Legislation

SACRAMENTO– California Attorney General Edmund G. Brown Jr. has urged the Environmental Protection Agency to reverse years of “shameful inaction” on global warming by using its authority under the Clean Air Act to combat dangerous climate change.

“After 8 years of foot-dragging, it is time for the EPA to reverse its shameful inaction on global warming and use its authority under the Clean Air Act to combat dangerous climate change,” Brown said.

Attorney General Brown today urged EPA action in two ways:

• Brown joined with thirteen other Attorneys General; the California Air Resources Board and four other state environmental agencies; the cities of Minneapolis, Seattle & Salt Lake City; and the New York City Corporation Counsel in writing a letter to EPA that lays out key principles EPA should adhere to in regulating greenhouse gases.
• Separately, Brown submitted a comment letter to EPA responding to the 500-page advance notice of rulemaking for regulating greenhouse gases under the Clean Air Act issued by EPA over the summer.

Both letters called on EPA to do the following:

• Make a determination as to whether greenhouse gases endanger public health and welfare -- as required by the 2007 Supreme Court decision in Massachusetts v. EPA;
• Reverse the denial of California’s preemption waiver for California’s landmark greenhouse gas automobile regulations, allowing California and the thirteen other states that have adopted these standards to begin immediately enforcing the regulations;
• Adopt controls for large polluting sources such as coal-fired power plants, cement plants and refineries;
• Adopt controls for cars, trucks, aircraft, ocean-going vessels, and non-road engines that are responsible for more than one-third of greenhouse gas emissions in the U.S. Technology to reduce emissions from these sources is available and cost-effective.

In the joint letter to EPA, Brown and his co-authors wrote:

“The Clean Air Act is one of our most successful regulatory programs. It has a proven track record of effectively dealing with complex air pollution problems that implicate a multitude of sources and a wide range of economic activities, and it has done so without harming the economy. We strongly disagree with the claims by the departing Administrator that the Clean Air Act is ‘ill-suited’ to the task of regulating greenhouse gases. As the analysis by EPA’s professional staff in the ANPR repeatedly points out, the Clean Air Act provides EPA with flexibility to regulate through a variety of approaches, including performance standards, operational controls, market-based incentives and other measures, and also to tailor its traditional strategies to suit the particular challenges posed by GHG emissions.”

Attorney General Brown has been a leader in the fight against global warming by testifying before Congress, filing numerous administrative and legal challenges, and speaking at conferences throughout the state.

The Attorney General has filed several petitions with EPA requesting that it regulate greenhouse gases from ocean-going vessels, aircraft, and non-road vehicles; filed comments urging that EPA regulate emissions from power plants and other large polluting sources; and sued the Department of Energy for failing to require updated efficiency standards for appliances and other equipment.

In California, the office has reached path-breaking settlements with San Bernardino County and the City of Stockton requiring them to adopt Climate Action Plans for reducing greenhouse gas emissions and has filed over 40 comments letters on local land-use projects under the California Environmental Quality Act.

For more information, see the Attorney General’s global warming webpage at http://ag.ca.gov/globalwarming/.

FOR IMMEDIATE RELEASE
November 17, 2008
Contact: Christine Gasparac (916) 324-5500

Attorney General Brown Urges California Supreme Court to Review Constitutionality of Proposition 8

SACRAMENTO—California Attorney General Edmund G. Brown Jr. today urged the California Supreme Court to accept review of the legal challenges to Proposition 8 and for this matter of widespread concern to be “promptly resolved.”

“The profound importance of the issues raised by Proposition 8 warrants that this matter be reviewed and promptly resolved by the California Supreme Court.” Attorney General Brown said.

In a set of briefs filed with the Court today, Attorney General Brown wrote that: “review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California. The constitutionality of the change created by Proposition 8 impacts whether same-sex marriages may issue in California and whether same-sex marriages from other states will be recognized here. There is significant public interest in prompt resolution of the legality of Proposition 8. The Court can provide certainty and finality in this matter.”

Typically, matters are brought before lower courts before the Supreme Court hears the case. However, petitioners have asked the Supreme Court to accept the review directly to bring an early resolution to the matter.

Attorney General Brown opposes a stay on Proposition 8, arguing that it would increase uncertainty related to marriages performed in California. The Attorney General’s brief states that “the public interest would be best served not by issuing a temporary stay, but by an expedited resolution of the important issues raised by the petitions.”

Attorney General Brown continues to believe that same-sex marriages performed between June 17 and November 4, 2008 remain valid and will be upheld by the Court.

Attached are the briefs that were filed today with the Court.

SACRAMENTO – California Attorney General Edmund G. Brown Jr. today warned the U.S. Department of the Interior for a second time that its proposed changes to the Endangered Species Act could put “entire species and ecosystems at risk for complete destruction,” after the initial warnings were ignored by the Department. The Attorney General believes that the Bush Administration’s proposed changes are in violation of federal law and could gut the scientific review process of the Endangered Species Act.

“In its final days in office, the Bush Administration is trying to make wholesale changes to the Endangered Species Act,” Attorney General Brown said. “The Bush Administration wants to eliminate a requirement in the Endangered Species Act that mandates scientific review and consultation of any land-use decision that might threaten endangered species and their habitats. These proposed changes are unlawful, contrary to the National Environmental Policy Act, and put entire species and ecosystems at risk for complete destruction. The Administration should abandon this effort, or at the very least, complete a full Environmental Impact Statement.”

Passed in 1973, the Endangered Species Act protects threatened species and ecosystems from extinction.

In August 2008, the Department of the Interior proposed to eliminate a requirement in the Endangered Species Act that mandates scientific review and consultation of any land-use decision that might threaten endangered species and their habitats. The proposed changes could allow a government agency to permit mining, logging, and other commercial activities to take place on federally protected land without scientific review. The Department is required to open its proposal to public comment in order to make any changes, and it received approximately 300,000 comments. Yet, the Department took only three days to review the letters, including detailed evaluations of the proposed changes.

Essentially ignoring the public comment, the Department has concluded that that the proposed changes have no impact on the environment.

The following is the text of the Attorney General’s comment letter.

Public Comment Processing
Attention: 1018-AT50
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 North Fairfax Drive, Suite 222
Arlington, VA 22203

RE: Comments on Environmental Assessment on Proposed Rule Amending Regulations Implementing Section 7 of the Endangered Species Act

Dear Sir or Madam:

The Attorney General of the State of California submits the following comments, in his independent capacity as representative of the people of the State, on the Environmental Assessment (EA) for the proposed regulations implementing section 7 of the federal Endangered Species Act (ESA), 16 U.S.C. § 1536. 73 Fed. Reg. 47868 (Aug. 15, 2008). We previously submitted comments on the proposed regulations, which, inter alia, raise serious questions about the environmental impacts of these rule changes. Those issues are not addressed in the EA. In our previous comment letter, we set forth our opinion that the proposed regulations violate the ESA. Now, the Department of Interior (Department), by failing to address basic, reasonably foreseeable impacts of the proposed regulations and concluding that the proposed regulations will have no environmental impacts whatsoever, also has violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4232 et seq.

At the outset, the Attorney General notes that, according to newspaper accounts, the Department received over 300,000 public comments on the proposed regulations by the October 14, 2008 deadline. According to these news reports, the Department “reviewed” the 300,000-plus public comments in only three days, literally allowing only minutes of time to review and respond to the each comment, including detailed evaluations of the proposed regulations such as the Attorney General’s 17-page letter. See, e.g., Dina Cappiello, Associated Press, Wednesday, October 22, 2008.

If these reports are accurate, it appears that the Department is flouting the public review process and has already predetermined the result. The Department, almost certainly, will issue a Finding of No Significant Impact, will not complete an Environmental Impact Statement (EIS), and will adopt the regulations in their current form, based on a truncated public review and comment period that borders on the absurd. As for the EA, the Department now provides a mere ten days for public review and comment. Providing ten days for public review and comment on an issue of this importance and complexity reflects a fundamental disregard for meaningful scientific and public review and government process. The three day review of hundreds of thousands of public comments received on the proposed regulations and the ten day period now provided for comments on the EA is a cynical attempt to limit public review of a decision apparently already reached by an agency plainly disinterested in any meaningful public discourse on this issue.

What follows are the Attorney General’s specific comments on the EA, severely limited by the inadequate time for review. As a result our comments are neither fully developed nor exhaustive.

I. The EA’s Analysis and Conclusions Are Contrary to NEPA and Are Therefore Unlawful

NEPA has a two-fold purpose. First, NEPA is designed to ensure federal agencies “will have available, and will carefully consider, detailed information concerning significant environmental impacts” of their proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Second, NEPA “also guarantees that the relevant information will be made available to the larger [public] audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Id.; see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989) (NEPA focuses both “Government and public attention on the environmental effects of proposed agency action”). Accordingly, NEPA requires a federal agency “to the fullest extent possible,” to prepare “a detailed statement on . . . the environmental impact” of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C)(i).

“A threshold question in a NEPA case is whether a proposed project will ‘significantly affect’ the environment, thereby triggering the requirement for an EIS.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998). An agency may elect to prepare an EA “[a]s a preliminary step, . . . to decide whether the environmental impact of a proposed action is significant enough to warrant preparation of an EIS.” Id., citing 40 C.F.R. § 1508.9(a). An EA must “include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(b). In so doing, an EA must “provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). “Because the very important decision whether to prepare an EIS is based solely on the EA, the EA is fundamental to the decision-making process.” Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000).

If “substantial questions are raised” as to whether a proposed federal agency action “may have a significant effect” on the environment, then the agency must prepare an EIS to evaluate this effect. Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir. 2006); see also Blue Mts. Biodiversity Project, 161 F.3d at 1212. “This is a low standard.” Klamath Siskiyou Wildlands Ctr., 468 F.3d at 562. Thus, in challenging a federal agency’s decision not to prepare an EIS, a “plaintiff need not show that significant effects will in fact occur,” rather; a plaintiff need only raise “substantial questions whether a project may have a significant effect.” Id., emphasis in original.

An agency’s decision not to prepare an EIS is reviewed under the arbitrary and capricious standard of review. Blue Mts. Biodiversity Project, 161 F.3d at 1211. Under this standard of review, such decision will be found arbitrary and capricious if the agency has failed to “take a hard look at the environmental consequences” of its action and the agency’s analysis is not “based on a consideration of the relevant factors.” Metcalf, 214 F.3d at 1141. “[T]he comprehensive ‘hard look’ . . . must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Id. at 1142.

In addition, “[a]n agency’s decision not to prepare an EIS will be considered unreasonable,” and therefore arbitrary and capricious, “if the agency fails to supply a convincing statement of reasons why potential effects are insignificant.” Blue Mts. Biodiversity Project, 161 F.3d at 1211, quoting Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir. 1988). “The statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.” Id. at 1212.

Here, for the reasons described below, the analysis and conclusions in the Services’ EA on the proposed regulations are not objective, reasonable or convincing and do not appear to be made in good faith. Instead, the EA is the epitome of “form over substance” and is plainly a “subterfuge designed to rationalize a decision already made.” Metcalf, 214 F.3d at 1142.

A. The EA Does Not Take The Requisite “Hard Look” at the Proposed Rules’ Environmental Impacts

The Services’ EA purports to “examine whether the proposed regulatory changes will have any direct, indirect, or cumulative impacts on the quality of the human environment.” EA at 13. However, the document lacks any analysis whatsoever of the impacts associated with the proposed rule. Instead, the EA concludes, without supporting evidence or analysis, that the proposed rule will have no environmental effects. See e.g., id. at 16-17. Without exception, each of the sections of the EA concludes that the proposed changes “will not result in any significant environmental consequences.” Id. at 16, 18, 20, 23. Similarly, the EA makes the bold statement that “while some may believe that one or more of the proposed regulatory changes will somehow result in substantive changes in the level of species protection, the Services do not believe this is the case.” Id. at 13. Such conclusions, without any evidentiary support, do not satisfy NEPA. Oregon Natural Res. Council v. United States Bureau of Land Mgmt., 470 F.3d 818, 823 (9th Cir. 2006) (holding that conclusory statements are insufficient to show that agency has taken a hard look at the action’s effects); Blue Mts. Biodiversity Project, 161 F.3d at 1214 (EA must contain data and references to material in support of its conclusions).

B. The Proposed Regulations Will Have Numerous Potentially Significant Environmental Impacts on Species and Habitat That Require Further Analysis in An EIS

In evaluating the “significance” of an impact, for purposes of determining whether an EIS is required, federal agencies must consider, inter alia: (1) “[t]he degree to which the effects . . . are likely to be highly controversial”; (2) “[t]he degree to which the possible effects . . . are highly uncertain or involve unique or unknown risks”; (3) “[t]he degree to which the action may establish a precedent for actions with significant effects or represents a decision in principle about a future consideration”; (4) whether the action may result in significant cumulative effects; and (5) “[t]he degree to which the action may adversely affect an endangered or threatened species or its critical habitat.” 40 C.F.R. § 1508.27(b).

The proposed regulations meet all of these criteria. Specifically: (1) the proposed regulations are highly controversial because they are the most significant substantive changes to the federal ESA’s implementing regulations in over 20 years, and they received over 300,000 public comments; (2) in limiting the number and extent of section 7 consultations under the federal ESA, particularly with respect to federal actions with significant greenhouse gas emissions, the proposed regulations will involve unique or unknown risks to listed species and their habitat; (3) the proposed regulations will establish a negative precedent for evaluating and mitigating the adverse effects of federal agency actions under the federal ESA; (4) the regulations will result in significant cumulative effects on listed species and their habitat; and (5) the regulations will adversely affect listed species and designated critical habitat.

Indeed, the amount of public controversy concerning the nature and effect of the proposed regulations alone requires preparation of an EIS. A federal action is considered controversial where, as here, “a substantial dispute exists as to [its] size, nature or effect.” Foundation for N. American Wild Sheep v. U.S. Dept. of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982). In such circumstances, an EIS is required. See id. (finding substantial dispute and requiring EIS where, as here, the agency “received numerous responses from conservationists, biologists and other knowledgeable individuals, all highly critical of the EA and all disputing [its] conclusion” of no significant effect). Therefore, the conclusion is inescapable that the Services must prepare an EIS.

Below the Attorney General provides some illustrative specific examples of the types of significant direct, indirect and cumulative environmental effects the proposed regulations are likely to have.

1. Significant Environmental Impact of the Proposed Rules’ Exemption of Certain Types of Federal Actions From Section 7

The proposed regulations would exempt from ESA section 7 federal agency actions the direct and indirect effects of which “are not anticipated to result in take” and which meet one or more of several other specified criteria. Specifically, consultation is not required if the federal action agency determines that: (1) the action will have “no effect on a listed species or critical habitat”; (2) the action is “an insignificant contributor to any effects on a listed species or critical habitat”; or (3) if the effects of the action on listed species or critical habitat “are not capable of being meaningfully identified or detected,” are “wholly beneficial” or are “such that the potential risk of jeopardy to the listed species or adverse modification or destruction of critical habitat is remote.” Proposed 50 C.F.R. § 403.03(b). Further, the rules propose the narrowly define the types of indirect and cumulative effects that a federal agency must consider when determining whether an action meets the above criteria. See Proposed 50 C.F.R. § 402.02, discussed further in section II.B.3 below.

Under ESA section 7(a)(2), each federal agency “shall insure” that “any action” that is authorized, funded or otherwise carried out by that agency is not likely to jeopardize listed species or result in the adverse modification or destruction of designated critical habitat. 16 U.S.C. § 1536(a)(2). As we discussed in our comments on the proposed regulations, under the plain language of the statute, the Fish and Wildlife Service and the National Marine Fisheries Service do not have authority to exempt certain types of federal agency actions from section 7 wholesale. It is not for the Services to determine that there is “little value” in requiring consultation on certain types of federal agency actions because such consultation is “unnecessary” or not “an efficient use of limited resources.” 73 FR 47871. Section 7 “applies to every discretionary agency action regardless of the expense or burden its application might impose.” National Assn. of Homebuilders v. Defenders of Wildlife, 127 S.Ct. 2518, 2537 (2005), emphasis added. In other words, “section 7 consultation is not optional.” National Wildlife Fedn. v. NMFS, 524 F.3d 917, 929 (9th Cir. 2008).

Despite these section 7 requirements, the proposed regulations create consultation “options” which, in certain circumstances, allow federal agencies altogether to avoid consulting with the Services regarding the effects of their actions on listed species and critical habitat. That change has potentially profound environmental consequences that must be evaluated in an EIS. Indeed, the EA admits that this new provision is likely to reduce the number of consultations that will occur, but dismisses this potential effect by stating that “there is no basis to quantify the scope of that reduction” and that this will allow the Services “to better focus their limited resources.” EA at 19-20. These are not sufficient reasons for failing to evaluate this clearly significant effect. The courts have warned that “general statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Blue Mts. Biodiversity Project, 161 F.3d at 1213, quoting Neighbors of Cuddy Mtn. v. U.S. Forest Service, 137 F.3d 1372, 1380 (9th Cir. 1998). Here, the EA provides no such justification for its failure to provide more definitive information.

Furthermore, the proposed regulations would exempt some federal actions that may result in jeopardy to listed species or adverse modification or destruction of critical habitat, also contrary to the substantive requirements of section 7. In determining whether an agency action would be exempt from consultation, the proposed regulations would require federal agencies to consider only the direct and indirect effects of their actions (as newly, narrowly defined), but not the cumulative effects, and to find only that the actions are not “anticipated” to result in take. Also, a project would be exempt if a federal agency finds that the risk of jeopardy – not simply the risk of adverse effects – is “remote.”

These vague and imprecise standards, even if properly applied, could exempt projects that in fact will result in “take,” which in turn could jeopardize listed species and/or adversely modify or destroy critical habitat, particularly for highly imperiled species for which any additional, unmitigated impacts are intolerable. (The EA’s analysis inappropriately assumes, however, that inexpert federal agencies will properly interpret and apply these vague exemption criteria absent the oversight of Service scientists. If the criteria are not properly applied – a very likely occurrence – even greater adverse impacts to listed species and critical habitat will result. See further discussion in section II.B.2 below.) These are real, concrete, potential environmental impacts, and they must be addressed in a full-scale EIS.

In addition, the proposed regulations could exempt projects that, although potentially not resulting in take, nevertheless may result in adverse modification or destruction of critical habitat. Because critical habitat must include areas that are not currently occupied by the species but which are essential to the species’ recovery, actions that might not take listed species still could result in the adverse modification or destruction of their critical habitat. See 16 U.S.C. §§ 1532(3), (5)(A); Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059, 1069-70. Again, these potential impacts are significant, and under NEPA, require review in an EIS.

Perhaps more importantly, under the Services’ proposed approach of exempting projects with supposedly “insignificant,” “remote” or difficult to determine effects, “a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills that the ESA seeks to prevent.” National Wildlife Fedn, 524 F.3d at 930. These potential impacts also must be evaluated in an EIS.
2. Significant Environmental Impact of the Proposed Rules’ Elimination of Sound Science and Threshold Service Review

New section 402.03(b) also would allow federal agencies (along with any private project proponents) unilaterally to determine, without the Services’ review or concurrence, whether their actions are exempt from consultation under this provision. Such determinations could be made without any site-specific analysis or documentation, and without any expert biological review and input, even if listed species and critical habitat may be present in the action area. Thus, the consequence of the proposed rules is to eliminate the critical scientific review and oversight that exists under current law and to allow self-consultation by federal agency project proponents. This action – the removal of scientific oversight from the process of evaluating the impact of federal agency actions on threatened and endangered species and their habitat – by definition may have a significant environmental impact that requires full evaluation in an EIS.

Despite the Services’ stated belief that “federal action agencies will err on the side of caution” in making the exemption determinations in section 402.03(b) and “have now had decades of experience with section 7' that will lead them to make the proper decisions (73 FR 47871), the reality is that, absent the Services’ expert review and input, federal action agencies are not qualified to determine whether a project would result in “no take” or would meet the other criteria of proposed section 402.03(b). Only the Services have qualified personnel with the relevant biological expertise to make these determinations. This removal of expert scientific agency oversight from the consultation process will have significant environmental effects that must be evaluated in an EIS.

In addition, contrary to the statements in the Federal Register notice and EA, as the project proponents, federal action agencies are interested parties that will have every incentive to find that their activities satisfy the criteria of proposed section 402.03(b). Unlike the ESA, the statutory missions of federal agencies do not normally place first priority on protecting imperiled species and their habitat, but rather direct agencies to undertake a host of other functions that may adversely affect species and habitat. See, e.g., National Forest Management Act, Federal Land and Policy Management Act, Federal Power Act; see also Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1235 (2008) (Noonan, J. concurring) (U.S. Forest Service was motivated to approve timber sales on national forest lands in order to generate increased agency funds). The ESA, by contrast, reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 185 1978). By allowing federal action agencies unilaterally to determine whether an action is exempt from section 7 absent a requirement for site-specific analysis and documentation and the Service’s review and concurrence, the proposed regulations would have precisely the opposite effect.

Moreover, the proposed rules provide no objective, scientific criteria or standards for a federal agency to determine whether its action meets the vague and open-ended criteria of proposed 50 C.F.R. section 403.03(b). The rules also do not contain any requirement for federal agencies to document their exemption determinations, so it will be impossible for the Services or the public to determine whether, when and how these determinations are being made and if such determinations are appropriate. Projects will simply proceed based on federal agencies’ undisclosed, internal decisions that the projects are exempt from section 7. As a result, the Services’ scientists and the public will be foreclosed from the process, and the regulations will shield from review potentially major impacts on listed species and critical habitat. Even assuming that proper application of the criteria “could never amount to an adverse impact to listed species” (73 FR 47871) (which, as we have pointed out above, is not the case), it necessarily follows that improper application of the criteria, without site-specific review and documentation and the Service’s written concurrence, could well result in serious adverse effects on listed species and critical habitat, and could even lead to the extinction of some highly imperiled species. These environmental consequences must be evaluated in an EIS.

3. Significant Environmental Impact of the Proposed Rules’ Provision for Arbitrary Early Termination of Informal Consultation

For those federal agency actions and effects that would remain subject to the section 7 consultation requirements, the proposed regulations would allow federal action agencies to terminate the informal consultation process prematurely and arbitrarily if the Service has not provided a written concurrence with a federal agency’s determination that its action is “not likely to adversely affect” listed species or critical habitat within sixty days of the date on which the federal agency requests such a determination. Proposed 50 C.F.R. §§ 402.13(b), 402.14(b)(1). The agency may then proceed with the project without further review. However, there are myriad reasons why the Services may not be able to provide a written determination within sixty days. Such failure says nothing about the lack of environmental effects of an agency action on species and habitat. Indeed, allowing a project to proceed under such circumstances potentially could result in the extirpation of an entire species. Surely, this potential alone requires evaluation in an EIS.

The EA itself acknowledges that some informal consultations will be terminated early under this new provision. EA at 22. The EA, however, dismisses this potentially significant effect by erroneously assuming that federal agencies will only utilize the informal consultation process for actions that are not likely to “take” listed species. Id. at 23-24. There is no legal or factual basis for this assumption, as the informal consultation process currently is used for many types of actions with a broad range of effects and is not limited to federal actions that will not result in take. The proposed regulations also contain no such limitation. The EA implicitly acknowledges the possibility that federal agencies could and might utilize informal consultation for projects that will or may result in take by stating that “an action agency is unlikely to initiate a request for informal consultation if it appears that the project might result in take.” Id. at 24.

Moreover, even if it is true that federal agencies are only likely to utilize the informal consultation procedures for actions that in fact are not likely to “take” a listed species (and therefore which are not likely to cause jeopardy), agencies still must consider whether their actions may adversely modify or destroy critical habitat. For reasons stated in section II.B.1 above, adverse modification of critical habitat can occur in some circumstances even absent any take. Such effects must be analyzed in an EIS.

4. Significant Environmental Impact of the Proposed Rules’ Limitations on the Definition of Indirect and Cumulative Effects

The proposed regulations also would limit the type and extent of the indirect and cumulative effects that could be considered when federal action agencies or the Services are: (1) determining whether a federal agency action is exempt from section 7 under new section 402.03(b); (2) preparing biological assessments; (3) determining whether an action is not likely to adversely affect listed species or critical habitat during informal consultation; (4) preparing biological opinions during formal consultation; (5) determining whether to reinitiate consultation; and (6) undertaking other consultation activities. 50 C.F.R. §§ 402.12, 402.13, 402.14, 402.16.

Specifically, federal agencies and the Services would only need to consider indirect effects for which the action is the “essential cause” and that are “reasonably certain to occur” based on “clear and substantial information.” Proposed 50 C.F.R. § 402.02. The Federal Register notice states that “our intent is to clarify that there must be a close causal connection between the action under consultation and the effect that is being evaluated. . . . [I]f an effect would occur regardless of the action, then it is not appropriate to require the action agency to consider it an effect of the action.” 73 FR 47870. The requirement that effects be “reasonably certain to occur” based on “clear and substantial information” is intended “to make clear that the effect cannot be just speculative and that it must be more than just likely to occur.” Id. In addition, “cumulative effects” would be defined to exclude “future Federal activities that are physically located within the action area” of the agency action at issue. Proposed 50 C.F.R. § 402.02.

Section 7 of the ESA directs federal agencies to “insure,” without limitation, that each federal agency action is not likely to jeopardize any listed species or adversely modify or destroy critical habitat. 16 U.S.C. § 1536(a)(2). This substantive statutory mandate simply cannot be met if federal action agencies and the Services need only consider the limited types of indirect and cumulative project effects as proposed in these regulations and must document the occurrence of these effects with “clear and substantial information.” Additionally, the ESA itself directs the Services to consider, without limitation, “how the agency action affects the species or its critical habitat.” 16 U.S.C. § 1536(b)(3)(A). Because the proposed regulations will limit the type, scope and extent of the effects that must be considered and mitigated during the section 7 consultation process, contrary to the broad statutory mandate of the ESA, these environmental effects must be evaluated in an EIS.

The EA claims that the regulations’ proposed limitations on the types of effects that could be considered under section 7 would not have any significant environmental effects because these changes would simply codify the Services’ existing policy and practice. EA at 17-18. This claim simply is not credible. Even if the claim were true (which we believe it is not), regulations have the force of law, while policy and practice do not. Thus, if adopted, the proposed regulations would implement a significant change in existing law which must be analyzed in an EIS.

5. Significant Environmental Impact of the Proposed Rules’ Elimination of the Requirement to Consider the Effects of Increased Greenhouse Gas Emissions and Other Effects on Species and Habitat

Current scientific information has established that global warming already is having serious effects on species’ survival and recovery and that these effects are only likely to increase substantially in the future. The proposed rules would eliminate the consultation and concurrence requirements for projects whose effects are supposedly “an insignificant contributor” to adverse impacts on listed species and habitat, are “incapable of being meaningfully evaluated” or pose only a “remote” risk. Thus, federal agencies would be able to simply sweep the effects of increased greenhouse gas emissions from their projects – as well as a host of other types of project effects – off the table entirely by concluding that such effects are “insignificant,” “incapable of being meaningfully evaluated” or pose only a “remote” risk. See 73 FR 47870. This could be done absent site-specific analysis, documentation and scientific review and oversight. As such, the proposed new exemptions could have devastating and irreversible effects on imperiled species and habitat. As the science of global warming and its impact on species and habitat continues to develop, it is essential that federal action agencies not be permitted to foreclose input from the federal biological agencies. The review of these expert agencies will bring the most current knowledge of these issues to bear on critical projects.

Similarly, the proposed requirements that the federal agency action being evaluated must be an “essential” cause of the effect, and that the effect must be reasonably certain to occur based on “clear and substantial information,” are both specifically intended to eliminate greenhouse gas emissions (as well as other effects) from the range of effects that could be considered under section 7 of the ESA. See 73 FR 47870. It is true that no single source of greenhouse gas emissions can be deemed the cause of the global warming or its effects on any given species. This does not mean, however, that the effects of large projects which indirectly or cumulatively contribute to or exacerbate global warming and its adverse impacts on species and habitat should not be properly evaluated and avoided or mitigated.

Carving these impacts out of the ESA through the proposed regulations could have a major impact on species’ survival. Unequivocally, these are potentially significant effects that must be evaluated in an EIS.

6. Significant Environmental Impact of the Proposed Rules’ Segmentation of the Analysis of Federal Agency Actions

Finally, the proposed regulations would allow federal action agencies and the Services to segment or piecemeal the analysis of federal agency actions, in three respects. First, the regulations would require consultation on only those effects that do not meet the consultation exemption criteria of proposed section 403.03(b). Proposed 50 C.F.R. § 402.03(c). Second, the federal action agency may terminate consultation as to “a number of similar actions, an agency program, or a segment of a comprehensive plan” if the agency determines, with the Service’s concurrence, that the activity is not likely to adversely affect any listed species or critical habitat. Proposed 50 C.F.R. § 402.13(a). Third, the proposed rules would only require consultation as to those project effects which meet the new, limited definitions of “effects” and “cumulative effects.” Proposed 50 C.F.R. § 402.02.

Federal action agencies thus could attempt to break large projects up into their component parts, each with supposedly “marginal” effects on listed species and critical habitat, in an effort to minimize the need to fully examine and mitigate for the effects of their actions on listed species and critical habitat. 73 FR 47870. Indeed, the example discussed in the Federal Register notice appears to suggest that segmentation of the analysis of a project’s effects would be entirely appropriate under the new rules. See id. (explaining why certain effects of a proposed pipeline would not need to be evaluated). This is yet another potentially significant impact of the regulations that must be evaluated in an EIS.

C. The EA Fails to Analyze Any Cumulative Impacts of the Proposed Rules

One of the most glaring additional flaws in the EA is that it does not contain any analysis of cumulative impacts. An agency may not limit its analysis to the impacts of the project, viewed in isolation. NEPA requires agencies to evaluate whether an action’s impacts, though individually limited, are cumulatively significant. 40 C.F.R. §§ 1508.27(b)(7). A cumulative impact is defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. Where it is reasonable to anticipate a cumulatively significant impact on the environment, an agency must prepare an EIS to examine that impact. 40 C.F.R. §§ 1508.27(b)(7); Blue Mts. Biodiversity Project, 161 F.3d at 1212.

Here, it is reasonable to anticipate that the proposed rules will have a significant cumulative impact, for several reasons. First, the rules would eliminate consideration of greenhouse gas emissions and other types of project effects from the section 7 consultation process. Second, by eliminating or truncating the section 7 consultation process for many federal actions, and significantly reducing the degree of scientific oversight, analysis and mitigation in that process, the proposed rules are likely to have significant cumulative impacts on most listed species and designated critical habitats.

While the EA recognizes that NEPA’s requirement to analyze cumulative impacts is broader than the ESA’s “cumulative effects” requirement, EA at 15, the EA’s cumulative impacts discussion inexplicably ends without any analysis. “This conclusory presentation does not offer any more than the kind of general statements about possible effects and some risk which we have held to be insufficient to constitute a hard look.” ONRC v. BLM, 470 F.3d at 823; Native Ecosystems Council v. Dombeck, 304 F.3d 886, 895-896 (9th Cir. 2002) (EA held deficient for failing to include a cumulative impact analysis). Indeed, “[t]he impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1217 (9th Cir. 2008) (holding EA’s cumulative climate change analysis inadequate and remanding to the agency to address this deficiency). “[T]he fact that climate change is largely a global phenomenon that includes actions that are outside of the agency’s control does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming.” Id., emphasis in original, internal ellipses, citations and quotation marks omitted. The EA therefore, fails to comply with NEPA.

D. The EA Fails to Analyze a Reasonable Range of Alternatives

Finally, the EA is inadequate because it fails to “rigorously explore and objectively evaluate all reasonable alternatives.” Ctr. for Biological Diversity, 538 F.3d at 1217, quoting 40 C.F.R. § 1502.14(a). “Although an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS, NEPA requires that alternatives be given full and meaningful consideration, whether the agency prepares an EA or EIS.” Id., internal quotation marks and citations omitted. As in Center for Biological Diversity, the EA here considers an unreasonably narrow range of alternatives to the proposed regulations. Id. at 1218. The EA considers only the proposed action and no action alternatives, and one additional regulatory alternative “with an additional role by the Services.” EA at 5-6, 10. This is two fewer alternatives than analyzed in the EA invalidated in the Center for Biological Diversity case. The EA thus is invalid for this additional reason as well.

II. Conclusion

Despite the Department’s contentions and protestations that the proposed regulations are modest in breadth, scope, and impact, in fact, they could have profound impact on the species and habitat that the ESA is designed to protect. We have identified a few of those potential impacts in our comments. The proposed regulations and their potential impacts, as reflected in the huge public response, even in the short time frame for public comment provided by the Department, are of great public interest and are highly controversial. The large array of potentially significant environmental impacts resulting from implementation of the proposed regulations along with the substantial public controversy require a full EIS. NEPA mandates no less.

Thank you for your consideration of these comments.

Sincerely,

KEN ALEX
Senior Assistant Attorney General
TARA L. MUELLER
Deputy Attorney General

SAN FRANCISCO – California Attorney General Edmund G. Brown Jr. today filed a motion in federal court demanding public disclosure of Federal Receiver J. Clark Kelso’s $8 billion prison construction plan.

“If public money is being spent, the public has the right to know how it’s going to be spent,” said Attorney General Brown. “To date, the proposed $8 billion medical upgrade for California’s prisons has not been shared with the public. The people of California are entitled to see for themselves whether or not the plan meets constitutional minimums or instead goes way beyond what the Constitution requires under the Eighth Amendment, prohibiting cruel and unusual punishment.”

The Receiver’s plan for prison facility construction is a 917-page document containing information on the layout, design and amenities of the seven prison healthcare facilities the Receiver seeks to build. The Attorney General contends that only 23 pages of the 917-page document fall within the terms of the protective secrecy order granted by the court earlier in the proceedings.

The court’s protective order, by its terms, only protects confidential medical records or information that may threaten the safety or security of prison personnel. Specifically, the protective order covers “Department of Corrections’ records that identify any inmate or parolee or that are designated by defendants as threatening prison safety and/or security if disclosed without protective conditions, and which are produced by defendants in informal and/or formal discover in this action.”

The Receiver’s 917-page plan forms the basis for his request to seize $8 billion from the State Treasury to build prison facilities. Attorney General Brown’s motion honors the California Constitutional principle that government is accountable to the people. Article I, Section 3 (b) of the California Constitution declares “The people have the right of access to information concerning the conduct of the people’s business…” As the Supreme Court has recognized, “informed public opinion is the most potent of all restraints upon misgovernment,” which is why, as Justice Brandeis so famously said, “Sunlight is said to be the best of disinfectants.”

The Attorney General’s motion is attached.

SAN FRANCISCO– California Attorney General Edmund G. Brown Jr. today filed a motion in federal court to oppose Federal Receiver Clark Kelso’s motion to hold California Governor Arnold Schwarzenegger and Controller John Chiang in contempt for failing to release $8 billion in state funds for a massive prison healthcare facilities construction project.

“Last year, the Legislature approved $7.4 billion in prison construction funds. That money hasn’t even been spent yet, and the Receiver wants $8 billion more,” said Attorney General Brown. “We simply can’t afford to keep throwing billions of dollars of public money into our state correctional system under the veil of secrecy. Once we spend the billions already allocated to improving healthcare in our prisons, then we can determine if more is needed.”

In August, Federal Prison Receiver Clark Kelso filed a motion compelling Governor Arnold Schwarzenegger and Controller John Chiang to hand over an additional $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 argues that the federal court does not have the legal power to mandate state prison construction and there is no evidence in the record justifying the massive sums sought by the Receiver.

The Prison Litigation Reform Act (PLRA), approved by Congress in 1996, makes clear that a court may not force a state to pay for prison construction without its consent. The Receiver’s $8 billion demand includes construction of new prison healthcare facilities containing 10,000 new beds for prisoners with acute and long-term health needs. While California has acknowledged the need to provide constitutionally adequate healthcare, the Receiver has not presented convincing evidence that his wide-ranging plan is “necessary and the least-intrusive” plan required by the U.S. Constitution.

The Receiver has refused to disclose his plan to the public, but according to the Receiver’s motion, “the Facility Improvement project will touch virtually every prison in the state” and “will result in the construction of 7 million square feet of new medical facilities—the equivalent of 70 Wal-Mart stores…”

The $8 billion demand is an enormous increase in state spending for prisons. California built 22 new prisons in 23 years, and prison spending topped almost $10 billion in the 2007-2008 state budget. Last year, the California Legislature authorized $7.4 billion for prison construction and has instituted numerous improvements and reforms to the prison healthcare system. The Attorney General’s motion argues that these improvements should be assessed before allocating more money.

The state has made progress on prison healthcare reform. One of the fundamental problems in fulfilling the state’s constitutional healthcare mandate was the lack of qualified medical staff to treat the inmates. The eighth quarterly report of the Receiver shows that 86% of nursing positions and 81% of physician positions have now been filled. This has significantly improved the level of care provided to prisoners. The state has also implemented upgrades and improvements to its appointment-tracking, medication delivery and laboratory services.

SACRAMENTO--California Attorney General Edmund G. Brown Jr. today released guidelines that, for the first time since California’s Proposition 215 was passed in 1996, clarify the state’s laws governing medical marijuana and provide clear guidelines for patients and law enforcement to ensure that medical marijuana is not diverted to illicit markets.

“California voters approved an initiative legalizing medical marijuana, not street drugs. Marijuana intended for medicinal use should not be sold to non-patients or on illicit markets,” Attorney General Brown said. “These guidelines will help law enforcement agencies perform their duties in accordance with California law and help patients understand their rights under Proposition 215.”

This landmark document marks the first attempt by a state agency to define the types of organizations that are legally permitted to dispense marijuana. Brown’s guidelines affirm the legality of medical marijuana collectives and cooperatives, but make clear that such entities cannot be operated for profit, may not purchase marijuana from unlawful sources and must have a defined organizational structure that includes detailed records proving that users are legitimate patients.

“We welcome the Attorney General’s leadership and expect that compliance with these guidelines will result in fewer unnecessary arrests, citations and seizures of medicine from qualified patients and their primary caregivers,” said Americans for Safe Access Attorney Joe Elford. “No one benefits from confusion over the law. These guidelines will help patients and law enforcement better understand California’s medical marijuana laws.”

In 1996, California voters approved Proposition 215, an initiative that exempted patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana. In addition, The Medical Marijuana Program Act (MMA), enacted by the Legislature in 2004, intended to further clarify lawful medical marijuana practices by establishing a voluntary statewide identification card system, specific limits on the amount of medical marijuana each cardholder could possess, and rules for the cultivation of medical marijuana by collectives and cooperatives. According to Americans for Safe Access, California has more than 200,000 doctor-qualified medial cannabis users.

Several law enforcement agencies have requested that the Attorney General issue guidelines regarding the lawful possession, sale and cultivation of marijuana for medicinal purposes. These law enforcement agencies believe that individuals and cartels, under the cover of Proposition 215, have expanded illegal cultivation and sales of marijuana, which has led to an increase in drug-related violent crime. Most researchers agree that the U.S. marijuana crop has seen a sharp increase in the past decade. A report, “Marijuana Production in the United States” by drug-policy researcher Jon Gettman, estimated that in 2006, more than 21 million pot plants were grown in California at a street value of up to $14 billion.

Fresno Police Chief Jerry Dyer, President of the California Police Chiefs Association, praised Brown for establishing these guidelines. 'Since Proposition 215 was passed, the laws surrounding the use, possession and distribution of medical marijuana became confusing at best. These newly established guidelines are an essential tool for law enforcement and provide the parameters needed for consistent statewide regulation and enforcement.'

The guidelines encourage patients to participate in the California Department of Public Health’s registration program to obtain a medical marijuana identification card. The identification card protects the holder from arrest for marijuana possession and is one of the best ways to ensure the non-diversion of medical marijuana. Collectives and cooperatives are advised to keep files on their patients with documented verification of their qualified status.

A copy of the Guidelines is attached.

LOS ANGELES – California Attorney General Edmund G. Brown Jr. today announced a raid on an illegal marijuana operation that used a medical marijuana dispensary as a front for massive illegal drug sales. On Friday, August 22, special agents from the California’s Bureau of Narcotic Enforcement (BNE) arrested two men in Los Angeles for the illegal possession, transportation and sale of marijuana in connection with a marijuana dispensary, Today’s Healthcare, in Northridge.

Nathan Holtz, age 37, is the suspected middleman between northern California marijuana growers and the Today’s Healthcare marijuana dispensary in southern California. Louis Godman, owner of the dispensary, admitted he conducted a profitable business with the majority of his customers being between the ages of 18 and 29 years-old. Under the Attorney General’s medical marijuana guidelines, also released today, medical marijuana collectives or cooperatives should operate as not-for-profit only, serving qualified patients who’ve been examined by a doctor.

“This criminal enterprise bears no resemblance to the purposes of Proposition 215, which authorized the use of medical marijuana for seriously sick patients,” said Attorney General Brown. “Today’s Healthcare is a large-scale, for-profit, commercial business. This deceptively named drug ring is reaping huge profits and flaunting the state’s laws that allow qualified patients to use marijuana for medicinal purposes.”

Over the course of the past six months, the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT), led by the BNE, conducted an investigation into the illegal marijuana trafficking of Holtz and Godman. Over the weekend, BNE special agents arrested both subjects, who were caught red-handed buying and selling three pounds of high-grade marijuana with a street value of $18,000.00. During the course of the arrest, it was found that Holtz had approximately three additional pounds of marijuana in his vehicle, and Godman had an additional $9,000.00 in cash.

BNE agents served six additional search warrants at residences in Los Angeles and at the marijuana dispensary, Today’s Healthcare, in Northridge. At the residences, agents uncovered sophisticated indoor growing operations, including complex marijuana growing equipment, such as lighting, timers, and a power system allowing them to divert electrical power from the Los Angeles Water and Power Department to avoid detection of their operations. In total, agents seized more than 1,100 high-grade marijuana plants with a street value of more than $6.6 million. At Today’s Healthcare, agents seized two boxes of client records showing the average age of its clients to be 18 to 29 years-old.

LA IMPACT, which is led by BNE, is a cooperative effort of federal, state and municipal law enforcement agencies in Los Angeles County targeting major narcotic trafficking organizations operating in the region.

From The Wall Street Journal
August 11, 2008
Opinion Journal

Two weeks ago The Wall Street Journal kicked off a debate on how best to allocate scarce resources to solve the world's problems. Bjorn Lomborg offered a summary of the latest findings from his Copenhagen Consensus project, where he has enlisted some of the world's top economists to address the issue. Now we're offering views on the subject from top political and business leaders. How would you spend $10 billion of American resources (either directly or through regulation) over the next four years to help improve the state of the world?

Saving $10 Billion With Efficiency
By Jerry Brown
August 11, 2008

The cost of energy in the United States, on an annual basis, has now soared beyond $1 trillion. Our massive purchases of foreign oil represent perhaps the greatest transfer of wealth from one people to another in all human history. And, paradoxically, this wealth transfer is from a far more technologically advanced nation to poorer countries -- some unstable and hostile -- whose only claim is the oil that lies under their ground. Wake up America! We must stop the hemorrhaging of our national treasure, and we need to do it now.

I propose that we take the $10 billion and invest it in curbing our energy appetite through efficiency programs and incentives. The efficiency I envision would allow us to enhance our quality of life, but do so in ways that reduce the huge quantities of oil, gas and coal that we now consume.

California has kept its per capita electrical consumption flat for the past 25 years -- in significant part through appliance and buildings standards and incentives to adopt ways that get more work out of less energy. I am not talking about some collective hair shirt, but rather about a wide variety of new technologies and designs.

The world is facing a triple threat of unprecedented dimensions: First, the loss of cheap and easily discovered oil; second, explosive energy demand from China, India and other emerging countries as they rapidly improve their standard of living; and third, the climate disruptions caused by CO2 and other greenhouse gases. None of the three will go away. In fact, each will get progressively worse unless we take decisive action, without delay. America must take the lead in dealing with global energy and climate challenges, and at the same time vastly strengthen its own economy and security.

For too long, the federal government has been slow and unimaginative in setting efficiency standards for appliances and equipment, and in many cases it has set no standard at all. We know from the example of California's energy commission that huge financial savings can be generated through efficiency standards consistent with the best available technology. Billions of dollars and large quantities of fossil fuel could be saved if the federal government would set tough but practical standards for lighting, refrigerators, stoves, computers and other products and pieces of equipment.

Congress provided the legal authority to do so in the 2007 energy bill, but the Department of Energy currently lacks the trained personnel and engineers needed to create such a sophisticated regulatory framework. This will require additional funding -- perhaps as much as several hundred million a year. The next president should engage the appliance and equipment manufacturers and provide the kind of leadership that has so far been totally lacking.

Next, the federal government should establish a financial grant program, encouraging the states to craft efficiency standards for new buildings. Again, the example of California is instructive. Its detailed and regional building standards have saved Californians tens of billions of dollars in lower energy bills. A significant part of the proposed $10 billion could be spent on this type of effort. Each state would be asked to craft their own rules in response to the differing conditions found in various regions of the country.

A third type of program could be modeled on California's current system of rebates, tax credits and other incentives that encourage businesses and consumers to adopt efficiency measures that exceed the mandatory standards. This program is financed through the investor-owned utilities and established under the authority of the state utilities commission.

The federal government could provide a matching program for each state's efforts consistent with standards that are technically feasible, and that provide an economic return on the investment. In California, all the electric and gas utilities have added conservation investments to their historic practice of dealing with energy shortages only though building new plants.

Just as new sources of energy require vast sums spent on R&D, so do new efficiency technologies. They will emerge only if there is adequate investment in research and development. Some of the $10 billion should go for this. Needless to say, overall investment in both energy and efficiency R&D is pathetically and dangerously underfunded.

While military, medical and pharmaceutical research has steadily grown over the past two decades, R&D to increase our national energy efficiency and provide the full gamut of new fuels and power sources has fallen by 50% in real terms. In the early 1980s, energy companies invested more in R&D than drug companies; today, drug companies invest 10 times as much in R&D as do energy firms. To secure our energy and economic future, America must reverse this shameful neglect. Physicist and University of California professor Dan Kammen estimates that we must increase our level of energy and energy efficiency R&D five to tenfold, spending $15 billion to $30 billion per year to develop new fuels, new sources of energy and more efficient technologies.

America is at a crossroads. Total U.S. financial and nonfinancial debt rose to $44.7 trillion in 2006, from $2.4 trillion in 1974. This does not even count longer-term liabilities such as Social Security and Medicare. Oil and gas are consuming more and more of our national wealth. It is time for our political and business leaders to tap into America's unspent creativity and entrepreneurial genius. Many times $10 billion will be needed. But it can be done. It must be done.

Mr. Brown, a Democrat, is attorney general of California.

SACRAMENTO--In response to today’s Sacramento Superior Court decision to deny a lawsuit challenging the title and summary and ballot label for Proposition 8, California Attorney General Edmund G. Brown Jr. issued the following statement:

“This lawsuit was more about politics than the law. The court properly dismissed it.”

One of the many responsibilities of the attorney general is to prepare a title and summary for initiative measures. For more information visit: http://ag.ca.gov/initiatives/index.php

The court’s order, issued today, is attached.

RIVERSIDE--California Attorney General Edmund G. Brown Jr. and Riverside District Attorney Rod Pacheco today announced a 37-count indictment against Mark Anthony Leggio, James Lloyd Deremiah, and father-son team Nicola Cacucciolo, and Nick Vito Cacucciolo, for exceeding $3,300 Senate and Assembly campaign contribution limits by laundering money through various friends and associates.

“Leggio contributed $50,000 in excess of campaign contribution limits to six candidates for Senate, Assembly and Board of Equalization by filtering money through friends and associates,” Attorney General Brown said. “Today’s charges send a strong message that the state will crack down on those who try to exceed California’s campaign finance limits.”

In November 2006, the Riverside County District Attorney’s Office launched an investigation into possible campaign money laundering, in violation of Government Code Section 84301, in a Riverside County State Assembly race for the 65th District. The timing and pattern of campaign contributions suggested that various individuals were being reimbursed for contributing to Leggio’s candidate of choice, in violation of the Political Reform Act.

“Democracy is the foundation of our society. The process by which we citizens elect our leaders and representatives must be honest and free from all corruption. Money laundering in elections hides a candidate’s true support. When it is of this significant magnitude a fraud is perpetrated on the public,” Riverside District Attorney Rod Pachecho said.

Investigators found that Leggio funneled money through various friends and employees of the Mark Christopher Auto Center in Ontario and Mountain View Chevrolet in Upland. Nicola Cacucciolo and his son Nick Vito Cacucciolo assisted with the illegal campaign donation scheme, as did James Llloyd Deremiah.

The alleged fraud involved contributions to six state campaigns for Senate, Assembly and Board of Equalization in Riverside and San Bernardino Counties. The prosecutor from the Riverside District Attorney’s Office, who launched the original investigation, was granted the status of Deputy Attorney General which allows him to prosecute violations in other counties.

The accusations in today’s indictment include: 11 felony counts of perjury, filing false statements, conspiracy, and 26 misdemeanor violations of campaign contribution limit and reporting laws. The indictment was unsealed in San Bernardino Superior Court and the arraignment is scheduled for July 11, 2008. If convicted of the most serious charges, Leggio faces up to 6 years in state prison and the other defendants face up to 3 years.

The indictment, which was filed under seal on June 11, 2008 and made public today, is attached.

In 20 days, a full California State Grand Jury transcript including all other findings in this case will be made public. Until that transcript is unsealed, no additional details of this case can be released.

For more information, please contact Michael Jeandron at the Riverside County District Attorney’s Office: (916) 955-9215