Last week, the seven Republicans on the 13-member board forced out AQMD Director Barry Wallerstein, long criticized by business interests as hostile and indifferent to the economic downside of heavy regulation. In December, the GOP bloc passed on staff recommendations and adopted rules on refineries and other heavy industries that had been lobbied for by the Western States Petroleum Association and other oil interests.

State Senate President pro Tem Kevin de León, D-Los Angeles, reacted sharply to both moves. This week, he announced plans to introduce legislation that would add three members to the AQMD board. The board now consists of 10 elected officials from cities and counties in the AQMD region as well as one member chosen by the governor, one by the Assembly speaker and one by the Senate Rules Committee.

Adding one public health expert and two “environmental justice” members to the board would likely lead to …

… more aggressive steps to curb pollution and would give the state Legislature and Gov. Jerry Brown greater influence over the agency charged with protecting the health of 17 million people in the nation’s smoggiest region.

 

Under de León’s plan, two of the additional appointees would be selected by state legislative leaders. The public health member would be appointed by the governor, increasing the panel from 13 to 16 members. …

 

Recent appointees to the air board, including Highland Mayor Larry McCallon and Lake Forest Councilman Dwight Robinson, have said they want the agency to give more emphasis to the economic burden posed by tougher emissions regulations. Republicans gained a seven-member majority with the swearing in of Robinson last month following a campaign by GOP leaders to gain control of the regulatory agency.

That is from a Los Angeles Times report.

December decision triggers lawsuit from green groups

Meanwhile, the December vote against tough new emission rules has triggered a lawsuit, KPCC reports:

Southern California air has never met state and federal standards for ozone pollution, which is associated with various respiratory and health problems. In EPA-speak, it’s considered an “extreme ozone non-attainment area.” To reduce ozone pollution, the AQMD had proposed further reducing the emission of oxides of nitrogen — known as NOx. …

 

The AQMD staff had been working for three years to devise new rules that would limit the NOx that could be emitted by stationary pollution sources, mostly refineries and a cement plant. The AQMD board voted … for a proposal favored by … local refineries.

 

The WSPA proposal permits refiners and other stationary sources of pollution to emit 14 tons of oxides of nitrogen daily versus only 12 tons envisioned by the AQMD staff plan. The board also voted for a plan that relieved refiners and other polluters of a proposed requirement to install new emission controls and instead permitted them to buy air pollution credits.

 

The Center for Biological Diversity, Communities for a Better Environment, Sierra Club and the Natural Resources Defense Council filed a lawsuit Wednesday against the AQMD over the decision. They called the staff-written proposal “the most significant smog-fighting proposal within its jurisdiction in a decade.”

 

The groups want a Superior Court judge to set aside the December NOx decision and require refineries and other stationery polluters to install equipment to reduce the amount of NOx they put out. The groups do not want the companies to be able to buy pollution credits instead.

The L.A. region has a long history of pioneering in efforts to combat smog and other air pollution. The Los Angeles County Air Pollution Control District, established in 1947 — the first such agency in the nation — was the forerunner of the modern AQMD.

Air pollution in Los Angeles is generally believed to have peaked in the 1950s. Smog health alerts, once a common occurrence, are now rare. But the L.A. area still has the worst or among the worst records for air pollution of any U.S. city, depending on the category of pollutant.

Assembly Bill 464: Transaction and use taxes: maximum combined rate. Authored by Assemblyman Kevin Mullin, D-San Mateo, this bill would:

• Raise the local sales and use tax limit from 2 percent to 3 percent

Senate Bill 3: Minimum Wage: adjustment. Authored by state Senator Mark Leno, D-San Francisco, this bill would:

• Increase the minimum wage to $13 per hour by July 1, 2017
• Require annual increases beginning July 1, 2019

Senate Bill 32: California Global Warming Solutions Act of 2006: emissions limit. Authored by state Senator Fran Pavley, D-Agoura Hills, this bill would:

• Extend the provisions of Assembly Bill 32 (2006) until 2050
• Increases the GHG (Green House Gas) reduction to 40 percent of 1990 levels by 2030 and 80 percent below 1990 levels by 2050

Senate Bill 350: Clean Energy and Pollution Reduction Act of 2015. Authored by state Senator Kevin de León, D-Los Angeles, this bill would implement Governor Brown’s green energy plan (50-50-50) by mandating:

• 50 percent of all energy must come from select renewable sources by 2030
• 50 percent reduction in oil usage by vehicles by 2030
• 50 percent more energy efficiency in buildings by 2030

Source: 5Gyres

After a near miss last year, a new push to ban so-called microbeads has gained momentum, clearing the California Assembly.

The tiny plastic orbs, especially prevalent in cosmetics and personal care products, like facial scrubs, became the target of environmentalist scorn over recent years. Instead of quickly biodegrading, the microbeads slip through natural and artificial filtering mechanisms, showing up in oceans, animals and, ultimately, in the food we eat.

Industry opposition

Assemblyman Richard Bloom, D-Santa Monica, introduced Assembly Bill 888 this year, hoping to avoid a repeat of his unsuccessful effort in 2014. On that occasion, the state Senate rejected Bloom’s bill by a single vote.

Although energized activists worked to build a broader coalition the second time around, AB888 retained a key component from last year’s bill that contributed to its failure. “If the California bill becomes law,” the New York Times reported, “the state would ban not only synthetic particles but the biodegradable ones that many companies have been developing as alternatives.”

That starkly contrasted Bloom’s legislation with successful bills, in states like New Jersey, that permitted other biodegradable materials to be used in microbead-like fashion. Stiv Wilson, associate director of the anti-microbead 5 Gyres Institute in Santa Monica, told the San Francisco Chronicle that provision placated worried manufacturers.

“Wilson said California’s bill met fierce industry opposition, while a bill in New Jersey sailed through. He said the difference came down to a loophole in the New Jersey bill, which allows for bioplastics made from polylactic acid to replace the polyethylene and polypropylene plastic currently used.”

As New Jersey legislators have struggled to decide whether to ask Gov. Chris Christie for a “conditional veto” that would wipe out that allowance, Bloom’s bill has added California to a relatively short list of states reckoning with the impact of microbeads. As the Times noted, in addition to New Jersey, Colorado, Illinois and Maine have legislated restrictions on their use, “while bills are pending in others, including Michigan, Minnesota, Washington and Oregon.”

Shifting science

The turn against microbeads hasn’t just come from environmentalists, however. Some big corporations using microbead technology have announced they’ll soon phase in alternatives still in research and development. As Vice News reported, Colgate, Johnson & Johnson and L’Oreal have “promised to rid their products of the stuff, though the adjustment could take several years to complete.”

Johnson & Johnson, for instance, explained in a statement that microbeads will be eliminated “by the end of 2017,” while the development of new products with microbeads has already been ceased. “Our goal is to complete the first phase of reformulations by the end of 2015, which represents about half our products sold that contain microbeads,” the statement concluded.

Initially, microbeads were seen by sellers and shoppers as a beneficial innovation. “Manufacturers initially turned to the tiny plastic particles because they are cheaper and generally don’t cause allergic reactions while giving consumers the feeling of a deep clean,” as the Chronicle recounted. But health concerns about microbeads have mounted since their use dramatically spread. “I have been warning my patients away from plastic microbeads for years,” one member of the American Academy of Dermatology told Vice. “They are horrible. Initially it wasn’t known that they were so harmful. It was definitely a case of unintended consequences.”

Wait and see

For now, industry interests have not coalesced as powerfully against Bloom as in the past. Giving manufacturers more lead time to adjust, AB888 “would prohibit the sale of microbead-containing products beginning in 2020,” as the Sacramento Bee noted; a leading industry group has “adopted a neutral position” as amendments to the bill have specified its scope and reach.

Is California the greenest and fairest state when it comes to clean fuel standard regulations? No on both counts, contended the Wall Street Journal in a recent editorial, “California’s Green Trade War.” It said “economic protectionism” is behind the Low Carbon Fuel Standard of 2009 of the California Air Resources Board.

The Journal accused CARB of rigging the pollution regulation game by prejudicially giving Alaskan crude oil the same emissions score as California crude oil, which has four times the amount of carbon.  The Journal said California is cornering the market on “advanced” biofuels made from soybeans, landfill waste byproducts, and animal lard by penalizing out-of-state ethanol producers.

CARB Executive Officer Richard Corey rebutted that, insisting that California’s air pollution regulations are both “fair and green.”  Corey maintained CARB no longer calculates crude oil carbon density that way.  Corey said CARB now uses a computer model vetted by regulators and affirmed by a three-judge panel of the U.S. Ninth District Court of Appeals.

The appeals case referred to is Rocky Mountain Farmers Union et al. vs. Corey (California Air Resources Board, Sept. 18, 2013). This case overturned a lower district court in the case of Rocky Mountain Farmers vs. Goldstene (June 16, 2010), which found that CARB discriminated against out-of-state fuel providers and violated the Interstate Commerce Clause of the U.S. Constitution.

The plaintiffs in both court cases — a group of farmers, growers, dairy farmers, truckers and the petrochemical industry — now want an en banc (meaning all judges) decision by the Ninth Circuit to affirm the panel's decision so the case can be appealed to the U.S. Supreme Court. The Ninth Circuit suffered an 86 percent reversal rate by the U.S. Supreme Court in the last term. So the plaintiffs are hoping that temporary defeat will become ultimate victory.

Judge dissented

Judge Mary H. Murguia issued the sole, partial dissent from the three-judge panel's ruling. Her dissent was based on Table 6 of CARB’s Low Carbon Fuel Standard, which she said explicitly “differentiates between in-state and out-of-state ethanol, according more preferential treatment to the former at the expense of the latter.”  This violates the Interstate Commerce Clause of the U.S. Constitution, she wrote on page 73.

Table 6 is excerpted below, which clearly shows different values for in-state and out-of-state fuels. The main differences are CARB’s unfavorable scoring of “electricity” usage by Midwest ethanol fuel providers compared to California’s; and equal “land use” scores for in-and-out-of-state ethanol providers. Arguably, growing corn for ethanol in California uses much more valuable water than in the Midwest, which enjoys plentiful rain and rivers, but both have the same “land use” score.

Murguia was appointed to the Ninth District in 2010 by President Barack Obama. She is the twin sister of civil rights leader Janet Murguia. So one might expect her to take liberal positions. But in this case she did not.

Corey claims that out-of-state fuel farmers are supportive of CARB’s standards. But Corey’s rebuttal letter failed to explain why farmers from both California and the Midwest had brought the lawsuit against CARB.

Fifth District Appeals Court says CARB’s computer model needs vetting

Corey also failed to mention in his letter a parallel lawsuit brought by a Midwestern corn ethanol producer and a Sacramento research firm in a case before the Fifth Appellate District of the Court of Appeal of the State of California.  The case is POET vs. CARB, June 15, 2013. In that case, the State Appeals Court also upheld CARB’s Low Carbon Fuel Standard, but required corrections.

Among the corrections, CARB must prove there are significant negative effects on the environment from Nitrogen Oxide emissions, rather than just assert such effects.  Also, CARB must allow public comment on the carbon intensity values assigned to land use changes and the formulas used in the Global Trade Analysis Project computer model used by CARB. Additionally, four emails from consultants originally left out of CARB’s analysis must be included in the rulemaking file.

Both court cases do not necessarily support Corey’s claim that California is green and fair.  To do that, a comparison with the state of Texas may be helpful.

Why doesn’t Texas have same bad air pollution as California?

California has nine out of the worst 25 cities for air pollution in the U.S.: Los Angeles, Bakersfield, Visalia, Fresno, Sacramento, El Centro, San Diego, Hanford and Merced.  Texas only has two cities on the list: Dallas and Houston.

The major causes of smog in Dallas and Houston are cars and plastics, oil and gas production. Most other Texans live in plains and plateaus where any potential toxic substances are dissipated quickly into the atmosphere. Texas is topographically greener than California despite its greater energy usage, but 12 million less population.

Texas relies on coal fuel for 32 percent of its energy use, while California only depends on coal for 3.7 percent of its total energy usage (but 15.5 percent of its electricity usage).  Texas imports coal fuel from Wyoming to run TXU power plants in Dallas, while California imports coal powered electricity from Utah to light up Los Angeles.  Texas imports its pollution; California exports it.  With a much higher usage percentage of so-called “dirty” coal-generated power than California, one would think that Texas would suffer from greater air pollution.  But it doesn’t.  Why?

The answer is most Californians live in nine topographic basins along the coastline that serve as traps for smog.  The major cause of smog in California cities is an inversion layer of warm air above cooler air that makes a toxic trap. Natural smog traps cause smog, not only man-made airborne substances.

Who is the greenest and fairest of them all?

According to the Journal, California subsidizes homegrown biofuels by $23 billion. Political liberals are usually the most concerned about fairness and about giving subsidies to farmers. But there isn’t much, if any, opposition by fair-minded liberals about subsidies to farmers for green fuels.

Moreover, no less than the impartial California Legislative Analyst’s Office has inferred that CARB’s cap-and-trade auction of pollution permits is unfair.  This is because the LAO says an auction is unnecessary to accomplish CARB’s pollution reduction goals.

Arguably, moving California’s conventional power plants out of its smog basin traps might accomplish CARB’s pollution reduction goals without having to rely on expensive and grid-destabilizing green power. Instead, California is diverting population growth to coastal smog traps in the name of arresting “urban sprawl.”

              Table 6 Breakout (2011); Cal. Code Regs. Title 17, Sec. 95486 (b) (1)

By WAYNE LUSVARDI

Call it “pollution pork.” Gov. Arnold Schwarzenegger has been gone only five months and his most beloved legacy, AB 32, already is being cut up like an Austrian wiener schnitzel. AB 32 is the Global Warming Solutions Act of 2006.

Among other things, AB 32 established a “Cap and Trade” system in which polluting companies can “trade” pollution credits with those with less pollution in a new market-like system.

On June 2 the California State Senate passed a new bill, SB 535, the California Communities Healthy Air Revitalization Trust Act, by state Sen. Kevin de Leon (D-Los Angeles). It is currently being heard in the Assembly.

It would require “at least” 10 percent of any revenue generated under the Cap and Trade portion of AB 32 that kicks in around 2012 to be used in “disadvantaged communities for greenhouse gas emission reduction projects, mitigation of health impact of climate change, and support for green collar jobs.”

As proposed, SB 535 would require air excise taxes or rents to be transferred from smoggy agricultural areas such as Visalia, Porterville, Fresno, Merced and Bakersfield to coastal low-income industrial communities that enjoy clean air, such as Oakland, Alameda, and Oxnard.

The auction of pollution credits under the Cap and Trade program is projected to generate a minimum of $100 million in the first year and higher amounts afterward.  Under SB 535, $10 million would go toward green jobs in communities supposedly suffering from more pollution than other California communities.

Cap and Trade

As advertised, Cap and Trade, also called Emissions Trading, is the governmental creation of an artificial “market” designed to reduce pollution by paying people who reduce pollution with money from polluters.  Cap and Trade, however, is not a market but a wealth distribution scheme masquerading as a market.  Markets are mechanisms to deliver the lowest priced product or service, not add a Pollution Pork rent on top of every good or service produced.  Such added costs are properly called excise taxes or monopoly rents.

In other words, under SB 535, California is proposing to impose a 10 percent rental premium on clean air — Pollution Pork — and then transferring that rent to politically favored constituencies that cannot afford to pay that rent in order to buy jobs and votes. SB 535 may purportedly produce clean air; but it will also produce dirty politics because the green jobs will go to the politically connected.  And once parasitical green jobs are created from Pollution Pork, then another entitlement will be created that will be next to impossible to reverse.

Government is good at shifting wealth around to cronies and the well connected and calling it a solution — witness redevelopment, affordable housing, waterless water bonds, etc.  Government is a pea shell game.

There is a term in economics called “rent seeking” that would apply to the Pollution Pork air rents proposed by SB 535.  Rent seeking is when some entity seeks to extract rents from others by manipulation and monopolistic advantage, often through government regulations. What is critical to understand is that rent seeking is not a mutually beneficial or voluntary transaction, as would occur in a market.

And while taking your property would require just compensation under the Fifth Amendment to the U.S. Constitution, “rent seeking” is a way to pick your pocket without compensating you for your loss. Rent seeking is not a value-added activity — it is parasitical.  Pollution Pork will be more of California’s voodoo economics.

Neither is there any convincing nexus between polluters and those communities purportedly harmed. Pollution Pork air rents extracted from polluting industries under SB 535 will not go to pollution reduction technologies or equipment for those industries. SB 535 will merely shift pollution from polluting industries to newly created green jobs and industries that will not be counted in pollution measurements.

Inconsistent Tax

Moreover, that some wealthy people can afford to live in beach and mountain areas with little pollution is not justification for imposing a tax on them and everyone else and transferring it to those who cannot live in such areas.  Such a tax would be highly inconsistent.  Should the people who live in the windy high desert areas of Los Angeles County — such as Lancaster and Palmdale — with some of the most affordable housing in the state, subsidize green jobs in Bell Gardens or wealthy industrial cities such as the City of Commerce, City of Industry and Vernon?

Should smoggy agricultural cities such as Visalia-Porterville, Fresno, Merced and Bakersfield subsidize green jobs in lower-income industrialized coastal cities that have clean air, such as Oakland and Alameda?

Pollution Pork means picking winners and losers in the AB 32 game, and forcing the losers to pay the winners. It’s just the beginning of the economic distortions AB 32 will cause.

SUPPORTERS OF SB 535:

California Environmental Justice Alliance (co-source)

Coalition for Clean Air (co-source)

Ella Baker Center (co-source)

Greenlining Institute (co-source)

NAACP (co-source)

National Resource Defense Council (co-source)

American Lung Association of California

Asian Neighborhood Design

Asian Pacific Environmental Network

Asian Pacific Islander Youth Promoting Advocacy and

Leadership

Breathe California

California Environmental Justice Alliance

California League of Conservation Voters

California Rural Legal Assistance Foundation

Californian Pan-Ethnic Health Network

Catholic Charities Diocese of Stockton

Center for Community Action and Environmental Justice

Center on Race, Poverty and the Environment

Coalition for Clean Air

Communities for a Better Environment

East Yard Communities for Environmental Justice

Environment California

Environmental Defense Fund

Environmental Health Coalition

Latino Coalition for a Healthy California

Los Angeles County Bicycle Coalition

National Parks Conservation Association

People Organized to Demand Environmental & Economic Rights

Regional Asthma Management and Prevention

Sierra Club California

Southeast Asian Community Alliance

Trust for Public Land

Union of Concerned Scientists

OPPOSITION TO SB 535:

American Council of Engineering Companies

California, Building Owners and Managers Association

California Building Industry Association

California Business Properties Association

California Chamber of Commerce

California Farm Bureau Federation

California Forestry Association

California League of Food Processors

California Manufacturers & Technology Association

California Metals Coalition

California Retailers Association