Legislature challenges legality of Brown’s greenhouse gas emissions order

When Gov. Jerry Brown issued an executive order a year ago this week establishing even more ambitious targets for reducing greenhouse gas emissions by 2030, the action won broad applause from Democrats who support his aggressive agenda targeting climate change. Brown’s order required a 40 percent cut from the 1990 level of emissions by 2030, matching commitments made by European Union members, and decreed that the state’s cap-and-trade program would extend beyond its scheduled 2020 sunset.

But there was also some eye-rolling. How could a governor who will be out of office in January 2019 possibly impose binding conditions on future chief executives and Legislatures beyond those established in AB32 and other emission-focused legislation formally adopted by the Assembly and Senate?

Now it turns out that the Legislature’s top attorney — Legislative Counsel Diane Boyer-Vine — shares this skepticism. Last week, state Senate Minority Leader Jean Fuller, R-Bakersfield, released a letter by Boyer-Vine responding to her questions about whether Brown could change state law by fiat.

“We think the determination of a standard for the statewide (greenhouse gas) emissions limit is a fundamental policy decision that only the Legislature can make,” Boyer-Vine wrote. She noted that under state law, the Legislature couldn’t assign sole policy-making authority on the issue to the governor even if it wanted to.

The California Air Resources Board defended the legality of the governor’s order with a statement that didn’t address the specific legal points made by Boyer-Vine.

“While the 2020 limit is an important first step in measuring progress, climate change will not end in 2020 and AB32 explicitly states the intent to ‘maintain and continue reductions in emissions of greenhouse gases beyond 2020,’” a spokesman told the Sacramento Bee.

Echoes of D.C. fights — with one big difference

The emerging battle has crucial similarities to the fights over executive authority in Washington, where Republican lawmakers have backed lawsuits challenging President Obama’s orders on immigration, pollution and other issues. But one big difference is that the Sacramento scrum is over a policy area in which California’s legislative and executive branches are generally in sync: greenhouse gas reduction.

But an Associated Press story about Boyer-Vine’s opinion hinted at why Brown prefers a unilateral approach to either deferring to or working with the Legislature on a measure expanding upon AB32 a decade after its passage:

Overturning the executive order would be a blow to Brown’s effort to establish a legacy and a global identity as a crusader against climate change. …

While Democrats maintain overwhelming control of the Legislature, Brown would face difficulty winning legislative approval for his emissions targets. A group of moderate Democrats in the Assembly has sided with business interests against efforts by Brown and conservation groups to create stronger environmental protections.

“The Legislature should not advance the cap-and-trade program under this dark legal cloud,” said Sen. Jim Nielsen, R-Gerber.