Newton’s Third Law apparently not only applies in physics, but in politics as well. Last week, the California Senate leadership unveiled the “Preserve California” legislative package to oppose the rollback of federal environmental protections by President Trump and the GOP-controlled U.S. Congress. The package included California State Senate Bill 49, aka the “California Environmental Defense Act,” which would adopt pre-Trump federal environmental and safety regulations as the minimum standards under California law.
Specifically, Senate Bill 49 would apply to the pre-Trump federal regulations issued under the federal Clean Air Act, Clean Water Act, Endangered Species Act, Safe Drinking Water Act, Fair Labor Standards Act, Occupational Safety and Health Act, and Mine Safety and Health Act. The bill was introduced because Trump and the GOP have “signaled a series of direct challenges to these federal laws and the protections they provide ….” Right on cue, President Trump released his plan yesterday to significantly limit the definition of waters of the United States protected by the Clean Water Act.
Now, take a moment to really appreciate the scope of Senate Bill 49 if enacted. California has state analogues to these federal laws, but Senate Bill 49 would take those state laws to an entirely new level. For example, there are currently 87 animals listed under the California Endangered Species Act (CESA). If passed, Senate Bill 49 would nearly double the number of listed species under CESA by adding 74 animals that are currently only protected under the federal Endangered Species Act (federal ESA). Further, Senate Bill 49 would arguably protect federal listed species from habitat modification that rises to the level of “take” under the federal ESA, a protection those species do not currently enjoy under CESA. This could create many headaches for developers, in particular as they deal with a state agency that does not have the resources or experience to process incidental take permit applications for species listed only under the federal ESA.
The last election cycle should have taught us all something about making predictions. Regardless, let’s make an initial assessment of Senate Bill 49’s odds of success:
Sponsored by Senate Leadership? Check.
California Legislature controlled by Democrats? Check.
Precedent in California for passing similar legislation? Check.
Governor willing to go toe-to-toe with Trump? Check.
And a President with environmental regulations in his crosshairs? Double check.
Stay tuned for what will certainly be a wild ride in the environmental regulatory world!