SB 288 – The Price of a Political Statement

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, July 18, 2003 Share this on FacebookTweet thisEmail this to a friend

SB 288, one of Senator Byron Sher’s (D-Stanford) environmental legacy bills, sits in the Assembly Appropriations cue, awaiting a late August hearing. The bill deals with an arcane air emissions reduction program known as “new source review” (NSR), which generally applies to new industrial facilities and existing ones that undertake modifications or add new process equipment. The program is implemented in certain areas of the state, such as the L.A. Basin, that do not comply with federal air emission standards. Sources subject to the program are required to the install best available control technology and offset post-project emissions by making other in-plant reductions or purchasing emission reduction credits.

The NSR program was the source of significant national debate during the latter half of the Clinton Administration, culminating in regulations adopted by the Bush Administration earlier this year. At the heart of the NSR debate is the concern that program complexity and cost conspire to discourage plant operators from investing in new, more efficient process equipment, thereby sacrificing emission reduction opportunities.

Enter SB 288, which is first and foremost a political reaction to a perceived attack on California’s environmental policies by the Bush administration. The bill would lock in current local air district NSR programs to prevent implementation of the federal reforms. The environmental groups sponsoring the bill claim that this action is necessary to avoid backsliding on air quality. USEPA, at least informally, has a very different take on the bill. In fact, staff at the Bay Area air quality management district recently advised Board members that based on discussions with USEPA staff, if the current version of SB 288 were to become law, California air districts could lose their authority to implement NSR. USEPA’s rationale is that the federal regulations, by incentivizing plant improvements, will create additional emission reductions and therefore, on an air quality basis, are more stringent than existing district programs. Under federal law, if USEPA deems state programs deficient, those areas are subject to sanctions including loss of federal highway funds (80% of California’s transportation funding comes from the federal government) and higher emission offset ratios for regulated facilities. At a minimum, such action would require regulated facilities to comply with two different programs.

SB 288 would also create new citizen suit authority for violations of NSR program requirements. This authority would apply much more broadly than the authority under the federal Clean Air Act. In an effort to quash opposition from the air districts, Senator Sher amended the bill to limit citizen suit exposure only to regulated facilities. Despite the emerging concern noted above, and drafting problems that would create confusion in the permitting process, the districts have thus far taken a “support in concept” position on the bill. Their position is also short sighted from the standpoint that any post-288 changes in local NSR programs would have to be approved by the Legislature.

The Legislature should allow the air districts time to evaluate the federal reforms through a public process and make an informed judgment as to their impact on regional and statewide air quality.
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