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.

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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:

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  • 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. 
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  • 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.