Legislation

SACRAMENTO – Attorney General Edmund G. Brown Jr. and 14 other states yesterday urged the Obama Administration to overturn the Bush EPA’s “shameful denial” of California’s request to enforce its automobile greenhouse gas emissions law.

“The Bush Administration’s shameful denial of California’s waiver fundamentally ignored the serious impacts that global warming is having on our state,” Attorney General Brown said. “The Obama Administration should overturn Bush’s wrongheaded decision and allow California to enforce its greenhouse gas law.”
In a comment letter to EPA Administrator Lisa Jackson, Attorney General Brown, joined by 14 other states, wrote that under the Clean Air Act, California is entitled to be granted authority to enforce its law and EPA should grant the waiver immediately.

In 2002, California enacted legislation requiring a 30 % reduction in automobile greenhouse gas emissions by 2016. But before the State can enforce its law, EPA must grant a Clean Air Act wavier.

The Bush EPA denied California’s request for such a waiver in 2007, arguing that California did not need the regulation to address 'compelling and extraordinary conditions.' This denial reversed decades of agency practice and ignored the dangerous consequences of global warming to the State of California.

Global warming threatens California's Sierra mountain snow pack, which provides the state with one-third of its drinking water. California also has approximately 1,000 miles of coastline and levees that are threatened by rising sea levels.

In the 40-year history of the Act, EPA has granted approximately 50 waivers to California for innovations like catalytic converters, exhaust emission standards, and leaded gasoline regulations. Until the Bush Administration’s decision, a waiver request had never been denied.

On February 6, 2009, EPA Administrator Lisa Jackson announced that the Obama EPA would review the Bush EPA’s denial of California's waiver request.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California.

Brown’s letter was also signed by the New York City Corporation Counsel and 14 other states, including Arizona, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and the Pennsylvania Department of Environmental Protection.

Attorney General Brown's letter to EPA Administrator Lisa Jackson is attached.

FOR IMMEDIATE RELEASE
March 5, 2009
Contact: Christine Gasparac (916) 324-5500

Brown Urges Obama Administration to Allow California to Enforce Tough Greenhouse Gas Emissions Law

SACRAMENTO –Attorney General Edmund G. Brown Jr. today urged the Obama Administration to overturn the Bush EPA’s “illegal and shortsighted” denial of California’s request to carry out its state law requiring a 30% reduction in tailpipe greenhouse gas emissions.

“The Clean Air Act gives California the right to pass tough laws to fight pollution,” Attorney General Brown said. “The Bush EPA adopted an illegal and shortsighted policy by blocking California’s tough emissions standard. California’s law will drive technological innovation and cut greenhouse gases. I urge the Obama Administration to grant our request.”

In 2002, California passed AB 1493, which requires a 30 % reduction in tailpipe greenhouse gas emissions by 2016, starting with model year 2009.

EPA must grant California’s waiver request before the state can enforce its tough emissions standards. The Bush administration had been ducking California’s request since 2005. In 2007, the Bush Administration denied California’s request.

On February 6, 2009, EPA Administrator Lisa Jackson announced the Agency’s decision to review its denial of California’s request to implement its greenhouse gas emission law.

There are 32 million registered vehicles in California, twice the number of any other state. Cars generate 20% of all human-made carbon dioxide emissions in the United States, and at least 30% of such emissions in California. If California’s landmark global warming law—and the corresponding 30% improvement in emissions standards—were adopted nationally, the United States could cut annual oil imports by $100 billion dollars at $50 per barrel.

Attorney General Brown’s letter to EPA Administrator Lisa Jackson is attached.

March 6, 2009

Via E-Mail and First Class Mail

The Honorable Lisa P. Jackson
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: Request for Comments on California State Motor Vehicle Pollution Control Standards; Greenhouse Gas Regulations; Reconsideration of Previous Denial of a
Waiver of Preemption; 74 Fed. Reg. 7040 (Feb. 12, 2009); Docket ID No. EPA-HQ-OAR-2006-0173
Dear Administrator Jackson:

These comments are submitted in support of California’s waiver application. I strongly support EPA’s decision to reconsider its decision denying the waiver. The denial was in error, on both legal and factual grounds. EPA’s willingness to review that decision represents an important step after years of Bush Administration resistance to environmental protection. I intend to submit more detailed comments addressing both the factual errors and legal defects in EPA’s waiver denial decision. Today, however, I make two points: First, EPA’s decision to reconsider its waiver denial is proper. Second, given the urgency of dealing with global warming, EPA should grant California’s waiver as soon as possible.

EPA’s Decision to Reconsider the Waiver Denial is Appropriate and Proper.

EPA’s decision to reconsider its denial of California’s waiver request is both sound and legally correct. See, e.g., Sierra Club v. Vanantwerp, 560 F. Supp.2d 21 (D. D.C. 2008). There are substantial defects in EPA’s waiver denial decision that require correction, and it makes sense for EPA, the expert administrative agency, to cure its own mistakes.

In this denial, EPA departed from long standing past practice and considered whether California’s GHG emissions standard was needed to meet compelling and extraordinary conditions related to a specific pollutant – GHG emissions. Until this decision, EPA had looked at California’s emissions program in its totality, as the Clean Air Act requires. 42 U.S.C. § 7543. California’s separate emissions program has been approved because of the state’s climate, geography, extraordinarily severe air quality problems, and the large number and concentration of motor vehicles contributing to these problems. The Administrator also determined that climate change impacts in California were not sufficiently different from the nation as a whole and, therefore, did not support adoption of state standards regulating motor vehicle greenhouse gas emissions. This conclusion ignores that California continues to have compelling and extraordinary conditions justifying its own mobile source program, and that the impacts from climate change will be particularly severe in the state, given California’s extensive coastline, significant dependence on snow pack for water supply, vulnerability to floods and wildfires, severe ozone problem, and other impacts. These fundamental errors, among others, undermine the legitimacy of the waiver denial because they misconstrue the Clean Air Act and depart from decades of prior, sound agency practice.

In the landmark case Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Bush Administration fought to avoid its responsibility to deal with the threat of global warming. It took the case all the way to the U.S. Supreme Court, which rejected its arguments and ruled that global warming emissions are pollutants under the Clean Air Act. Even after the Court’s decision, EPA delayed taking any action on greenhouse gases for close to two years. EPA’s decision denying California’s waiver was another attempt to avoid the agency’s obligation to administer the Clean Air Act, as Congress wrote it. Now that EPA is reconsidering that decision, California looks forward to working with EPA so that these important standards can, finally, become effective.

EPA Should Grant the Waiver as Soon as Possible.

Global warming is the arguably most urgent environmental issue of our time. Our way of life and perhaps even our survival depend on our response to this problem. The regulations before you are a first, bold step toward dealing with global warming. They are ready to be enforced. Without Congress’ foresight in allowing California its important leadership role in setting automobile emissions standards, we would not have these ready-to-implement regulations today. All we need is a waiver from EPA. That waiver is long overdue. We have been waiting since 2005 for it.

Fourteen states plus the District of Columbia have adopted California’s greenhouse gas emissions regulations, with another four states in the process. The 14 states represent at least 37 percent of the nation’s vehicles and the four states in the process will raise the level to approximately 47 percent. There are several more states debating whether to adopt the program and, if they move forward, will represent over half the nation. We are optimistic that EPA will, upon reconsideration, grant California’s waiver request, thereby allowing California’s standards to become effective.

EPA therefore should waste no time in granting California’s waiver application as soon as possible. I am confident that upon reconsideration, the agency will determine that the request is consistent with the Clean Air Act and must be granted.
Sincerely,

EDMUND G. BROWN JR.
Attorney General

cc: Dickinson.David@EPA.gov

San Francisco -- Attorney General Edmund G. Brown Jr. today renewed his call for the California Supreme Court to invalidate Proposition 8, in advance of Thursday's oral arguments.

His comments can be found at: http://www.huffingtonpost.com/jerry-brown/proposition-8-should-be-s_b_17...

The text of Attorney General Brown's post follows:

Proposition 8 Should Be Struck Down

The California Supreme Court finds itself center stage this Thursday when it will hear oral arguments on whether it should uphold Proposition 8's ban on same-sex marriage.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.

As California's Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons -- because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.

Some vigorously disagree. That's the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California's history and the nature of our constitution.

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that 'all people are by nature free and independent and have inalienable rights' and 'among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.'

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.

In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of 'liberty' includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote -- whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).

I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.

Sacramento–Attorney General Edmund G. Brown today announced that a coalition of 18 states and cities have won reversal of controversial Bush-era pollution standards “justified by nothing more than junk science” and which threatened to undermine public health.

"This dangerous air pollution causes thousands of premature deaths each year. Yet the Bush Administration callously ignored the facts and put forward a standard justified by nothing more than junk science,” Attorney General Brown said. “Today, the DC Circuit Court cleared the way for the Obama Administration to right this wrong.”

Fine soot pollution (also known as fine particulate matter pollution or “PM 2.5”) comes from diesel vehicles, power plants and other sources, and is prevalent in urban areas. Because fine soot can lodge deep in the lungs, it can cause numerous harmful health effects, including premature death, chronic respiratory illness, decreased lung function, cardiovascular disease and asthma. Children, senior citizens, and people with existing lung and heart diseases are especially susceptible to harm from fine soot pollution.

That is why EPA’s scientists and scientific advisory committee recommended strict new standards for fine soot in 2005. However, the Bush Administration rejected their advice and chose a weaker, less protective standard. Today’s decision clears the path for the Obama Administration to issue new, stronger standards.

Today’s decision, issued by the federal Court of Appeals for the D.C. Circuit, agreed with the coalition that the Bush EPA had acted illegally in issuing weak air pollution standards for fine soot, acting against the advice of EPA professional staff and EPA’s own scientific advisory committee. The court found that the Bush EPA had also erred by not taking into account the special sensitivity to air pollution of children, elderly people and other vulnerable populations. The Court remanded the standards to the new Obama EPA to issue new, more protective air pollution standards for fine soot that will better protect public health.

The states, cities and other state agencies joining in the challenge that led to today’s victory are: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, New York, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The States of Arizona, Maryland and Massachusetts also joined as friends of the court.

'Today’s decision is a return to sanity by an agency whose fairness and balance had been sabotaged by the partisan extremism of the Bush Administration.

This is but a first step, but it signals that this EPA has a renewed commitment to sound science and to rule of law.

California has led the way on global warming, and the state should be allowed to continue in its leadership role in reducing automobile emissions and addressing global warming.”

SACRAMENTO – Attorney General Edmund G. Brown Jr. today called on the federal district court to terminate an “unaccountable prison receivership” and its extravagant $8 billion prison construction plan because both violate federal law.

“The court should terminate this unaccountable prison receivership and its $8 billion construction plan, restoring a dose of fiscal reality to the provision of inmate medical care in California,” Attorney General Brown said. “The federal receivership has turned into its own autonomous government operating outside the normal checks and balances of state and federal law,” Brown added.

The Receiver’s $8 billion plan calls for adding 7 new prison health care facilities containing 10,000 new beds for prisoners -- that’s 7 million square feet, or the size of 70 new Walmarts. The plan would also renovate space at each of the 33 existing state prisons.

A draft of the plan also includes yoga rooms, horticultural therapy, extensive landscaping to obscure prison fences, music and art therapy, regulation basketball courts, quiet rooms, an emphasis on natural light and high ceilings, and a so-called “treatment mall.” A subsequent draft contains most of the same features without the graphic detail.

The construction of new facilities, as well as the upgrading of existing facilities, is estimated to cost $8 billion. In addition, it will cost $1.7 billion to $2.3 billion per year to operate these facilities. The projected operations cost per inmate is $170,000 to $230,000 per year. This extravagant plan comes at a time when California is facing a fiscal catastrophe and funding for school children is being slashed.

The Termination Motion
In a motion filed today in the U.S. District Court for the Northern District of California, the Attorney General urged the court to terminate the Receivership and his plan for the construction of prison healthcare facilities – because the Prison Litigation Reform Act prohibits judges from ordering the construction of state prison facilities and limits court-imposed remedies to the “least intrusive” possible.

In place of the $8 billion plan, the Attorney General called for returning the prison health care system to the State and the appointment of an interim Special Master to conduct hearings and make proposed findings of fact.

Background
California is under Federal court order to provide health care that is not “deliberately indifferent” to the health needs of prisoners. The State of California is committed to providing such care.

The State – under the receivership – has taken significant steps to improve inmate health care. California has increased health care staffing and filled almost 90 percent of open physician positions, improved emergency response, professional standards, contracting systems, and health care screenings.

In total, California has increased per inmate health care spending from $7,601 per year in 2005-2006 to $13,778 in 2007-2008. By comparison, spending per inmate in federal prisons will be $4,413 per inmate in 2008-2009. The average cost of health care coverage for a single person in California in 2008 was $4,906.

Nevertheless, the Receiver continues to insist on a massive program that would lead to the construction of facilities and amenities that go well-beyond standards required by the Constitution and federal law. The Prison Litigation Reform Act, signed into law in 1996, forbids judges from ordering construction of state prison facilities, and requires that any plan that a court orders be “narrowly drawn, extend “no further than necessary” to correct the violation of the Federal right, and be the “least intrusive means necessary.” (18 U.S.C. § 3626(a)(1)(A))

On August 25, 2008, the Receiver filed a motion to hold the Governor and other State officials in contempt for failing to turn over to the Receiver $8 billion for his construction plans, and the district court ordered the state to make a down-payment of $250 million by November 5.

Subsequently, Brown appealed that decision to the Ninth Circuit, which stayed the district court order. The Ninth Circuit will hear oral argument in the case on February 12, 2009.

Sacramento – Attorney General Edmund G. Brown today issued the following statement in response to President Obama’s direction to the EPA to reconsider California’s Clean Air Act waiver to enforce its landmark global warming legislation.

“Today’s dramatic announcement by President Obama marks the first time that an American President has taken decisive action to deal with global warming.

California welcomes President Obama’s commitment to make cars cleaner, more efficient, and less dependent on foreign oil.

What a difference from the dangerous paralysis of the Bush years.”

Last year, Attorney General Brown filed suit against the Bush Administration for denying California’s request for a Clean Air Act waiver to enforce the state's landmark greenhouse gas emissions standards. This was the first time that the EPA had denied a Clean Air Act waiver request from California.

FOR IMMEDIATE RELEASE
Thursday, January 22, 2009
Contact: Christine Gasparac: (916) 324-5500

San Francisco – Attorney General Edmund G. Brown Jr. today filed a brief in federal court opposing a preliminary injunction that would conceal the identities of contributors to the Yes on Proposition 8 campaign.

“Political democracy demands open debate, including prompt disclosure of the identities of campaign donors,” Attorney General Brown said. “Backers of Proposition 8 should not be allowed to carve out a special privilege of anonymity for themselves alone.”

The opposition brief, filed today with the U.S. District Court for the Eastern District of California, contends that Proposition 8 supporters do not meet the criteria for the limited exemption to valid campaign disclosure laws, an exemption developed by the Supreme Court to protect the ability of historically persecuted minority parties to engage in political speech. This limited exemption has applied to groups like the Socialist Workers Party in Ohio and the NAACP in Alabama in 1958, which both demonstrated that disclosure would result in significant harm and threaten the viability of their organizations.

By contrast, the supporters of Proposition 8 are a well-financed association of individuals who raised nearly $30 million in support of a ballot measure that received 52.3 percent of the vote. There is no risk that disclosure of donors will harm their ability to organize or otherwise pursue their political views.

Additionally, there is no justification to shield donors from post-election reporting requirements. Rather, these requirements help to prevent kickbacks, laundering, and other improper uses of campaign funds.

Any instances of violence or harassment against donors are deeply regrettable, but California’s civil and criminal justice systems are the appropriate venues to seek relief from potentially illegal conduct.

The bottom line is that the State’s campaign finance disclosure laws result in more speech, not less, and the public’s interest is better served in this case by requiring disclosure from those supporters of Proposition 8 who donated $100 or more.

Sacramento -- Attorney General Edmund G. Brown Jr. today renewed his call for the California Supreme Court to invalidate Proposition 8 because it deprives people of the right to marry—an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.

“The amendment process cannot be used by a bare majority to strip away the fundamental and inalienable rights of a protected minority without a compelling justification,” Attorney General Brown said. “Since there is no compelling justification, Proposition 8 must be stricken.”

Attorney General Brown today responded to the 63 “Friend of the Court” briefs that were filed last week with the California Supreme Court. Brown contends that the amendment process cannot be used to extinguish fundamental constitutional rights enshrined in article I, section 1 of the California Constitution without compelling justification. The court found in the In re Marriage Cases that no such compelling justification exists. Accordingly, Proposition 8 must be stricken.

Brown also takes on the arguments of supporters of Proposition 8 head on.

Brown argues that Proposition 8 supporters are wrong to suggest that the people’s right to amend the Constitution through the initiative process is unlimited and that the Court does not have the authority to invalidate Proposition 8. The Court, in fact, has exercised judicial review previously to invalidate a constitutional amendment that was deemed substantively improper.

He also argues Proposition 8 does not invalidate the same-sex marriages entered into between June 16 and November 4, 2008, as some Proposition 8 supporters contend. To invalidate those marriages, Brown argues, would violate the due process rights of those same-sex couples who entered into marriage based on the Court’s ruling in In re: Marriage Cases.

Sacramento – Attorney General Edmund G. Brown Jr. today urged a federal appeals court to block the court-appointed Receiver from “commandeering $8 billion” from the shrinking California Treasury for extravagant prison construction.

“Federal law does not allow the Receiver to commandeer the finances of the state to spend $8 billion for unaccountable and extravagant prison construction,” Attorney General Brown said. “The court should rein in the Receiver, who is now spending more than $2 billion per year on inmate health care. This is almost $14,000 per inmate and nearly double what it was just three years ago.”

In a reply brief filed today with the United States Court of Appeals for the Ninth Circuit, Attorney General Brown describes the fundamental legal errors that the court-appointed Receiver has made in attempting to force the state to fund his prison construction program against its will.

Brown argues that the Prison Litigation Reform Act, signed into law in 1996, bars federal judges from ordering the construction of new prisons and that any relief must involve the least intrusive means necessary.

A just-released draft of the Receiver’s plan, however, demonstrates the unbridled scope of the Receiver’s plan.

The plan calls for the construction of 7 new prisons with 10,000 new beds -- the size of 70 Walmarts. It envisions yoga rooms, regulation basketball courts with electronic bingo boards, music and art therapy, horticultural therapy, and landscaping which shields fences from inmates’ view. While some details have been deleted in a subsequent draft, the fundamental structure and many of the extravagant amenities remain.

Brown argues that to force such an $8 billion plan on California against its will—particularly at a time when the state must make huge budget cuts to programs including health care, infrastructure, and schools—violates federal law and the state’s sovereign immunity under the 11th Amendment to the Constitution.

The appellate court, therefore, should reverse the District Court’s order of a $250 million down-payment toward the $8 billion plan.

The State of California has acknowledged the need to provide health care that meets Constitutional standards, and has taken a series of steps to improve prison health care. This includes increasing the numbers of qualified medical staff at prisons and improving the process by which inmates are assessed and how they are treated.

Under the Receivership, healthcare spending has increased from $7,601 per inmate in 2005-2006 to $13,778 per inmate in 2007-2008. That’s far more than the average citizen in California pays for healthcare coverage.

Background
In August of this year, the court-appointed Receiver filed a motion seeking to compel Governor Arnold Schwarzenegger and Controller John Chiang to allocate $8 billion from the California Treasury over the next 5 years, including $3 billion in this fiscal year, for prison healthcare facility construction. Attorney General Brown has argued that the federal court does not have the authority to mandate state prison construction, nor has the Receiver justified the massive sums called for in his plan.