Legislation

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.

FOR IMMEDIATE RELEASE
January 16, 2009
Contact: Christine Gasparac (916) 324-5500

Brown Joined by Eight States in Seeking to Thwart
Bush Administration Effort to Gut the Endangered Species Act

SAN FRANCISCO – California Attorney General Edmund G. Brown Jr.’s effort to overturn an eleventh hour move by the Bush Administration to gut provisions in the Endangered Species Act received a major boost today when eight states – Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island – signed on to his lawsuit.

“There is broad and deep opposition to the Bush Administration’s effort to gut the Endangered Species Act,” Attorney General Brown said. “It is my hope that the new Obama Administration will take a fresh look at these rules and restore the independent scientific review of projects affecting endangered species, which has been a hallmark of the ESA for 35 years.”

The new regulations, initially proposed by the Departments of the Interior and Commerce in August 2008, largely eliminate a requirement in the Endangered Species Act that mandates scientific review of federal agency decisions that might affect endangered and threatened species and their habitats.

The changes allow the Fish and Wildlife Service to permit mining, logging, and other commercial activities to take place on federal land and other areas subject to federal regulatory control without review or comment from federal wildlife biologists on the environmental effects of such activities on endangered and threatened species and their habitat.

The new regulations are the most significant changes to the Endangered Species Act and its implementing regulations in over 20 years. Now that these regulations have been adopted, many decisions on whether to permit commercial activity on federal land or issue federal permits or licenses will be made at the sole discretion of federal agency project proponents, without input from biological experts at the federal wildlife agencies. Federal project agencies generally lack adequate biological expertise and have incentives to conclude that their projects will not have adverse affects on endangered and threatened species and their habitat.

The changes also eliminate the requirement to consider the effects of greenhouse gas emissions on species and ecosystems from proposed federal projects. Federal agencies now no longer need to consider the possible adverse impacts on species like the polar bear from commercial projects that require federal approval or funding such as highway construction and coal-fired power plants.

The lawsuit, which was filed last December in the U.S. District Court for the Northern District of California, alleges that the Bush Administration:

• Violated the Endangered Species Act by adopting regulations that are inconsistent with that statute;
• Violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations; and
• Violated the Administrative Procedures Act by not adequately considering public comments submitted by the Attorney General and numerous other organizations and concerned citizens.

The Attorney General’s lawsuit follows three similar lawsuits challenging the regulations filed earlier by environmental groups.

Attorney General Brown’s amended complaint challenging the regulations and comments on the proposed regulations are attached.

FOR IMMEDIATE RELEASE
December 29, 2008
Contact: Christine Gasparac (916) 324-5500

Attorney General Brown Sues to Overturn Bush Administration Rules Undermining Endangered Species Act

SAN FRANCISCO– California Attorney General Edmund G. Brown Jr. has filed suit in federal court to block an “audacious attempt” by the Bush Administration to gut provisions in the Endangered Species Act mandating scientific review of federal agency decisions that may threaten endangered species and their habitat.

“The Bush Administration is seeking to gut the Endangered Species Act on its way out the door,” Attorney General Brown said. “This is an audacious attempt to circumvent a time-tested statute that for 35 years has required scientific review of proposed federal agency decisions that affect wildlife.”

The new regulations, initially proposed by the Departments of the Interior and Commerce in August 2008 and made final on December 16, largely eliminate a requirement in the Endangered Species Act that mandates scientific review of federal agency decisions that might affect endangered and threatened species and their habitats.

The changes allow federal agencies to undertake or permit mining, logging, and other commercial activities on federal land and other areas without obtaining review or comment from federal wildlife biologists on the environmental effects of such activities.

The new regulations are the most significant changes to the Endangered Species Act and its implementing regulations in 20 years. Now that these regulations have been adopted, many decisions on whether to permit commercial activities on protected land will be made at the discretion of federal agency project proponents. These agencies generally lack adequate biological expertise and have incentives to conclude that their projects will not have adverse affects on endangered and threatened species and their habitat.

The changes also eliminate the requirement to consider the effects of greenhouse gas emissions on species and ecosystems from proposed federal projects. Federal agencies now no longer need to consider the possible adverse impacts on species like the polar bear from commercial projects that require federal approval or funding such as highway construction and coal-fired power plants.

The lawsuit, which was filed yesterday in the U.S. District Court for the Northern District of California, alleges that the Bush Administration:

• Violated the Endangered Species Act by adopting regulations that are inconsistent with that statute;
• Violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations; and
• Violated the Administrative Procedures Act by not adequately considering public comments submitted by the Attorney General and numerous other organizations and concerned citizens.

The Attorney General’s lawsuit follows three similar lawsuits challenging the regulations filed earlier by environmental groups.

Attorney General Brown’s complaint challenging the regulations and comments on the proposed regulations are attached.

SAN FRANCISCO– California Attorney General Edmund G. Brown Jr. today urged the United States Court of Appeals for the Ninth Circuit to reverse a lower court decision requiring California to make a $250 million down-payment on a massive $8 billion prison-construction project, arguing that the decision is in “blatant violation” of federal law.

“This decision is in blatant violation of federal law, which forbids federal judges from ordering states to build new state prisons,” Attorney General Brown said. “This is particularly unacceptable at a time when California is facing a $25 billion deficit,” Brown added.

Brown also called on the Federal appeals court to order the release of hundreds of pages of secret documents that are contained in an earlier version of the Receiver’s plan.

While Federal Prison Receiver Clark Kelso has acknowledged that his project “will result in the construction of 7 million square feet of new medical facilities—the equivalent of 70 Wal-Mart stores,” he has released to the public only one version of his plans. An earlier version -- which describes in graphic detail important elements of the $8 billion construction program -- has been kept under court seal.

Attorney General’s Filing

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 legal authority to mandate state prison construction, nor has the Receiver justified the massive sums called for in his plan.

“In ordering the state to fund the Receiver’s massive prison construction program, the district court clearly violated federal law, and its decision must be reversed,” Attorney General Brown wrote in his filing to the U.S. Court of Appeals for the Ninth Circuit.

The Prison Litigation Reform Act (PLRA), approved by Congress in 1996, bars federal courts from ordering states to fund state prison construction.

The Receiver’s $8 billion demand includes construction of 7 new prison healthcare facilities containing 10,000 new beds for prisoners with acute and long-term health needs. The plan would also improve healthcare and mental health facilities at each of the 33 existing state prisons.

The State of California has acknowledged the need to provide constitutionally adequate healthcare. The state, however, argues that the Receiver has not complied with the Prison Litigation Reform Act, which requires that any prison remediation plan that a court orders “is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” (18 U.S.C. § 3626(a)(1)(A)).

State Has Made Progress on Health Care

One of the fundamental problems in fulfilling the state’s constitutional healthcare mandate was the lack of qualified medical staff to treat the inmates. According to his own reports, the Receiver will have 90% of nursing and physician positions filled by January 2009, up from 50% when he was appointed.

The Receiver has also begun to change the process by which inmates are assessed and how they are treated, actions which address the deficiencies that led to appointment of the Receiver.

These steps have significantly improved the level of care provided to prisoners.

FOR IMMEDIATE RELEASE
December 5, 2008
Contact: Christine Gasparac (916) 324-5500

Brown Urges Congress to Authorize California’s Greenhouse Gas Emissions Standards in Auto Bailout Legislation

SACRAMENTO – Attorney General Edmund G. Brown Jr. today sent Congressional leaders a letter urging them to include language in any automaker bailout legislation that would authorize California and other states to implement and enforce California’s greenhouse gas emissions standards.

California’s greenhouse gas standards require a 30% reduction in greenhouse gas emissions from motor vehicles by 2016. More than a dozen states have adopted similar standards, which the auto industry has fought to prevent from taking effect.

Attorney General Brown’s letter to Congress:

The Honorable Nancy Pelosi The Honorable Harry Reid
Office of the Speaker Office of the Majority Leader
U.S. House of Representatives U.S. Senate
Washington, DC 20515 Washington, DC 20515

The Honorable Barney Frank The Honorable Christopher J. Dodd
Chairman, House Committee on Chairman, Senate Committee on
Financial Services Banking, Housing, and Urban Affairs
U.S. House of Representatives U.S. Senate
Washington, DC 20515 Washington, DC 20515

RE: Automobile Industry Bailout

Dear Speaker Pelosi, Majority Leader Reid, Representative Frank, and Senator Dodd:

As you consider a bailout of the automobile manufacturers and the adequacy of their plans for revitalizing this important industry, I encourage you to include language in any legislative package authorizing California and other states to implement and enforce California’s greenhouse gas emissions standards.

For over 40 years, California has had the authority to set stricter standards than the federal government for automobile emissions under the Clean Air Act. For thirty years, other states have been permitted to adopt those tougher standards. The program has worked exceedingly well.

In 2005, California applied this authority to greenhouse gas emissions. More than a dozen states have adopted identical regulations. Nevertheless, the automobile industry has attacked them at every turn, and has indicated it will continue to do so.

That’s why I’m urging you to condition any taxpayer assistance to the automobile industry on an explicit authorization for California and other states to implement California’s landmark greenhouse gas emission standards.

Edmund G. Brown Jr.
Attorney General of California

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.