It may or may not be legal
Lobbyist Don Gilbert, representing Bay Area sewage districts, requested $20 million from an Assembly budget subcommittee to fund “poop to power” projects, with a straight face, mostly.
The investment, he told the panel, would cut the cost of technology to generate electricity from human waste, thereby solving “an issue we all contribute to, most days.”
Next, lobbyist Gene Erbin stepped to the microphone, seeking $100 million on behalf of his client, Waste Management, “bizarrely and surrealistically,” he said.
The money would help the garbage company comply with a proposed California Air Resources Board regulation, one that seeks to eliminate organic waste from landfills by 2025. Erbin doubts the goal is attainable, and questions whether the board can legally impose the regulation.
“So I have to ask for the money, believing at the same time they don’t have the authority to compel us to comply with the regulations that they’re going to adopt,” Erbin said.
If other lobbyists harbored such compunctions, they weren’t letting on. For about two hours one morning last week, lobbyists representing glass makers, bicyclists, forest land owners, dairies, bio-digesters, PG&E, car makers, bus makers, bird watchers, recyclers and many more earnestly and sincerely asked for money.
They wanted $40 million to replace wood stoves, $20 million to make new glass from old glass, $140 million to improve forest health, $50 million to plant trees, $100 million for active transportation, also known as walking and biking, and $500 million for low-carbon modes of transportation, also known as trains and buses, or maybe it was $650 million.
Emissions would be cut. Jobs would be created. Children would ride bikes to school, rather than nagging parents for rides. Lungs, hearts and other body parts would become healthier. It all would be green.
It was, in other words, another day in which legislators and lobbyists were porking out $2 billion-plus produced by California’s cap-and-trade program. The Air Resources Board created cap-and-trade as part of its noble effort to implement the landmark Assembly Bill 32 of 2006 by cutting greenhouse gas emissions to 1990 levels by 2020.
On Friday, Gov. Jerry Brown, a champion of the air board’s effort, was at the United Nations in New York extolling the Paris Accords. In Sacramento, there were inconvenient developments. Righteous though California’s fight against climate change is, nagging questions persist.
The legislative counsel concluded last week that Brown overstepped his authority last year when he issued an executive order requiring the air board to reduce emissions beyond AB 32’s mandate. The legislative analyst said in a recent report that “we are not aware of any statutory direction” for the air board to develop more stringent greenhouse gas regulations beyond 2020, the year AB 32 expires.
More ominously, the 3rd District Court of Appeal in Sacramento sent pointed questions to lawyers arguing over the legality of the cap-and-trade program, specifically whether the revenue generated is a tax by another name. If it is a tax, the Legislature should have approved AB 32 by a two-thirds vote. A simple majority passed it.
In its lawsuit, the California Chamber of Commerce contends that any program that produces $2 billion a year is a tax. And, by the way, cap-and-trade adds 11 cents to the cost of a gallon of gasoline, and $2 billion a year to our collective cost of filling up.
The Brown administration argues that cap-and-trade is not a tax, and that the revenue is incidental, so the Legislature didn’t need to approve the program by a two-thirds vote.
The justices are asking how cap-and-trade squares with Proposition 13’s two-thirds vote requirement for taxes. But if it is a fee, and perhaps could have been approved by a simple majority, what is the connection between revenue generated by cap-and-trade auctions and environmental benefits derived from the revenue?
“If this court finds the auction is deemed to be an invalid tax, what is the remedy regarding the regulations, other than a declaration invalidating the auction component?” the justices asked. In other words, should the justices require the state to refund the $3.5 billion raised if they conclude it is an illegal tax? Once the lawyers answer, the court presumably will set oral argument, with a decision coming late this year.
Brown and the Legislature could resolve the case by renewing AB 32 by a two-thirds vote. But that would require support from Republicans and moderate Democrats, who generally oppose taxes and rely on campaign money from cap-and-trade critics, including the oil industry.
For all the billions being raised and spent, the impact is unclear. Brown has earmarked $850 million for high-speed rail, part of his legacy. But high-speed rail won’t reduce greenhouse gas emissions until it starts carrying passengers, sometime next decade, perhaps.
Lawmakers have earmarked $224 million for bus and rail lines, and $154 million for housing built close to transit and employment, plus money for many smaller programs. But the Air Resources Board says programs funded by the cap-and-trade revenue so far would remove 14.3 million metric tons of greenhouse gas. However, that reduction won’t be fully realized until 2095. That’s not a typo. Nor is this: Each year, California emits 459 million metric tons of greenhouse gases.
We should hope our great-grandchildren won’t depend on carbon to power their lives. Climate change is an urgent problem and shouldn’t come down to a fight over pork. Aspirations and goals matter. So do results and the law, inconvenient though all that might be.