Environment

Lawsuit is 60th filed by Attorney General Becerra against the Trump Administration

SACRAMENTO – California Attorney General Xavier Becerra today, with Governor Gavin Newsom and the California Air Resources Board, led a coalition of 24 attorneys general and the cities of Los Angeles and New York in filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA). The lawsuit challenges the Trump Administration’s regulation designed to preempt California’s greenhouse gas emissions and Zero-Emission Vehicle (ZEV) standards, also known as California’s Advanced Clean Car Standards. These standards — authorized in 2013 by a waiver from the Environmental Protection Agency (EPA) and followed, in whole or part, by 13 other states and the District of Columbia — are a key part of state efforts to protect public health and the environment. In the lawsuit, the coalition asserts that this Preemption Rule is unlawful and should be vacated.

“Two courts have already upheld California’s emissions standards, rejecting the argument the Trump Administration resurrects to justify its misguided Preemption Rule. Yet, the Administration insists on attacking the authority of California and other states to tackle air pollution and protect public health,” said Attorney General Becerra. “The Oval Office is really not a place for on-the-job training. President Trump should have at least read the instruction manual he inherited when he assumed the Presidency, in particular the chapter on respecting the Rule of Law. Mr. President, we’ll see you in court.”

“California won’t bend to the President’s reckless and politically motivated attacks on our clean car waiver,” said Governor Newsom. “We’ll hold the line in court to defend our children’s health, save consumers money at the pump and protect our environment."

"I started my career litigating to clean up the air in California with one of the first Clean Air Act cases ever filed," said CARB Chair Mary D. Nichols.  "I won then and we will win now. We are ready to keep fighting to protect our people and our planet."

Under the federal Clean Air Act, California may apply for a waiver from EPA to set its own vehicle emissions standards that are at least as protective as the federal government’s standards, and EPA must approve the waiver, unless it makes certain findings. Over the past 50 years, the EPA has granted 100 waivers to California. Thanks to California’s vehicle emissions program, the state has reduced emissions by hundreds of thousands of tons annually, encouraged the development of emission controls technologies, and paved the way for stronger federal standards. 

In January 2012, California adopted its comprehensive Advanced Clean Cars Program for cars and light duty trucks in model years 2017 through 2025. The program combines the control of smog-causing pollutants and greenhouse gas emissions into a single coordinated package. The program improves air quality and curbs greenhouse gases while saving drivers money at the pump. On its own, the California program would reduce carbon dioxide emissions in the state by approximately 14.4 million metric tons a year by 2025 and 25.2 million metric tons a year by 2030. When accounting for emissions savings from other states that have adopted California’s standards, these emission reductions nearly triple. 

Through its unlawful Preemption Rule, NHTSA is attempting to declare the California greenhouse gas and ZEV standards preempted under the Energy Policy and Conservation Act (EPCA), based on arguments repeatedly rejected by multiple courts. In doing so, NHTSA oversteps the authority granted to it by Congress and ignores Congress’s careful and repeated preservation of California’s authority. 

In the lawsuit, California asks the court to strike down the regulation as unlawful on the basis that NHTSA:

• Purports to exercise authority that Congress has not granted the agency: namely, to decree what EPCA does or does not preempt;
• Imagines an inherent conflict between two sets of rules, California’s GHG and ZEV standards and NHTSA’s fuel economy standards, that have co-existed for years;
• Willfully misreads EPCA as preempting state emission standards it explicitly directed NHTSA to account for, and as implicitly repealing portions of the Clean Air Act;
• Ignores the authority and intent of Congress, which has repeatedly reaffirmed and embraced California’s authority over the last four decades;
• Disregards the National Environmental Policy Act by failing to assess or analyze the damage that the agency’s Preemption Rule would inflict on the environment and public health;
• Acts arbitrarily and capriciously by failing to explain about-faces from its previous positions or its reasons for acting;
• Fails to respect states’ authority to protect public health and welfare, and ignores the adverse effect the Preemption Rule would have in California, where passenger vehicles and other mobile sources are the largest sources of multiple pollutants. Controlling this pollution is key to improving air quality statewide, including for millions of Californians who still breathe air that does not meet federal air quality standards, and as a result, suffer increased rates of respiratory and cardiovascular health impacts and premature deaths; and
• Disregards the role these standards play in helping California and other states meet National Ambient Air Quality Standards. In California, for instance, areas such as the South Coast and San Joaquin Valley are classified as extreme nonattainment areas, where vehicle emissions have been the largest contributor to air pollution and smog. Many other states have followed suit in their state implementation plans.

Attorney General Becerra leads the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia; as well as the cities of Los Angeles and New York.

A copy of the complaint can be found attached to electronic version of this release here.

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement in response to reports that the Trump Administration would revoke California’s waiver to set greenhouse gas emission and ZEV standards:

“While the White House clings to the past, automakers and American families embrace cleaner cars,” said Attorney General Becerra. “The evidence is irrefutable: today's clean car standards are achievable, science-based, and a boon for hardworking American families and public health. It’s time to remove your blinders, President Trump, and acknowledge that the only person standing in the way of progress is you. You have no basis and no authority to pull this waiver. We’re ready to fight for a future that you seem unable to comprehend; we’ll see you in court if you stand in our way.”

 Rescission of Clean Water Rule and reinstatement of prior WOTUS definition will result in ambiguity and confusion at the expense of clear protections for California’s waterways

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement in response to the announcement by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers that they are issuing a final rule rescinding the Clean Water Rule and reinstating the prior confusing and ambiguous Waters of the United States (WOTUS) definition from the 1980s. The rescission rule is the most recent step in the Trump Administration’s plan to weaken pollution control measures under the Clean Water Act.

“California won’t stand for this latest environmental attack by the Trump Administration, which could threaten federal protections for the majority of our waters. Our oceans, lakes, and rivers are all connected – when pollution impacts one source, it impacts them all and affects our communities," said Attorney General Becerra. “While we don’t go looking for a fight, there’s too much at stake for us to let this go. We’re prepared to defend the Clean Water Rule.”

The rule would repeal the Clean Water Rule enacted during the Obama Administration and replace it with the outdated definition of “waters of the United States.” The 2015 Clean Water Rule sought to address significant issues with the prior definition of “waters of the United States.” For decades, the pre-2015 definition had been interpreted differently among the courts, leading to confusion, unpredictability, and inconsistent application of the Clean Water Act. The Clean Water Rule clarified the definition of “waters of the United States” to explicitly include waters in floodplains, riparian areas, and intermittent and ephemeral streams. This was an especially important development for the State of California, as the majority of California’s streams and rivers are intermittent or ephemeral. The Clean Water Rule provided a clear and predictable framework of federal Clean Water Act protections for many California wetlands, rivers, creeks, streams, and tributaries. Many of these California waters may be deprived of clear federal protections from pollution as a result of the rescission.

In September 2017 and August 2018, Attorney General Becerra, as part of a multistate coalition, filed comment letters urging the agencies to withdraw the rescission of the Clean Water Rule, asserting the rescission is inconsistent with and contradictory to the Clean Water Act, is unlawful under the Administrative Procedure Act, and would have a negative impact on the nation’s waters.

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement on the announcement by the Department of Energy (DOE) of its final rule to roll back energy efficiency requirements for certain lightbulbs:

“With all that’s at stake in the world, the Trump Administration has chosen to declare war on energy-efficient light bulbs,” said Attorney General Becerra. “This is but another dim-witted move that will waste energy at the expense of our people and planet. We are prepared to challenge this latest Trump backsliding which seemingly has no bottom.”

On May 3, 2019, Attorney General Becerra issued a comment letter on DOE’s proposal, which would cost consumers $12 billion each year in lost electricity savings by 2025, or $100 per household per year. The letter asserted that, by reversing the 2017 Lamp Rules, DOE would enact a less stringent standard in violation of the Energy Policy and Conservation Act, and that the action was arbitrary and capricious and therefore unlawful under the Administrative Procedure Act.

SACRAMENTO – California Attorney General Xavier Becerra today, leading a 19-state coalition, filed a comment letter opposing the Council of Environmental Quality’s (CEQ) draft guidance on consideration of greenhouse gas emissions under the National Environmental Policy Act (NEPA). NEPA serves as the cornerstone of America’s environmental regulatory framework and requires agencies to consider environmental impacts, including greenhouse gas emissions and the effects of climate change, as part of their decision-making process. The requirement to consider greenhouse gas emissions and climate change was the result of guidance issued by the Obama Administration in 2016 that the Trump Administration is now attempting to revoke. In the comment letter, the coalition asserts that the Trump Administration’s draft guidance encourages agencies to violate NEPA and is arbitrary and capricious.

“This reckless guidance by the Trump Administration leads agencies to ignore the climate crisis, the most pressing environmental challenge of our time,” said Attorney General Becerra. “We’re reminding President Trump once again: if you try to backslide on the safeguards protecting our nation’s environment and put polluters in the driver’s seat, we will hold you accountable."

Enacted in 1969, NEPA is one of the nation’s foremost environmental statutes. NEPA requires that before any federal agency undertakes a “major federal action significantly affecting the quality of the human environment,” it must consider the environmental impacts of the proposed action, alternatives to the action, and any available mitigation measures. Nearly every federal action, from the approval of significant energy and infrastructure projects to key decisions concerning the management of federal public lands, requires compliance with NEPA.

In the comment letter, the coalition asserts that the guidance encourages agencies to violate NEPA, is arbitrary and capricious, and should be withdrawn. The draft guidance moves in the wrong direction, muddying the waters on the analysis of climate change impacts under NEPA and creating new legal risks for projects subject to NEPA. The letter outlines a number of concerns, including that the draft guidance:

• Unlawfully and arbitrarily ignores the growing body of scientific evidence pointing to the threats of climate change, and the contribution of greenhouse gas emissions to this threat;
• Subverts the purpose and requirement of NEPA to promote informed decision-making, by disregarding climate change, the most pressing environmental issue of our time;
• Fails to clarify how agencies should consider indirect greenhouse gas emissions, including upstream or downstream emissions caused by projects such as pipelines and mining;
• Includes vague and undefined terms that would allow agencies to unlawfully cast aside their obligations under NEPA and that conflict with the straightforward language of the previous 2016 guidance;
• Unlawfully suggests that agencies may meet NEPA requirements by comparing projects’ greenhouse gas emissions to other estimates and providing a qualitative summary discussion, which is insufficient;
• Supports an unbalanced approach to cost-benefit analysis by allowing agencies to exclude the costs or quantities of climate impacts;
• Discourages a consideration of required mitigation methods as well as the exploration of reasonable alternatives to reduce climate change; and
• Fails to consider coordination and consistency between NEPA and state environmental analysis.

In August 2018, Attorney General Becerra urged CEQ to carefully consider any changes to NEPA regulations and to prioritize the environment and public health if the Administration chose to move forward with revisions to its guidance.

Joining Attorney General Becerra are the attorneys general of Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the comment is available here.

Twenty percent of California lands would be subject to proposed rule

SACRAMENTO – California Attorney General Xavier Becerra, leading a coalition of five attorneys general, filed a comment letter today with the U.S. Department of Agriculture’s Forest Service (Forest Service) regarding its unlawful proposal to roll back environmental review and public participation requirements for actions on National Forest lands. In particular, the proposed rule would undermine key elements of the agency's National Environmental Policy Act (NEPA) regulations designed to ensure that the vast majority of Forest Service actions are subject to public participation and disclosure, as well as essential environmental reviews for actions that may have significant impacts. Safeguarding these protections and preserving public participation is of paramount importance to California, where the Forest Service administers nearly 20 percent of all land. These areas are home to numerous imperiled species such as the California condor, bighorn sheep, and Pacific fisher, and include numerous scenic and ecologically important sites such as Mt. Shasta, the Lake Tahoe basin, Mt. Whitney, and the Giant Sequoia National Monument.

“This proposed rule is a blatant attempt by the Trump Administration to rip out the backbone of our conservation laws in order to fast-track commercial projects on our National Forest land,” said Attorney General Becerra. “These treasured public lands must be preserved for the safety and use of future generations, not stripped for profit. We will not stand idle as environmental protections of our National Forests are sidestepped and the public is cut out of the process. We’ll fight to protect our National Forests, our environment, and the people of California.” 

The coalition of attorneys general are asserting that the proposed rule is arbitrary and capricious under the Administrative Procedure Act by eliminating public input for almost all Forest Service actions, contradicting NEPA’s purposes, and lacking a reasoned basis. Specifically the rule is unlawful because it:

• Severely reduces public input by eliminating "scoping" for projects that do not require an environmental impact statement (EIS), or nearly all of Forest Service actions;
• Illogically and illegally expands the number of categorical exclusions under the presumption that environmental analysis is unnecessary, including for projects such as construction of up to five miles of road or commercial timber harvests of up to 4,200 acres;
• Lacks a reasoned explanation for removing the presence of sensitive species from the list of extraordinary circumstances barring the use of a categorical exception;
• Discards actions that alter roadless and wilderness areas from the list of actions requiring preparation of an EIS without logical explanation;
• Allows a previous NEPA analysis to satisfy NEPA requirements for a new project, without site-specific review, study of cumulative impacts, or public participation;
• Ignores the impacts of climate change, including climate-fueled fires and the contribution of greenhouse gas emissions to the current climate crisis; and
• Exempts itself from any NEPA documentation prior to the issuance of any final rule. 

While the Forest Service claims that these changes are needed to "increase efficiency" given the increased resources spent on wildfire suppression, the proposed rule does nothing to address the threats posed by climate change or provide an approach that would actually protect communities from increased wildfire risk.  Moreover, all of these changes would undercut NEPA’s intended purposes of providing for public participation to ensure that federal agencies take a "hard look" at the environmental impacts of their actions before those actions occur.

Joining Attorney General Becerra in filing the comment letter are the attorneys general of Colorado, Illinois, New York, and Vermont.

A copy of the comment letter can be found here.

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a multistate coalition, filed an amicus brief in support of plaintiffs in Physicians for Social Responsibility v. Wheeler. In this case, plaintiffs are challenging a directive by the U.S. Environmental Protection Agency (EPA) that prohibits any scientist who receives EPA grant money from serving on any EPA advisory committee. In the amicus brief the states assert that the directive hampers California’s ability to protect its residents from environmental harms and would deprive scientists at the University of California conducting research on behalf of the EPA of the opportunity to participate on an EPA advisory committee. That restriction harms both the scientists and EPA.

“We’re calling out EPA’s attempt to purge independent academic scientists from EPA advisory committees and stack the deck with industry-funded representatives,” said Attorney General Becerra. “Advisory boards are strengthened by academic and government scientists who shouldn’t have to sacrifice their funding in order to participate on these committees. We applaud the scientists bringing this case to court. In California, we believe in and proudly support science.”

Advisory committees play an essential role in EPA decision-making, providing the EPA with high-level scientific guidance on both individual regulatory standards and on the EPA's overall direction. The directive undermines the integrity of the EPA decision-making process and threatens to do serious harm to our health and environment. It is forcing many of the best environmental and public health scientists in the country to choose between obtaining valuable EPA funding for their research or serving on high-impact EPA advisory committees. Many academic scientists get funding from EPA for their research and serve on these advisory committees. The EPA wrongly contends that scientists who receive grant funding from the EPA have a conflict of interest and ignores that scientists who receive funding from industry often have a substantial personal and financial interest in the work of EPA advisory committees. As a direct result of the directive, the percentage of industry-backed scientists on these committees has dramatically increased.

A copy of the brief is available here.

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of 12 attorneys general in submitting a comment letter opposing a proposal by the U.S. Environmental Protection Agency (EPA) that risks exposing endangered species to harmful pesticides. Under the proposal, the EPA would substantially alter the current method used to determine whether, and to what extent, a pesticide “may affect” an endangered species or critical habitat and thereby trigger the requirement to consult with federal wildlife agencies regarding pesticide impacts and mitigation measures. In the comment letter, the Attorneys General assert the proposal will allow more pesticide registrations to go forward without, among other things, being assessed by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, which are responsible for listing and protecting endangered species.

“The Trump Administration’s proposed pesticide evaluation method recklessly threatens wildlife and our state’s natural ecosystem,” said Attorney General Becerra. “There are nearly 300 endangered species in California alone that could be put at risk by this proposal. By design, pesticides are toxic and assessing their impact should not be taken lightly. We’re urging the EPA to rescind this foolhardy proposal.” 

In the letter, the coalition argues the proposal violates the Endangered Species Act (ESA) and is arbitrary and capricious. Pesticides must be registered with the EPA before they can be used, sold, and distributed in the United States. Under the proposed changes to the evaluation method, the EPA will be able to approve pesticides without first consulting the U.S. agencies that are charged with protecting endangered species. In particular, the proposed evaluation method changes the scope and requirements for pesticide evaluation by:

• Unlawfully redefining and limiting what species may be considered impacted by the pesticide;
• Abandoning the prior, more precautionary approach to estimating the potential amount and location of pesticide use;
• Excluding consideration of impacts to species where pesticide use only infringes on small percentages of their habitat;
• Artificially limiting consideration of pesticide drifts;
• Ignoring potential effects on species if there is uncertainty about whether they are extinct; and
• Failing to consider impacts of species on federal lands. 

In California, the ESA is credited with the survival and recovery of endangered species such as the brown pelican, the grey wolf, and the California condor. The current pesticide evaluation method allows federal agencies to prepare biological opinions and alternatives for proposed actions affecting wildlife. Without these protections, pesticides like DDT would continue to threaten the extinction of animals such as bald eagles. Impacts to wildlife from pesticide exposure can cause acute or long-term harms like cancer, kidney and liver damage, and birth defects. Exposure can also alter an organism’s behavior, affecting its ability to survive. For example, for bees, even small levels of pesticides can result in sublethal effects that negatively influence their mobility, feeding behaviors, and navigation.

In filing the comment letter, Attorney General Becerra joins the Attorneys General of New Mexico, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Washington, Vermont and the District of Columbia.

A copy of the letter is available here.

Chlorpyrifos pesticide residue remains on many foods consumed by infants and children

SACRAMENTO — California Attorney General Xavier Becerra today, as part of a multistate coalition, filed a lawsuit in the U.S. Court of Appeals for the Ninth Circuit challenging the U.S. Environmental Protection Agency’s (EPA) refusal to make a required safety finding for the dangerous pesticide chlorpyrifos. Chlorpyrifos is a pesticide used on more than 80 food crops. Infants and children consume a wide variety of these crops and are especially susceptible to the adverse health effects caused by the pesticide, which includes neurodevelopmental delays and other problems. The states’ Ninth Circuit petition concerns EPA’s failure to take action on a proposed rule that would have prevented exposure of the public to chlorpyrifos in food.

“Parents shouldn’t have to question whether everyday fruits and vegetables will poison their children,” said Attorney General Becerra. “The EPA is egregiously sacrificing our children’s health by refusing to make a determination on this dangerous pesticide. Today we’ll hold their feet to the fire and force them to do their job.”

“Chlorpyrifos causes significant harm to our children, farm workers and vulnerable communities,” said Governor Gavin Newsom. “California is doing our part to address the harms of this pesticide — it’s time for D.C. to do theirs.”

The coalition asserts that the order denying the states’ objections by Alexandra Dunn, Assistant Administrator of the EPA – also known as the Dunn Order – should be overturned as arbitrary and capricious and unlawful. The petition states the order:

• Violates the Federal Food, Drug and Cosmetic Act (FFCDA), which requires that the EPA ensures there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to pesticide chemical residue;
• Contains no determination of a reasonable certainty that no harm will result from exposure to residue of the pesticide, as required by the FFDCA;
• Disregards EPA’s statutory requirement to publish a safety determination of the pesticide residue for infants and children;
• Continues EPA’s years-long pattern of delay in addressing the hazards of chlorpyrifos; and
• Departs from EPA’s prior determination that it could not find chlorpyrifos safe.

Attorney General Becerra called on the EPA to issue safety findings on the pesticide in June 2017. In March of the following year, the Ninth Circuit granted Attorney General Becerra’s motion to intervene in another lawsuit after the EPA reversed course on a rule that would revoke all residue levels of chlorpyrifos in food, and issued an order that left in effect the existing level without making a required finding on the pesticide’s safety.

A copy of the petition can be found here.

SACRAMENTO – California Attorney General Xavier Becerra today issued the following statement after a Superior Court granted a preliminary injunction halting Westlands Water District's participation in an unlawful project to raise the Shasta Dam: 

“The court has stopped Westlands Water District from moving forward with a project that would hurt the people and environment in our state,” said Attorney General Becerra. “Maybe others believe they’re above the law and can get away with it. But, in California, we’re prepared to prove otherwise.” 

Attorney General Becerra filed the lawsuit on May 13, 2019 to block Westlands from taking an unlawful action to assist in the planning and construction of a project to raise the height of the Shasta Dam. The project poses significant adverse effects on the free-flowing condition of the McCloud River and on its wild trout fishery, both of which have special statutory protections under the California Wild and Scenic Rivers Act. The Act prohibits any agency of the State of California, such as Westlands, from assisting or cooperating with actions to raise the Shasta Dam.

A copy of the ruling can be found here.