CalEPA and California Air Board Exempted In Budget From Open Meetings Law – Again

The Omnibus Resources Trailer Bill for 2019-20, contains various statutory changes “necessary to implement the Budget Act of 2019.” Yet it contains language exempting a commission of the California Air Resources Board and CalEPA from the Bagley-Keene Open Meeting Act, essentially proposed “because issues are too complex for the public to understand,” and “the citizens of this state will get in their way,” according to a source close to the agencies who asked to remain anonymous.

Many are very worried that Gov. Gavin Newsom is rubber stamping everything Democrats want – and it certainly appears to be the case with the 2019-20 budget deal.

“The Independent Emissions Market Advisory Committee analyzes the environmental and economic performance of the state’s cap-and-trade program and other relevant climate policies, then reports its findings to the California Air Resources Board and the Joint Legislative Committee on Climate Change. It was established by Assembly Bill 398 in 2017 and held its first meeting on June 20, 2018,” according to CalEPA.

Former Gov. Jerry Brown established a “Climate Action Team,” who “work to coordinate statewide efforts to implement global warming emission reduction programs and the state’s Climate Adaptation Strategy. The CAT membersare state agency secretaries and the heads of agency, boards and departments, led by the Secretary of Cal/EPA.”

AB 85 and SB 85 bill analysis lists all of the different aspects of the bills, including the ARB exemption:

10) Independent Emissions Market Advisory Committee (IEMAC): Bagley Keene – Exempts the members of the IEMAC from the Bagley-Keene Act prohibition on serial conversations in order to provide them greater flexibility to communicate with each other when analyzing the effectiveness of the Cap-and-Trade program.

Language from both bills: AB 85 and SB 85

(5) The California Global Warming Solutions Act of 2006 establishes the State Air Resources Board as the state agency responsible for monitoring and regulating sources emitting greenhouse gases. That act requires the state board to approve a statewide greenhouse gas emissions limit equivalent to the statewide greenhouse gas emissions level in 1990 to be achieved by 2020 and to ensure that statewide greenhouse gas emissions are reduced to at least 40% below the 1990 level by 2030. The act authorizes the state board to include the use of market-based compliance mechanisms.

The act, until January 1, 2031, establishes the Independent Emissions Market Advisory Committee with a specified membership and requires the advisory committee to at least annually hold a public meeting and report to both the state board and the Joint Legislative Committee on Climate Change Policies on the environmental and economic performance of a specified market-based compliance mechanism and other relevant climate policies.

The Bagley-Keene Open Meeting Act, with specified exceptions, requires that all meetings of a state body be open and public and all persons be permitted to attend. The Bagley-Keene Open Meeting Act defines the term “meeting” to include any congregation of a majority of the members of a state body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the state body and specifically prohibits such a majority, outside of a meeting authorized by that act, from using a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body.

This bill would exempt the advisory committee from the prohibition on serial communications outside of an authorized meeting. The bill would also specify that the committee member representing the Legislative Analyst’s Office is a nonvoting member.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.