The Developer-in-Chief and environmental law, regulation and enforcement

"Nothing in these new rules helps wildlife, period. Instead, these regulatory changes seek to make protection and recovery of threatened and endangered species harder and less predictable. We're going to court to set things right," Earthjustice attorney Kristen Boyles said in a statement. – Miranda Green, The Hill, Aug. 21, 2019


(2) If the state board determines that a change to the federal standards is less protective of public health and safety, the environment, natural resources, or worker health and safety than the baseline federal standards, the state board shall consider whether it should adopt the baseline federal standards as a measure in order to maintain the state’s protections to be at least as stringent as the baseline federal standards.  -- SB-1 California Environmental, Public Health, and Workers Defense Act of 2019, as amended by state Assembly, July 1, 2019.


Although the Natural Resource Defense Councill's  report below is the best single  we could find on the collision between California and the federal government over the gutting of federal environmental law and regulation by Trump administration fiat, bear in mind that California state Senate Bill-1 is not yet law and will face major special interest resistance. The major federal conflict of interest problem is Secretary of Interior David Bernardt’s previous carrier as Westland Water District’s top lobbyist with the firm of Brownstein Hyatt Farber Schreck, in which he is a partner. On the state level, Gov. Gavin Newsom’s family has been tied to the oil industry through the Getty family for two generations, and Lt. Gov. Eleni  Tsakopoulos Kounalakis, ambassador to Hungary during the Obama administration, was president of AKT, one of the largest and most politically powerful development corporations in California. Both these top state officials also have major conflicts of interest regarding environmental law and regulation.

We hope SB-1 won’t go the way of SB-4 (2013), the so-called “best fracking-regulation bill in the land, authored by state Sen. Fran Pavely, who oversaw the bootlegging of a significantly modified bill into law, containing provisions and omissions not supported by the environmental groups that originally signed onto it.

On the positive side, the Sierra Club, Earthjustice, the Center for Biological Diversity and others filed suit this week against the Trump administration’s destruction of these popular and effective laws. -- blj


Will CA Pass SB 1 to #Resist Trump’s Environmental Assault?

August 16, 2019 Doug Obegi

The Trump Administration is stepping up its attacks on California’s rivers, salmon, and other native fish and wildlife, and the thousands of fishing jobs that depend on these environmental protections. Undermining the Endangered Species Act is only a part of their assault on our nation’s bedrock environmental protections for clean air, clean water, and fish and wildlife.

In response, the State legislature has been considering critically important legislation (SB 1 by Senators Atkins, Portantino and Stern) that helps protect against these Trump rollbacks by directing state agencies to #resistTrump by incorporating existing federal environmental standards in state rules, actions and policies.  But Central Valley agribusinesses are furiously lobbying the Governor and Legislature to oppose SB 1 and support Trump’s efforts to gut environmental protections.

Earlier this week, the Trump Administration announced final regulations that would gut the Endangered Species Act nationwide, weakening protections for our most imperiled wildlife.  Many beloved animals that live in or migrate through California are only protected under the federal ESA, and not under California’s Endangered Species Act, like the Southern Sea Otter, steelhead, snowy plover, and Southern Resident Killer Whale.  For other species, like winter-run Chinook salmon, that are listed under both the state and federal endangered species acts, California has historically relied on biological opinions (federal permits under the Endangered Species Act) to ensure protections are adopted that comply with State law.  The State now recognizes that relying on federal biological opinions in the Delta no longer works. SB 1 is intended to help fill these gap to ensure no backsliding in protecting clean air, clean water, and endangered species.

But it’s not just changes to regulations implementing the Endangered Species Act – the Trump Administration is also working to rewrite existing biological opinions to weaken protections for salmon and other ESA listed species. On July 1, the Feds prepared biological opinions for the operations of the massive Central Valley Project and State Water Project.  As reported by the Los Angeles Times and other outlets, the National Marine Fisheries Service had found that the proposal to weaken protections would jeopardize the continued existence of winter-run Chinook salmon, spring-run Chinook salmon, Southern Resident Killer Whales, and other species.  In response, the Trump Administration simply replaced the scientists with the National Marine Fisheries Service who had been drafting the biological opinion and brought in other staff to rewrite the biological opinion.  

Yet even with this blatant political interference, the rewritten draft biological opinion still concludes that the Trump Administration’s proposal to weaken protections for salmon would increase the risk of extinction for winter-run Chinook salmon, spring-run Chinook salmon, and Southern Resident Killer Whales.  It also finds that the proposal would reduce the survival and abundance of those species and fall-run Chinook salmon, which are the backbone of the State’s salmon fishery. 

In addition, the Trump Administration just proposed to weaken protections for Delta Smelt this year, attempting to weaken the existing biological opinion in order to reduce the amount of water that would flow through the Delta to help prevent the extinction of this imperiled native species.  In 2017, the California Department of Fish and Wildlife rejected a similar proposal to weaken these protections, concluding that the proposal did not comply with state law, that it harmed water supply for the State Water Project, and that the State should have tools to require the Central Valley Project to offset the water supply impact to the State Water Project.  As a result, these critical protections were not fully implemented, harming Delta Smelt, and the State Water Project ultimately lost water supply, because it had to do more than the Feds to protect the species.  

The science is clear that California must provide stronger protections for endangered salmon and other native fish and wildlife in the Bay-Delta if we are going to sustain these magnificent creatures.  In the past few years, State and federal agencies (including Interior Secretary Sally Jewell) have repeatedly found that stronger protections are needed, like increased flow in our rivers and through the Bay-Delta, and improved reservoir management to ensure cold water for salmon below dams, that would strengthen the existing biological opinions – not weaken them as the Trump Administration proposes.

In addition to helping to stop the Trump Administration’s assault on endangered fish and wildlife, SB1 helps protect the State Water Project and other water users by ensuring that the federal Central Valley Project has to comply with the California Endangered Species Act.  This would provide a level playing field for all water users, ensuring that no one is above the law, and it is consistent with the deference to state law embodied for more than a century under section 8 of the Reclamation Act of 1902, and section 3406(b) of the 1992 Central Valley Project Improvement Act (which requires operations of “the Central Valley Project to meet all obligations under state and federal law”).

It’s abundantly clear that the new biological opinions coming out from the Trump Administration won’t pass muster under California’s Endangered Species Act, meaning that without SB 1, the State Water Project will operate to a more restrictive set of rules than the federal Central Valley Project. But if SB 1 were in place, the Central Valley Project should have to share equally in providing the water needed for our native fish and wildlife species.

Thankfully, Attorney General Becerra is suing to defend California law and our natural heritage, recently winning an injunction to help stop the expansion of Shasta Dam that would violate state law and announcing plans to file a lawsuit challenging the Trump Administration’s recent regulations gutting the Endangered Species Act.  But California needs to do much more to prevent the Trump Administration from driving salmon and other native species extinct, and from polluting our water, our air, and climate. 

SB 1 is much broader than the Bay-Delta, giving California more tools to protect the State from the Trump Administration's attempts to gut the Endangered Species Act, Clean Water Act, Clean Air Act, and other environmental laws.  It’s clear that Central Valley agribusinesses stand with Trump and support these proposals that will likely lead to extinction of salmon and other native fish and wildlife in the Delta. But SB 1 is an essential tool to help the State of California ensure that rather than moving backwards with the Trump Administration, California continues to move forward.