Apparently, it’s not enough that fossil fuel conglomerates are fighting implementation of AB 32, California’s landmark clean energy bill that will create thousands of jobs, pump up R&D on cleantech, slash global warming pollution, and put the state on the cutting edge of the global clean energy economy. Now Texas and three other states with attorneys general beholden to Dirty Oil and Big Coal have jumped on the high carbon bandwagon, vowing to sue California as a last-ditch effort to kill AB 32. 

Proponents of clean energy and jobs are already battling Proposition 23, a stalking horse ballot initiative funded by out-of-state oil companies Valero and Tesoro and the billionaire Koch brothers that would suspend implementation of AB 32 indefinitely. Though Proposition 23 is deceptively touted as a “jobs protection” bill, its real goal is to keep California dependent on fossil fuels and to keep profits pouring into the coffers of those polluting corporations that don’t care about sacrificing California’s health and clean air standards.

Now attorneys general (AG’s are not part of the administration in California — are they in these other states?) from Texas, Alabama, Nebraska, and North Dakota — all states with dirty oil and big coal interests — have vowed to sue California if Proposition 23 fails at the ballot box. They claim that AB 32 constrains free commerce because it establishes limits on California’s greenhouse gas emissions, possibly affecting the interstate purveyance of electricity produced by dirty fossil fuels.

This isn’t just a desperate gambit by dirty energy corporations and their government minions to turn back the technological clock — it is spurious legal strategy. Here’s why:

• The state attorneys general threatening these actions probably don’t even have standing to get into court. The states they represent are not selling electricity to California, and in fact, for the most part, the states themselves don’t sell any electricity at all. Private corporations within the states sell electricity, but it is not the state attorney general’s job to represent private corporations — their job, as a public official, is to represent the citizens of their state. Wasting time and public money suing California over our efforts to chart a clean energy future seems a wasteful way to carry out this public trust.
• California imports about 27 percent of its electricity: 8 percent from the Pacific Northwest and 18 percent from the Southwest. None comes from Texas (which, to avoid the Federal Energy Regulatory Commission’s jurisdiction, maintains its own electricity grid, separate from the rest of the West), nor Alabama, Nebraska, and North Dakota.
• California is not discriminating against out-of-state power producers in favor of those operating within California. Rather, AB 32 creates a level playing field to ensure the greenhouse gas emissions of in-state and out-of-state power producers who deliver electricity to California are treated exactly the same. Out-of-state producers can still sell power to California; they will just have to play by the same rules as producers inside California.
• California’s public agencies have carefully designed their electricity sector regulations to keep things even across state lines. They have conducted an exhaustive public process over the past four years, inviting all impacted parties to participate in a series of workshops, hearings, and comment letters, and have examined and responded to a host of legal issues. If Texas and others see a real legal problem (rather than a political problem) with AB 32, they have had ample opportunity (four years!) to raise it. 
• The attorneys general have no basis on which to prevent California from attempting to reduce greenhouse gas emissions. Following the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA, the Environmental Protection Agency recently issued an “endangerment finding” for greenhouse gases, concluding — on the back of overwhelming scientific evidence — that greenhouse gases, including CO2, endanger public health and welfare. The state of California has every right to take legislative action to protect the health and economic well being of the people who live in California, and Texas has no right to interfere.

Finally, a certain irony must be noted here. These same four states are often the first to champion of states’ rights, resenting what they claim is undue interference from outside authorities. Their intrusion into California’s internal issues is therefore all the more puzzling. The lawsuits they threaten undermine states’ rights, and smack of hypocrisy. Here in California, we are looking to protect our residents’ public health and economic future. We will actively resist the short-sighted attempts of other states — or the corporations that try to use public officials to further their private agendas — to keep us addicted to oil.

This referendum is either an attempted shell game on the citizenry or a product of dire ignorance. If you give industry free license to appropriate commonly-held natural resources, spew pollution into the air and water, and forgo investment in clean technologies that benefit the private and public sectors, you destroy the very basis of modern society. Without clean air and water, we are stymied; economically and socially, we cannot progress. What will we tell our grandchildren when their turn comes to claim their birthright of adequate natural resources and clean air and water? Will we have to tell them that we are sorry, but we asserted our “unalienable right” to use everything up? This is not acceptable. The idea that we can “protect” our rights by allowing unmitigated pollution and laying waste to our natural resources is retrograde thinking more appropriate to the 19th Century than the 21st.

We already have legislation that guarantees equitable access to natural resources, promotes sound economic development and job growth, and enhances our international competitiveness in the growing field of clean technology: AB 32, California’s Clean Energy Act. The essential purpose of AB 32 is to protect the state’s resources for current and future generations. Declaring our “right” to clean air and water, a beautiful coastline, and houses that are safe from forest fires is insufficient. California’s landmark climate legislation, AB 32, actively protects these shared interests from avoidable degradation. Similarly, people living along the Gulf Coast wouldn’t benefit much from passing acts declaring their right to clean water and a thriving marine ecosystem while a loosely regulated oil industry is allowed free reign to pollute the same. We are now seeing the results of an inadequately monitored fossil fuel sector as the Deepwater Horizon tragedy continues to play out.

Our dependence on dirty fuels robs us of our unalienable rights – it does not protect them.

The only way to secure the “right” to clean air and water and abundant natural resources is to move away from dirty fuels so that they won’t continue to degrade the places where we live and work.

AB 32 is the best hope we have of providing clean air and clean water for our descendants. Unlike the proposed initiative, it doesn’t fecklessly declare our right to a clean environment and abundant natural resources, then allow for their ruthless destruction. Instead, it lays out a rational, pragmatic path to sustainable resource use, economic progress and environmental protection. If we don’t protect AB 32, we could find ourselves mired in pollution, but still declaring our right to clean resources – somewhat akin to the oil-covered pelicans on the Gulf Coast declaring their right to fly.

The American Power Act allows and encourages California­ to move ahead with clean energy and global warming pollution reduction strategies.

California has long been a leader on environmental policies, including promoting cleaner energy and cleaner cars. In more recent years, California’s clean energy and global warming pollution reduction policies have made the state a mecca for investments in clean technologies that will power our future. The American Power Act recognizes California’s leadership, and it respects and protects our state’s ability to:

• Set its own carbon standards for vehicles, as well as other states’ option to adopt California’s standards (sec. 4141).
• Establish carbon pollution limits, clean energy, and energy efficiency programs for other sources that are more stringent than federal requirements; and,
• Establish overall statewide limits on global warming pollution, such as the targets in California’s AB 32.

The American Power Act preserves all of California’s carbon-curbing clean energy tools except cap-and-trade.

While the Kerry-Lieberman bill would protect most state powers to advance clean energy and curb global warming pollution, it singles out for permanent preemption one particular state authority. States would be prohibited from running cap-and-trade programs once the federal program to curb carbon pollution gets off the ground (sec. 2501, adding Clean Air Act sec. 806).

The effect of this provision on California, however, will be limited. As already noted, 80 percent of the carbon reductions expected under California’s Global Warming Solutions Act are coming from other clean energy and carbon reduction policies. Moreover, the American Power Act would provide California and other states that already have cap-and-trade programs with revenue from the federal allowance auction in place of revenue they would have raised by auctioning allowances at the state level.

Creating a national pollution limit is important so long as the national program is working well and achieving our national pollution reduction and clean technology goals. NRDC believes, however, that California and other states should retain the authority to limit carbon pollution by any cost-effective means, including cap-and-trade, if at any time the federal program and fails to achieve its goals.

The American Power Act builds on California’s leadership.

Using allowance value for the public good

While California has yet to finalize its rules statewide cap-and-trade rules, the consensus borne of three years of public dialogue among key stakeholders is that revenue from a cap-and-trade program can and should be used to help us transition towards a clean energy economy. This help can take the form of investing in energy efficiency, renewable energy, and research, development and deployment of new clean technologies, or providing refunds or rebates directly to consumers. Following California’s lead, the American Power Act recognizes this opportunity and provides for auction revenue — which will grow over time — to be invested in energy efficiency and in consumers.

Emission Performance Standard for coal plants

In 2006, California enacted legislation preventing new long-term investments in power plants that don’t meet a global warming pollution performance standard. This law sent a market signal to power developers in the West that dirty energy sources are not good long-term investments. The American Power Act picks up on this idea and establishes global warming pollution emission performance standards for new coal-fired electric power plants. It is not as aggressive as California’s but sends a signal to the national market that we need to move away from dirty energy and invest in clean energy sources.

The American Power Act unnecessarily threatens California’s coastline and marine life at risk.

For all the good it will do to curb global warming, the Kerry-Lieberman bill unwisely encourages new offshore drilling in previously protected areas. It does this by enticing east coast states with 37.5 percent of federal offshore oil and gas revenues, with absolutely no strings attached to the use of this money.

The American Power Act does give states the option to veto offshore leasing within 75 miles of their coasts (sec. 1204). However, states would face an uphill battle to achieve the veto: each state must pass a bill, and then the governor must petition the federal government, then the Interior Department must review and accept the petition, then the five-year leasing program must be revised. Meanwhile, leasing, seismic exploration, drilling, production and pipeline activities could go forward while states are jumping through hoops to get the veto. My colleague Regan Nelson has written in more detail on the offshore oil provisions.

Luckily, California is on the ball. Congressman John Garamendi sponsored the California West Coast Ocean Protection Act of 2010, a bill with 28 co-sponsors, which will stop all new offshore oil leases in federal waters on the West Coast. The bill has identical companion legislation in the Senate, sponsored by all six West Coast Senators, including California Senators Barbara Boxer and Diane Feinstein. Governor Schwarzenegger recently announced his opposition to new drilling off California’s coast despite the lure of as much as $100 million for the state’s coffers. However, we cannot be sure that the legislature will be able to act quickly enough nor that future governors will put the welfare of the state’s coastline and marine resources ahead of crass financial considerations. We are disappointed to see the bill encourage governors to trade off their states’ economic and environmental well-being with an activity that is so dangerous and deadly for our coasts, marine life, and fishing industry.

California continues to set the pace.

The bill as introduced by Sens. Kerry and Lieberman has several important implications for our ongoing work to build a clean energy economy here in California. We don’t have time to waste and we are working hard for Congress to act this year on comprehensive climate legislation, but California can and should move forward, regardless, with clean energy and global warming pollution reduction strategies and implementation of AB 32.

California has been and should continue to be a leader in putting clean cars on the roads, in giving Californians the option to pursue the cleanest forms of transportation and powering our homes and businesses with clean energy.