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Mary Nichols, CARB Chairwoman (Photo: youtube)

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

‘Because issues are too complex for the public to understand’

By Katy Grimes, June 17, 2019 7:41 am

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.

California Government Exemptions at the Highest Levels 

This isn’t the first time the ARB has found itself exempted from the Open Meetings Act. In 2012, Mary Nichols, the director of the California Air Resources Board, with help from then-Democratic Assembly Speaker John Perez, D-Los Angeles, figured out a way to exempt itself from the state’s open meeting act. SB 1018 specifically exempted CARB from open meeting rules in upcoming cap-and-trade auctions, allowing CARB’s Western Climate Initiative, Inc. to manage carbon trading auctions without any public scrutiny.The outrage comes from the sole purpose of WCI Inc. — to impose hidden taxes on energy customers, as well as large and small businesses, without accountability or public knowledge.

This was another stunning example of California Democrats doing whatever they can to operate in secret.

Government Code 11120, the Bagley-Keene Open Meeting Act, was explicitly exempted in the language of budget trailer bill SB 1018.  “That was the final nail in the coffin of transparency,” a Capitol staffer commented.

“The latest government cover up is transparency issue specifically with WCI, Inc., the corporation created by California Air Resources Board to manage the upcoming cap and trade auctions,” I wrote in 2012. “The problem is that Western Climate Initiative Inc. was formed in Delaware. However, Delaware is not subject to California state open meeting or sunshine laws, leaving many questioning why CARB opted for such secrecy. The only reason to register the corporation in Delaware is the lack public or legislative scrutiny on any of their meetings or actions they take.”

Known formally as the Bagley-Keene Open Meeting Act, it officially implements a provision of the California Constitution which declares that “the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny,” and explicitly mandates open meetings for California state agencies, boards and commissions, according to Ballotpedia.

If that is not enough clarity, the open records act also reaffirms, “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

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8 thoughts on “CalEPA and California Air Board Exempted In Budget From Open Meetings Law – Again

  1. Thank you Katy for dragging this disgusting stuff out of the basement and into the light.
    At the first link one sees all the usual suspect names on this budget trailer bill.
    After we have endured so many abuses from these people, it may seem almost passe to point it out, but it nevertheless remains completely unacceptable that ANYONE in any agency or elected office would dare to justify sneaky legislation “because issues are too complex for the public to understand,” and “the citizens of this state will get in their way.” (!!!)

    1. If an issue is too complex for the public to understand and people outside the agency might get in the way, then either the issue has not been properly understood to its most basic and fundamental issues or there is such rampant incompetence that they are afraid people who know better will call them out for their inability to assess the issues correctly and come up with sensible solutions that do not violate the rights of the governed.

  2. “because issues are too complex for the public to understand,” and “the citizens of this state will get in their way,”

    That can be read as: people with common sense will see through us and experts outside our influence will call us on our poor science and conclusions.

  3. We wouldn’t even have known about this if Katy Grimes hadn’t found the needle in the haystack and reported on it.

    These scoundrels are telling us UP FRONT that they are unscrupulous. Why else would they go WAY out of their way to set up WCI Corporation in no-transparency Delaware and then sneak around exempting themselves from open meeting laws in a budget trailer bill not meant for this purpose?

    They know EXACTLY what they are doing and we should conclude from these actions alone that they have a lot to hide…. and that they anticipate having a lot MORE to hide.

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