The 2022 Environmental Legislative Session: Ramping up Climate Ambitions
By Gary A. Lucks
Although Governor Newsom signed fewer environmental bills than typical in an off-cycle election year, the 2022 legislative session produced an unusually high number of far-reaching climate policies. At the beginning of the session, a Senate Climate Working Group was formed to advance efforts to tackle the climate crisis by developing a comprehensive legislative climate package designed to achieve substantial greenhouse gas (GHG) emission reductions by 2030.
In a highly unusual move, Governor Newsom injected himself into the legislative process in the waning days of the summer session, informing the Legislature he intended to actively advance ambitious climate policy. He delivered a five-pillar plan laying out a road map to achieve a clean energy future by 1) facilitating the state’s 2030 GHG emission reduction goal; 2) codifying a 2045 carbon neutrality goal; 3) establishing interim clean electricity milestones; 4) creating a streamlined carbon capture, utilization, and storage (CCUS) permitting program; and 5) protecting the public from the health and safety impacts of fossil fuel wells. With the exception of AB 2133 (Quirk), which would have advanced the 2030 climate goal, these pillars were signed into law.
This bounty of climate bills eclipsed other environmental policy proposals in 2022. Other legislative highlights include enactment of the watershed Plastic Pollution Prevention and Packaging Producer Responsibility Act aimed at dramatic reductions in single-use plastics and a new law requiring the Department of Toxic Substances Control (DTSC) to reevaluate its controversial method of determining whether a waste is a “toxic” hazardous waste. The Governor also signed legislation designed to speed up regulation of hazardous chemicals in consumer products under the moribund Green Chemistry program. The Legislature also served up two major programs aimed at expanding housing stock with the Middle-Class Housing Act of 2022 and the Affordable Housing and High Road Jobs Act of 2022. Finally, the Legislature delivered new laws aimed at increasing the pace and scale of prescribed burning to prevent wildfires while promoting wildlife connectivity to prevent wildlife-vehicle collisions.
Except for budget-related urgency laws that were passed by a supermajority (which took effect on the date of their signing), the enacted laws became effective on January 1, 2023.
II. CLIMATE CHANGE, ADAPTATION & RESILIENCY
California’s fourth Climate Change Assessment issued a dire warning forecasting dystopian outcomes by 2100. The report projects temperature increases ranging from 5.6 to 8.8 °F, a dramatic two-thirds loss of Sierra Nevada snowpack and southern California’s beaches, and a 77% increase in the average acreage burned by wildfires should we fail to significantly reduce GHG emissions in the coming decades. Reaching net zero GHG emissions is the lynchpin for achieving the state’s climate goals and will be necessary to keep the global average temperature below 1.5 °C preindustrial levels.
In 2018, Governor Jerry Brown signed executive order (EO) B-55-18 establishing a state goal of achieving carbon neutrality by 2045. This EO did not embrace the more ambitious goal of “net zero” GHG emissions. Net zero involves reaching zero GHG emissions or offsetting all GHG emissions beyond just carbon and includes other GHGs such as nitrous oxide and other hydrofluorocarbons. AB 1279 (Maratsuchi) further expands upon that EO by enacting the California Climate Crisis Act, which expands state policy to achieve net zero GHG emissions as soon as possible and no later than 2045. This new law additionally declares that the state must maintain net negative GHG emissions after 2045 and reduce anthropogenic GHG emissions by at least 85% below the 1990 levels. SB 1203 (Becker) is another net zero bill that advances a more ambitious target for state operations mandating that California agencies achieve net zero emissions for state activities by 2035—ten years sooner than previously required.
SB 1020 (Laird) facilitates the state target of achieving 100% renewable and carbon-free electricity for retail sales by 2045. The new law adjusts this policy by establishing interim renewable and zero-carbon energy targets as follows: 90% of electricity sold to retail customers by 2035 and 95% by the end of 2040. Additionally, except for the energy-intensive State Water Project, this new law aligns with the policy established in SB 1203 (above) and requires that California advance its 100% clean energy goal by ten years, to 2035.
To achieve carbon neutrality by 2045, the California Air Resources Board (ARB) published its 2022 Scoping Plan blueprint calling for the reduction of oil use by 94% from 2022 levels by 2045 and cutting carbon emissions 48% below 1990 levels by 2030. The Scoping Plan also emphasizes strategies to remove carbon, including carbon sequestration (e.g., by planting trees) and carbon capture and storage for California’s oil refineries and cement, clay, glass, and stone manufacturers. AB 1757 (C. Garcia) further promotes natural carbon sequestration on the state’s “natural and working lands” by requiring the Natural Resources Agency to establish priorities to implement the “30x30” goal established by EO N-82-20—conserving 30% of state lands and coastal waters by 2030—to restore California’s biodiversity while reducing carbon emissions. Natural and working lands are ideally suited to sequestering carbon in California’s forests, grasslands, freshwater and riparian systems, wetlands, coastal and estuarine areas, wildlands, and farms.
SB 905 (Caballero) offers a significant tool to achieve net zero carbon emissions, directing the ARB to establish a streamlined permitting program to safely deploy CCUS to remove carbon using natural and engineered technologies. Under this program, state agencies must roll out a single, unified permit application; however, the permitting program must not impair or alter the California Environmental Quality Act (CEQA) process in evaluating carbon dioxide capture, removal, or sequestration projects (CO2 projects).
Permit applicants must demonstrate their CCUS project will not create “significant air quality, water quality and soil pollution impacts to residents.” CO2 project operators are required to measure and minimize potential toxic air contaminants (TACs) and criteria air pollutants from the CO2 project and submit an air monitoring and mitigation plan to the ARB. They must also demonstrate that the “risk of CO2 leakage poses no material threat to public health, safety, and the environment and to achievement of net zero GHG emissions in California.” If other monitoring indicates an increased seismic risk from CO2 leakage, the ARB is empowered to require operational changes or a pause in operations.
Hydrofluorocarbons (HFCs) are short-lived climate pollutants (with an average 15-year lifetime compared to CO2 with a 100-year lifespan) with high global warming potential (GWP). Most HFCs have exceedingly high GWP at 1,000 times that of CO2. SB 1206 (Skinner) strengthens SB 1383 (Stats. 2016), which required the ARB to lower HFC emissions 40% below 2030 from 2013 levels. The ARB promulgated the Refrigerant Management Program (RMP) regulations to implement this mandate, which require facilities with refrigeration systems containing more than 50 pounds of high-GWP refrigerant to, among other things, register with the ARB, perform periodic leak inspections and repairs, and file annual performance reports. Notwithstanding, the RMP does not address the inevitable HFC leaks from existing refrigeration equipment. SB 1206 was enacted to close this gap by regulating bulk HFCs used to replenish the emitted gases and is designed to incentivize management of HFCs for equipment owned by the State of California. Specifically, this law prohibits state-owned systems from replenishing leaked refrigerants with GWP greater than 750. SB 1206 also bans the sale or distribution of bulk HFCs exceeding 2,200 GWP beginning in 2025, 1,500 GWP by 2030, and 750 GWP by 2033.
Immediately after the close of the session, California voters weighed in on Proposition 30 (the Tax on Income Above $2 Million for Zero-Emissions Vehicles and Wildfire Prevention Initiative), which would have raised personal income taxes on wealthy Californians to fund zero-emission vehicle purchases and supporting infrastructure along with wildfire suppression and prevention programs. The initiative was opposed by the Governor and was defeated at the ballot box. Governor Newsom nonetheless allocated $7.6 billion from the budget surplus to support electric vehicle charging infrastructure, including financial incentives to purchase electric vehicles and electric school buses. Overall, the Governor approved an unprecedented $54 billion funding boost to support climate resiliency relating to sea level rise, wildfire mitigation, and extreme heat and drought. In addition to the electric vehicle funding, other carbon investments included $970 million for solar energy storage and $1.4 billion to restore natural and working lands for carbon uptake.
Oil companies commonly engage in Enhanced Oil Recovery (EOR), capturing carbon that is injected underground to recover oil that would be otherwise less accessible. This practice emits 3.7 to 4.7 times more carbon than it captures. As a result, SB 905 (discussed above) and SB 1314 (Limón) were introduced to prohibit CO2 project operators from injecting concentrated CO2 fluid from a CO2 project into a Safe Drinking Water Act Class II injection well for EOR purposes.
California oil companies earned record profits during the uncommonly high inflationary period in 2022, where the average price per gallon of gas in California exceeded six dollars per gallon—$1.38 beyond the national average. Governor Newsom responded by calling a special legislative session to cap the “windfall profits” of California oil companies, resulting in SBX1-2 (Skinner). This new law authorizes the Energy Resources Conservation and Development Commission (CEC) with its new division of Petroleum Market Oversight to require oil companies to share information about their operations and pricing and to fine those exceeding a specified price limit.
Oil and gas development is known to emit probable or possible carcinogens such as benzene, toluene, ethylbenzene, xylenes, hexane and formaldehyde. The California Oil and Gas Public Health Rulemaking Scientific Advisory Panel, an advisory body to the California Geologic Energy Management Division (CalGEM)—which oversees oil and gas development in the state—found that exposure to oil and gas development results in significant adverse health effects ranging from poor birth outcomes to asthma in nearby communities. With over five million Californians living within one mile of an oil and gas well, SB 1137 (Gonzalez) was enacted to establish a 3,200-foot setback (known as a “health protective zone”) from new and reworked oil and gas wells to protect sensitive receptors such as homes, hospitals, and school populations from exposure to harmful levels of air and water pollution. With some exceptions, this environmental justice law prohibits issuance of a CalGEM “notice of intention” to drill for oil and gas within 3,200 feet of a sensitive receptor.
By July 1, 2023, all well operators must submit a map, including the sensitive receptors within the health protection zone, to CalGEM. Oil or gas production facilities located within a health protection zone must meet specified health, safety, and environmental requirements and engage in water sampling and community notifications. Operators of production facilities or wellheads in a health protection zone must monitor for leaks of targeted chemicals and develop a response plan. By January 1, 2025, all oil or gas production facilities with a wellhead in a health protection zone must, among other things, also limit sound levels and light generation while implementing dust prevention measures. Those facilities that do not meet air district requirements must cease operations and submit sampling results of produced water. With the ink barely dry, an oil-backed industry group qualified a November 2024 ballot initiative to overturn SB 1137.
The Governor approved two new laws to help assure energy reliability and meet the growing demand for electricity. SB 846 (Dodd) was introduced in response to the threat of an energy shortage during the summer of 2022. This new law extends the operation of the Diablo Canyon Nuclear power plant (DCPP) from 2024 (Unit One) and 2025 (Unit Two) for up to five more years, along with expedited permitting to facilitate relicensing of DCPP while exempting the power plant from CEQA.
AB 205 (Committee on Budget) is an urgency trailer bill that establishes a demand-side management program designed to incentivize ratepayers to reduce energy consumption during extreme energy demand events. Under this law, the CEC is also authorized to implement the “Long Duration Storage Program,” which provides financial incentives to support energy storage projects that provide at least eight hours of continuous electricity delivery to the electrical grid. This new law additionally establishes the Strategic Reliability Reserve that authorizes the Department of Water Resources (DWR) to secure additional electrical generation capacity (e.g., new energy storage systems, new emergency and temporary generators, and generation facilities using clean and zero-emission fuel technology generation) during “extreme events” affecting the electrical grid. This new law additionally creates the Distributed Electricity Backup Assets Program to incentivize the deployment of cleaner and more efficient sources of distributed energy during extreme electrical demand.
Most notably, this new law establishes a consolidated CEC permitting program—which overrides local, state, and federal permits, except specified state leases—to fast-track permitting of solar photovoltaic, terrestrial wind power plants, large-scale energy storage systems, and thermal power plants (not using fossil or nuclear fuels) with generating capacity of at least 50 megawatts and the expansion of energy transmission from these facilities. These projects are eligible for expedited judicial CEQA review, with the CEC serving as the lead agency. In addition, this consolidated permit program supports the manufacture and assembly of these energy projects. To be eligible, a project must qualify as an “environmental leadership” project pursuant to the Jobs and Economic Improvement Through Environmental Leadership Act of 2021.
V. AIR QUALITY
AB 617 (Stats. 2017) was a seminal environmental justice law designed to improve air quality in disadvantaged communities. That law required the ARB to develop a strategy to reduce toxic air contaminants (TACs) and criteria pollutants in communities experiencing high concentrations of these air pollutants. The strategy calls for identifying communities exposed to high levels of cumulative air pollution and completing community emissions reduction programs (CERPs) to reduce emissions of criteria pollutants and TACs. AB 1749 (C. Garcia) provides an additional year to develop CERPs and requires the ARB to identify additional strategies to reduce criteria air pollutants and TACs.
V. SOLID WASTE OR WASTE MANAGEMENT
After several years of almost passing game-changing legislation to ban single-use plastics, the Legislature overcame relentless opposition from the plastics and petroleum industry, and the environmental community won the long game. The Legislature approved the Plastic Pollution Prevention and Packaging Producer Responsibility Act, SB 54 (Allen), which aims to reduce plastics from certain single-use packaging and plastic single-use food service ware. This new law requires that these items be recyclable or compostable by 2032, with interim recycling rate targets to achieve progress over the next decade. AB 2784 (Ting) would have established minimum recycled content requirements for thermoform plastics. The Governor vetoed this legislation, stating that his signature on SB 54 obviated the need for it, as SB 54 represented the “most significant overhaul of California’s plastic and packaging recycling policy in state history and goes further than any other state on cutting plastics production at the source.”
Municipalities have been required to meet organic waste procurement targets pursuant to SB 1383 (Stats. 2016). AB 1985 (R. Rivas) amended this law permitting CalRecycle to adjust the recovered organic procurement target by doubling the amount of renewable gas procured from a publicly owned treatment works allowed to count towards its procurement target. The new law additionally delays the enforcement timeline for municipalities that fail to comply with the program implementation schedule.
AB 1857 (C. Garcia), the Zero Waste Transition Act of 2022, amends the landmark Integrated Waste Management Act (Stats. 1989, AB 939 [Sher]), which required municipalities in California to “divert” at least 50% of its nonhazardous, solid waste from Class III landfills. Since the inception of the law, cities and counties were permitted to count up to 10% of their diversion target via “transformation,” which encouraged the incineration of solid waste at waste-to-energy facilities. The bill analysis for AB 1857 states that “transformation facilities produce very little energy, emit more CO2 per megawatt hour than coal power plants and stand in the way of cleaner and more sustainable methods of waste management and a zero-waste future…while polluting the environment and harming public health in predominantly low-income communities and communities of color.” AB 1857 repeals the portion of the Integrated Waste Management Act that permitted “transformation”/incineration to count toward diversion goals.
VI. HAZARDOUS WASTE
According to Assemblymember Quirk, California’s unique method of determining whether a waste is a hazardous waste due to toxicity “was developed in the 1980s and has not been refined since, despite significant scientific advances. When waste generators decide not to perform …. [the fish bioassay test], they must [manage] their waste as hazardous by default. This leads to over-classification of waste as hazardous despite potentially being harmless to aquatic life.” Assemblymember Quirk authored AB 1793 to require DTSC to evaluate alternative methods of determining toxicity as part of the newly established comprehensive evaluation of guidelines for determining whether wastes are hazardous waste. DTSC must then include its recommendation for determining toxicity in its hazardous waste management plan.
AB 2481 (Smith) makes several adjustments to resolve ambiguities with respect to rules governing household hazardous wastes. This new law permits the transportation of hazardous waste from one household hazardous waste collection facility to another using a bill of lading in lieu of a hazardous waste manifest. This new law permits a person to transport household hazardous waste generated by someone else for delivery to a collection facility where the generator is unable or unavailable to transport the waste due to death, illness, or disability. AB 2481 also allows a household hazardous waste collection facility to accept more than 100 kilograms of hazardous waste at a time from a “very small quantity generator” and up to 1,200 kilograms in a calendar year. However, these volume limitations exclude the collection of latex and oil-based paint deliveries.
VII. HAZARDOUS MATERIALS
With great fanfare, Governor Schwarzenegger signed the green chemistry law, AB 1879 (Stats. 2008), which authorized the DTSC to identify and prioritize “chemicals of concern” for potential restriction while evaluating alternatives to hazardous chemicals. According to Senator Allen, “After twelve years, not a single chemical has made it through the third stage of California’s green chemistry framework due to data gaps that hinder agency decision-making.” He responded by authoring SB 502, which is designed to improve the speed at which data is collected by allowing DTSC to access industry data on product ingredients. This new law authorizes the DTSC to access publicly available studies evaluating alternatives to chemicals of concern in product literature that is already available instead of requiring DTSC to rely solely on its own research. The law is also intended to accelerate the regulatory process by 1) eliminating the informal dispute resolution and administrative appeal process governing chemical listing decisions and 2) limiting the DTSC chemical evaluation timeline to seven years. Finally, this new law empowers DTSC to issue a civil penalty of up to $50,000 for companies that violate the green chemistry law.
The United States Environmental Protection Agency and California have been out front in regulating perfluoroalkyl and polyfluoroalkyl substances (PFAS), known as “forever chemicals.” This family of chemicals is believed to cause significant health effects including decreased fertility, developmental defects, increased cancer risk, suppression of the immune system, and disruption of the endocrine system. According to the DTSC, “[m]ost waste or end-of-life converted textiles or leathers in California are disposed of in landfills, where they become sources of PFAS to the environment via leachates and gaseous emissions. Wastewater treatment plants that collect … surface runoff, and residential and commercial wastewater do not effectively remove PFASs. As a result, when wastewater effluent is discharged into surface waters, PFASs are released into the environment, contaminating aquatic ecosystems and drinking water sources.” The California Legislature has already prohibited the sale and distribution of new juvenile products that contain regulated PFAS (Stats. 2021, AB 652 [Friedman]) and cooking ware (Stats 2021, AB 1200 [Ting]), and banned PFAS in firefighting foam (Stats. 2020, SB 1044, [(Allen]).
This year, the Legislature added two more types of products to the ban on PFAS. AB 1817 (Ting) expands the PFAS ban to the textile industry. This new law prohibits the manufacture, distribution and sale of textiles that contain PFAS by 2025 while requiring textile manufacturers to use the least toxic alternative in lieu of PFAS. PFAS in personal care products poses a potentially even higher risk of exposure due to the dermal, inhalation, and ingestion pathways of chemicals present in lipsticks, mascaras, creams, lotions, and emulsions. Assemblymember Friedman advanced AB 2771 to prohibit the manufacture or sale of cosmetic products containing added PFAS chemicals.
According to Senator Newman, “When improperly discarded, lithium-ion batteries in particular pose serious fire, health and safety hazards…. Currently, an estimated 75-92% of lithium-ion batteries are disposed of improperly.” SB 1215 expands [the scope of] the Electronic Waste Recycling Act to include battery embedded products which requires retailers selling a “covered electronic device.” With this new law, in addition to collecting a recycling fee for video monitors at the point of sale, retailers will be required to collect a “covered electronic waste recycling fee” at the point of sale for lithium batteries. These funds will support recycling the battery components. AB 2440 (Irwin), the Responsible Battery Recycling Act of 2022, is another battery management law that establishes an extended producer responsibility program for batteries. This new law requires battery producers to develop or participate in a DTSC-approved stewardship program to collect and recycle batteries, including lithium-ion batteries.
AB 2059 (Carrillo) was introduced in response to a structure fire that led to a large explosion at a Los Angeles wholesale distributor that failed to disclose the presence of quantities of butane at the site. This new law is intended to address confusion surrounding whether a distribution facility that moves consumer products in bulk can claim an exemption from chemical reporting under a hazardous materials business plan (HMBP) for retail operations. The new law also authorizes certified unified program agencies (CUPAs) to determine, at their discretion, whether to require HMBP reporting of consumer products sold at a “retail establishment.” Discretion is limited to products with a National Fire Protection Association or Hazardous Materials Identification System rating of 3 or 4 in quantities equal to, or product amounts greater than, 165 gallons for a liquid, 600 cubic feet for a gas, and 1,500 pounds for a solid. In addition, specified manufacturers, distributors and wholesalers must maintain records of sales of hazardous materials in the quantities referenced above during any 30-day period.
AB 1658 (Nguyen) amends the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act by requiring CUPAs with an oil spill element or plan connected with managing chemicals in proximity to waters of the state to ensure the element is consistent with federal National Contingency Plan pursuant to the federal Clean Water Act, local government's local coastal program, and the California oil spill contingency plan.
VIII. CEQA AND HOUSING
The Legislature remains keenly focused on the state’s housing crisis that has priced large swaths of Californians out of the housing market, with over 150,000 unhoused Californians. The most recent Statewide Housing Plan projects that 2.5 million new housing units will be necessary to meet the demand in the next eight years, including one million affordable housing units. AB 2011 (Wicks) builds on the Legislature’s concerted effort in recent years to create the conditions to dramatically expand affordable housing stock. This new law enacts the “Affordable Housing and High Road Jobs Act of 2022,” which is designed to streamline the permitting process to advance 100% affordable and mixed-income housing and multi-family projects zoned for office, retail, or parking along commercial corridors. The act requires housing to be “by right” via ministerial approval for housing projects meeting specified affordability, location, and objectives standards. Mixed-income housing projects must comply with specified density, height, and setback limits. Up to 15% of their affordable units must be available for rent to lower-income households with very-low incomes and extremely low-income households. All these housing developments must be infill developments and must not be located in environmentally unsafe or sensitive areas.
SB 6 (Caballero) creates the Middle-Class Housing Act of 2022, which further streamlines the approval of new housing units. This new law permits housing in areas zoned for retail, office, and parking to fill the gap created by the loss of brick-and-mortar retail establishments brought on by the lure of online purchasing and aggravated by COVID-19. According to Senator Caballero, this new law allows “cities to approve, through an expedited process, the reuse of infill property zoned for retail and office space for residential construction. [This new law] allows for the transformation of underperforming commercial sites into mixed-use use centers with residential units, with some affordability restrictions, often in locations that are well connected to major transportation routes.” To be eligible for streamlined approvals, housing projects must meet specified density, public notice, comment, hearing, site location and size requirements and be consistent with sustainable community strategy plans.
This legislative session yielded several new CEQA exemptions. SB 886 (Wiener) was enacted in response to a 2022 appellate court decision (Save Berkeley’s Neighborhoods v. The Regents of the University of California) that required UC Berkeley to mitigate environmental impacts associated with increased enrollment. This new law provides a narrow CEQA exemption for projects involving faculty and staff housing at public universities that is consistent with the most recent long-range development plan (LRDP) environmental impact report (EIR) or master plan EIR and any applicable tiered environmental analysis so long as the project meets specified conditions (e.g., buildings are LEED platinum or better). SB 886 additionally advances transparency with the public by requiring public universities to convene at least one public hearing to entertain public comments.
SB 118 (Committee on Budget and Fiscal Review), a budget trailer bill, removed the requirement that environmental effects relating to changes in enrollment levels be considered in the LRDP’s EIR and provided that enrollment, by itself, does not constitute a project for purposes of CEQA. Should a court rule that campus population increases exceed projections in the most recent LRDP that were addressed in the supporting EIR, and those increases will result in significant environmental impacts, the court is authorized to require the university to prepare a new supplemental or subsequent EIR.
AB 211 (Committee on Budget) is an omnibus resources trailer bill that effectuates the 2022 Budget Act. This bill extends a CEQA exemption set to expire on January 1, 2023, for Prescribed Fire, Reforestation, Habitat Restoration, Thinning, and Fuel Reduction Projects. AB 211 additionally increases the scope of the exemption for prescribed burning projects on federal lands and tribal cultural burning projects.
SB 922 (Wiener) makes adjustments to a recently established CEQA exemption (Stats. 2020 SB 288 [Weiner]) governing infrastructure, bicycle, and pedestrian projects. The amendments, among other tweaks, expand the CEQA exemption to include infrastructure for zero-emission trains and ferries while requiring public notice requirements for transportation projects exceeding $50 million. For projects exceeding $100 million, local agencies must analyze the implications associated with residential displacement and recommend strategies to mitigate these impacts.
Finally, AB 1642 (Salas) responded to a 2020 California Supreme Court ruling that held that water well replacement projects are “discretionary” projects under CEQA, resulting in the elongation of the permitting process. The arguments in the bill analysis supporting AB 1642 state that “[d]ue to the time-sensitive nature of domestic water well projects and other groundwater system projects, streamlined permitting is necessary to ensure residents can maintain access to safe and clean drinking water.” AB 1642 responds by creating a narrow CEQA exemption for water system well and domestic well projects designated by the State Water Resources Control Board (SWRCB) as at high risk or medium risk of failure.
SB 1291 (Archuleta) is modeled after AB 1236 (Stats. 2015), which streamlines local agency approval of electric vehicle charging station projects. This new law requires cities and counties to provide ministerial review of applications for hydrogen-fueling stations that are zoned for industrial or commercial uses or that were previously developed as service stations and limit review to the building official. Permit denials are allowed only if based on findings of adverse health or safety impacts where there is no “feasible method to satisfactorily mitigate or avoid the specific, adverse impact.”
In an effort to “reduce traffic, greenhouse gas emissions, and air pollution, reduce the cost of housing,” AB 2097 (Friedman) prohibits cities and counties from imposing minimum parking requirements on new residential, commercial developments located within one-half mile of public transit. According to Assemblymember Friedman, this new law “would give [property owners] flexibility to decide on their own how much on-site parking to provide, instead of requiring them to comply with a one-size-fits-all mandate.”
X. WATER USE AND SUPPLY
Governor Newsom recently published an updated State Water Plan to get ahead of projected future water reductions of 10% less water by 2040. Even as the state enjoys a current reprieve from crippling drought with the state’s reservoirs at or near capacity, the unprecedented number of atmospheric rivers nonetheless highlighted how much water bypasses the state’s aquifers and travels to the ocean. This controversial plan, among other things, envisions increasing the capacity of 120 of California’s existing reservoirs and expanding water capture that would otherwise flow to the ocean.
AB 1164 (Flora) responded to a public irrigation district’s argument that smaller agricultural reservoirs do not warrant the same level of regulatory rigor as large dams. AB 1164 creates a new classification for smaller publicly owned agricultural reservoirs, or “regulating basins,” and exempts them from being regulated by DWR’s California Division of Safety of Dams as “jurisdictional dams” based on the reduced risk of failure.
After decades of going it alone, California joined its western neighbors in 2014 and enacted the Sustainable Groundwater Management Act (SGMA)—its own version of groundwater sustainability legislation. The following year, anticipating that SGMA would invite conflicts over groundwater, it enacted AB 1390 (Alejo) and SB 226 (Pavley), which established a streamlined process for adjudicating groundwater disputes. This year, SB 1372 (Stern) was enacted to clarify that DWR approval of a groundwater sustainability plan is not an endorsement that the allocation is consistent with groundwater law.
SB 1157 (Hertzberg) raises the bar for a recent California water conservation law (Stats. 2017, AB 1668 [Friedman]) that established a 55-gallon per capita daily (gpcd) goal for indoor residential water use by 2025 and 52.5 gpcd by 2030. This new law strengthens the water conservation standard by dropping it to 47 gpcd by 2025 and 42 gpcd beginning in 2030.
AB 2108 (R. Rivas) is intended to advance environmental justice associated with water quality policy in California. This new law adds to the board of directors of the SWRCB and the regional water quality control boards a member with environmental justice or tribal expertise. AB 2108 also prioritizes enforcement in disadvantaged communities and requires the SWRCB and regional boards to promote meaningful community engagement with low-income and tribal communities to identify issues of environmental justice. The agencies must then take into consideration environmental justice considerations when developing plans or policies, waste discharge requirement permits, or waivers of waste discharge.
XI. NATURAL RESOURCES AND WILDFIRE
According to data from the California Highway Patrol, more than 8,000 large game wildlife-vehicle collisions have occurred statewide from 2014 to 2020, resulting in over 1,500 injuries and at least 24 fatalities to motorists and passengers. In 2020, the Department of Fish and Wildlife released a list of priority wildlife movement barriers in the state. Of the 61 highest priority segments identified, 58 are part of the state highway system. AB 2344 (Friedman) creates the Transportation Wildlife Connectivity Remediation Program at Caltrans, which requires the agency to identify potential wildlife connectivity barriers to fish and wildlife migration, such as road or stream crossings, irrigation diversions, and dams.
AB 1832 (L. Rivas) enacted the Seabed Mining Prevention Act to preserve the integrity of the deep-sea ecosystem. Deep sea mining targets metals including manganese, copper, nickel, zinc and copper, which impact the sea floor, affect water quality and kill marine life. This new law prohibits deep sea mining within California’s jurisdictional waters 650 feet or deeper. AB 1832 specifically prohibits the State Lands Commission and local trustees from issuing leases and permits to extract or remove hard minerals within three miles of the shoreline.
SB 926 (Dodd) is an urgency law that creates the Prescribed Fire Liability Pilot program. This program is designed to expand the pace and scale of prescribed fire and cultural burning projects. This new law provides liability protection by insuring up to $2 million dollars for losses associated with prescribed burns by cultural fire practitioners, private landowners, and nongovernmental entities. To better manage wildfire risk, SB 884 (McGuire) requires the California Public Utilities Commission to establish an expedited electric utility distribution infrastructure undergrounding program for electrical utilities serving 250,000 or more accounts to manage wildfire risk in tier 2 or 3 high-fire-threat districts.
XII. LOOKING AHEAD
With the failed attempt to recall him in the rearview, Governor Newsom enjoys a fully stocked Legislature with historically high, ultra-super majorities of Democrats and a California League of Conservation Voters approval north of 80%. As the 2023 legislative session began, the Legislative branch was filled with a large new crop of legislators poised to advance big ideas. The session has already seen another run at Senator Weiner’s “Climate Corporate Accountability Act” (see SB 253 (Weiner) that would require companies doing business in California with at least one billion dollars in revenue to publicize their Scope 1, 2, and 3 Climate emissions. Scope 3 emissions, the most controversial, include indirect emissions generated from an organization’s supply chain, such as purchased goods and services, business travel, and employee commutes. Other areas of legislative focus are drought, water storage, wildfires, and extreme heat.
These ambitions, however, may be weighed down by the state’s financial picture. California is facing budgetary whiplash from a $100 plus billion-dollar surplus last year compared to a projected $25 billion projected deficit this year. If the estimate from the nonpartisan Legislative Analyst Office bears out, the Governor and Legislature will face unenviable fiscal choices necessary to balance the budget. Fortunately, the Treasury is buoyed by a $23 billion “general purpose reserve” that can offset some or all the projected shortfall and allow the new faces in the Legislature to focus on policy.
Gary Lucks, JD, CPEA, serves on California Lawyers Association's Environmental Law Section Executive Committee and has also served on the Environmental Legislation Committee for three decades. He is a partner with Bay Law Group LLP and a Certified Professional Environmental Auditor (CPEA) with over 38 years of experience in environmental, health, and safety law, legislative affairs, and sustainability strategy.