Job Killer Bill Threatens Water Supply Reliability

Legislation that threatens water supply reliability for millions of Californians is scheduled to be considered next week by an Assembly policy committee.

The California Chamber of Commerce has labeled SB 1 (Atkins; D-San Diego) as a job killer due to the significant and entirely avoidable negative consequences resulting from language in the bill.

The author’s stated intent is to protect California’s air, water, biodiversity and citizens from any federal changes that undermine the state’s existing environmental standards.

Instead, the bill:

• substantially threatens water supply reliability for millions of Californians;

• forces state agencies to review irrelevant federal laws, regulations and guidelines;

• instigates costly litigation through the creation of brand new private rights of action;

• removes basic due process for everyone by waiving Administrative Procedure Act safeguards; and

• automatically integrates federal baseline standards into California law without agency review.

The CalChamber and a coalition of industry groups and local chambers of commerce have proposed reasonable amendments that preserve all goals in the bill, avoid all identified negative impacts, and thereby remove all industry opposition. Unfortunately, the amendments have not been taken.

Citing similar reasons, others opposing SB 1 unless it is amended are water providers belonging to the State Water Contractors, six counties in Central California (Fresno, Kings, Madera, Merced, Stanislaus and Tulare), and the Metropolitan Water District of Southern California.

Unresolved Issues

Although the author has accepted some of the amendments to address the CalChamber and coalition concerns, the majority and most significant problems of the bill remain unresolved. Those flaws include the following:

• SB 1 undermines the State Water Project, Central Valley Project and voluntary water flow agreements by removing the ability of the state Department of Fish and Wildlife to apply new science and adaptive management practices, thereby dismantling years of negotiations.

The bill’s rigid approach to water management runs counter to the collaborative, science-based approach developed during the current and previous state administrations to enhance fish and wildlife habitat throughout California and provide reliable water supplies to communities.

A coalition of federal, state and local agencies, conservation groups and other stakeholders have been involved in developing the collaborative approach.

The voluntary water flow agreements are vital to protecting water supply reliability and improving the health of California waterways.

• SB 1’s overly broad mandate will have significant fiscal impacts for California agencies, estimated to be in the tens of millions of dollars annually.

California environmental and labor laws and regulations are some of the most protective standards in the nation. Where California laws already exceed federal standards, or where California law does not rely or reference federal standards, any rollbacks to those federal standards have no practical effect on California’s human health or the environment.

State agencies should focus their limited resources analyzing only federal standards that actually have an impact on state laws and regulations.

• SB 1 attempts to lock in place federal standards “in existence” at a certain date if any changes to federal standards are “less protective.” The term “less protective” is undefined, open to numerous interpretations in the environmental context, and as ambiguous as the “less stringent” standard recently amended out of the bill.

Therefore, SB 1 will produce significant unintended consequences.

• SB 1 subjects state and local agencies to lawsuits, including when reasonable persons can differ as to whether a standard/requirement is “less protective” than existing federal law. The bill also encourages such lawsuits through a one-sided attorneys’ fees provision and vague/ambiguous language.

• SB 1 violates the “single subject” requirement of the California Constitution by including three comprehensive federal labor standards and worker protection statutes in a bill already addressing complex federal environmental laws and regulations.

Any one of the federal environmental laws referenced under SB 1 could be an expansive bill on its own.

• Rulemaking pursuant to SB 1 will be permanent and without public notice and comment to nongovernmental organizations, businesses, the public and even state and local agencies. The bill circumvents the California Administrative Procedure Act.

As currently drafted, SB 1 provides no remedy other than litigation.

• New amendments allow federal baseline standards to automatically be integrated into California law without any state agency oversight or rulemaking.

Action Needed

SB 1 is scheduled to be considered on April 18 by the Assembly Environmental Safety and Toxic Materials Committee.

The CalChamber is asking members to contact their Assembly representatives and members of the committee to urge them to support the coalition amendments and prevent the unintended negative consequences and litigation risks from SB 1.

An easy-to-edit sample letter is available on the CalChamber website.

Staff Contact: Adam Regele

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Adam Regele
Adam Regele joined the CalChamber in April 2018 as a policy advocate specializing in environmental policy, housing and land use, and product regulation issues. He came to CalChamber after practicing law at Oakland-based Meyers, Nave, Riback, Silver & Wilson, PLC, where he advised private and public clients on complex projects involving land use and environmental laws and regulations at the local, state and federal levels. Before entering private practice, Regele served as a federal judicial law clerk to the Honorable Edward J. Davila of the U.S. District Court, Northern District of California. Regele earned a B.S. in environmental science at the University of California, Berkeley, and a J.D. from UC Hastings College of Law, where he was symposium editor and research and development editor for the Hastings West-Northwest Journal.