arguments this month.

Offshore Oil Drilling

In 1896, California became the site of the first offshore drilling in the United States with the Summerland oilfield off the coast of Santa Barbara. Eighty years later, the region experienced the worst oil spill in California history when more than 4 million gallons poured into the ocean.

The spill affected the Channel and coastline, killing sea birds, marine animals, and halting commercial fishing in the area. It also sparked the modern environmental movement and was a leading factor in the establishment of Earth Day.

Since the spill, California has aggressively guarded its coastline. But California controls just three miles of water off the coast; beyond that point the waters are controlled by the federal government. California passed the Coastal Sanctuary Act in 1994, banning new leasing in state waters. However, state officials have been unsuccessful in their attempts to obtain a permanent ban on federal offshore leasing—leaving the possibility that the federal government could authorize an expansion of drilling in federal waters.

California Fights a New Challenge

In April, President Trump signed an executive order that aims to expand offshore drilling in the Arctic and Atlantic Oceans—as well as assess whether energy exploration can take place in marine sanctuaries in the Pacific and Atlantic. The “America-First Offshore Energy Strategy” will make millions of acres of federal waters eligible for oil and gas leasing—including perhaps offshore California.

Although the possibility of new drilling is years away, California lawmakers were quick to react to the executive order. The California Lands Commission, which manages or has oversight over all submerged lands along the California coastline, issued a statement declaring that it was “unequivocally resolved to create an environmental rampart along California’s coast.” Governor Jerry Brown, joined by the governors of Oregon and Washington, called the executive order “short-sighted.”

Senator Hannah-Beth Jackson, who represents Santa Barbara, introduced legislation to block any new offshore drilling operations from leasing space or building additional infrastructure in state-controlled waters.

In addition, the California Senate passed a resolution condemning these presidential orders.

And the Fight Continues

Discussions about the environment are usually as ardent as they are complex. As we attempt to find the right balance between economic growth and public health, we must thoroughly understand the issues.

Can the goal of economic growth and the goal of protecting the environment coexist? At the Colleges of Law, we are fueled by our passions. But it will take more than passion to answer this question and to find workable solutions that allow both goals to be met.

Stop by for our public forum on May 16, and help us explore how the law can be used to combat this emerging threat.