California is supposed to be leading the nation in climate change mitigation, backed by effective legislation and decisive action. But the state legislature still has not passed the California Climate Crisis Act. The law would codify certain actions the state needs to take to meet its stated climate goals and strengthen enforcement criteria for non-compliance. On the last day of the 2021 legislative session in September, the bill failed. Out of a body of 40 state senators, with 21 votes needed to pass, only 14 out of 31 Democrats voted for it. All the Republicans voted against it, and 14 senators did not vote on it at all. Three Democrats voted against it. The vote to reconsider the bill did pass, so it will be on the docket again when the legislative session opens in January 2022. Another opportunity to take action pushed down the road.
So what’s in this bill that’s causing state senators to go wishy-washy on climate action? Why are they allowing fossil fuel, business, and agricultural lobbyists to convince them now is not the time to act?
The Climate Crisis Act is actually quite short, as laws go. But it’s powerful. AB 1395 is written partially as an addendum to California Health and Safety code to protect all Californians from any adverse impacts of carbon dioxide removal technologies on local air quality and public health, particularly in low-income and disadvantaged communities. It states that “millions of Californians breathe unhealthy air.” It sets up an independent analysis of the State Air Resources Board’s progress on GHG emissions every two years, with reports available to the public. The bill would also require interim five-year GHG reduction goals to measure progress and implement criteria to hold agencies accountable. The bill states that California must find ways to reduce GHG emissions that go beyond carbon capture, employing nature-based solutions and an almost complete transition away from fossil fuels. And it sets into law the state’s goal for net-zero carbon emissions by 2045— currently declared as an Executive Order by Governor Jerry Brown in 2018, which lacks the permanent power of legislation.
AB 1395 regulates carbon capture and storage (CCS), which has been touted as a solution but has remained largely unregulated. The law requires the California Air Resources Board to “Consider the benefits, risks, and uncertainties associated with the use of carbon dioxide removal technologies and carbon capture and storage technologies, including, but not limited to, requirements for long-term financial assurances to mitigate for those risks and uncertainties.”
This threatens the plans of large polluters who want to keep emitting and somehow sequester the carbon—such as California’s oil and gas industry. New CCS technologies, such as injecting carbon into geological formations, are still in the early stages and it’s not yet known if they will have unexpected adverse effects. AB 1395 would require companies who want to use CCS technologies to consider the risks and take financial responsibility for long-term mitigation. The criteria for CCS regulation by AB 1395 would also “include robust monitoring, accounting, and annual reporting to the state board by the project owner. Reports shall describe environmental safeguards, account for uncertainty in any measurements, be verified by a state board-approved third-party verifier, and be made publicly available.” Though trade organizations and lobbyists frame their opposition in various ways, business groups are essentially lobbying to weasel out of these responsibilities.
In a television commercial produced by Western States Petroleum Association, an oil and gas lobby, a couple is driving along listening to news on the radio. The report clearly mentions AB 1395, and then it references the California Air Resources Board’s recommendation to raise prices on travel to encourage people to drive less. The man remarks to the woman, “They’re raising prices to force us to stay at home more.” The woman scowls and shakes her head in annoyance. Though AB 1395 does not contain a mandate for raising travel prices, and the bill is completely unrelated to any pandemic measures, the oil and gas lobby is attempting to link these concepts in voters’ minds, to distract from what’s actually in the bill.
The Building and Construction Trades Council Labor Group and other trade organizations framed the bill as an inhibitor to innovation of CCS technologies. Because of this concern, Democratic Assemblymember Luz Rivas, who is the chair of the California Assembly Natural Resources Committee, asked to remove a clause that limited polluters to using CCS for only 10% of their emissions reductions, and would have required them to find other solutions. The bill’s authors complied with her request.
Though the clause was removed, the California Chamber of Commerce still claims the bill would limit innovation by “signaling market forces not to develop carbon capture and storage technology.” This is because the technologies would have to meet certain criteria, and businesses would have to be fiscally responsible for the consequences of adopting such technologies. CalChamber doesn’t want businesses to have to pay. Furthermore, CalChamber said that AB 1395 would have “banned the use of carbon capture and sequestration in certain oil industries.” That’s not true.
More precisely, AB 1395 will “exclude the counting of captured carbon dioxide that is later injected into underground wells for the purpose of fossil fuel extraction, including, but not limited to, enhanced oil recovery, as a removal or reduction for the purposes of achieving the policy goals.” This prevents oil and gas companies from saying that they are capturing emissions, when those emissions will be released again later in the process of reactivating old oil wells.
“Also problematic,” said CalChamber, “is the bill’s banning of carbon capture where it would cause any ‘adverse impact’ — an undefined term that could be interpreted as broadly as similar terms have been, such as under the California Environmental Quality Act.” Again, it seems the Chamber would like businesses to remain free of responsibility for the harm they cause the environment.
In general, CalChamber prioritizes profit over the health of the environment: “The California Chamber of Commerce supports climate change laws and regulations that are cost-effective, technology-neutral, and promote the use of market-based strategies to reduce greenhouse gases (GHGs). The Legislature should ensure that any changes to California law safeguard the economy while having a demonstrable impact on GHG reduction and attract private capital to the state.”
Agricultural industry groups say the bill would be harmful to their businesses and communities. President of the California Farm Bureau Association Jamie Johansson posited that the increased requirement for carbon emissions is arbitrary, and requires hasty action that would leave rural communities without the infrastructure to make changes to their energy use. He also said that “In the end, growers are paid less for their produce because processors are footing the bill for major overhead to meet new energy policies. Large-scale farms are struggling, but it’s the little farm that is forced to fold up shop.” Perhaps Anna Caballero of Salinas, one of the three Democrats to vote against the bill, was swayed by these arguments. Salinas is one of California’s most productive agricultural areas.
But AB 1395 includes a mandate to “Seek to support the health and economic resiliency of urban and rural communities, particularly low-income and disadvantaged communities.” Agricultural business groups could choose to focus on holding the state accountable for that provision, and ask for support in implementing energy use and farming practices that help the state meet its climate goals.
Members of the California Assembly who did not vote on AB 1395 said they are awaiting the results of a current study by the California Air Resources Board (CARB). In the meantime, fossil fuel companies are investing billions of dollars in their own self-regulated carbon capture technologies.
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