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Federal Climate Legislation May Complement State Efforts

With California's efforts to combat climate change well underway, another country is finally being heard from: the United States.

With the election of President Obama and the emergence of a Democratic majority in Congress, it appears that the federal government may soon pass sweeping legislation to address greenhouse gas emissions. Based on a preponderance of research linking greenhouse gas emissions to urban sprawl and reliance on automobiles, a national program may usher in the next great trend in urban planning. If so, California may find itself well ahead of its fellow states.

"California has really pushed the envelope," said Louise Bedsford, research fellow at the Public Policy Institute of California. "California has served as a model and probably will continue to do so even if federal legislation passes."

While the federal government has approached climate change with the trepidation of a skater venturing towards thin ice, California not only heeded its traditional environmental ethos but also acknowledged that the world's seventh-largest economy should play its part to mitigate climate change.

In 2006 AB 32, the Global Warming Solutions Act, authored by now-State Senator Fran Pavley (D-Agoura Hills), was hailed as landmark legislation, and it was followed up last year by State Senate President Pro Tem Darrel Steinberg's SB 375. AB 32 mandates a 25% reduction in greenhouse gas emissions, through a variety of means, as of 2020, while SB 375 pays specific attention to vehicle miles traveled and requires regional metropolitan planning organizations to account for greenhouse gas emissions in their transportation and land use plans (see CP&DR Insight, May 2009). A California Air Resources Board advisory committee's recommendations for implementing SB 375 are due September 30 (see CP&DR Environment Watch, August 1, 2009).

Support from Washington and the prospect of a national program to encourage cleaner fuels, less pollution from industry and utilities, and even re-make cities for a greener world has received a warm reception in California.

"We need federal climate change legislation not just to back us up but to make all our efforts worthwhile," said Mary Nichols, chair of the Air Resources Board. "California has made it clear that we need to be part of a national and international effort. There's no way that California on its own can curb the threat of global warming."

In June, the House of Representatives passed HR 2454, the American Clean Energy and Security Act, sponsored by Reps. Ed Markey (D-Massachussets) and Henry Waxman (D-Los Angeles). California's leaders are welcoming the feds to the party wholeheartedly.

"Federal climate legislation is absolutely critical if we are to seriously address global climate change," said Pavley. "I think Congressman Waxman did a great job with the legislation he got through the House earlier this year."

One of the strengths of AB 32, said Pavley, is that it set goals in statute that the state must meet, but provided a fairly high degree of flexibility and discretion to the California Air Resources Board for reaching the 25% reduction. In developing their regulations, the Air Resources Board has been mindful of the possibility of federal legislation, so the board designed regulations that should complement a federal bill.

Though the Senate is still considering its own climate change legislation debate was recently postponed from mid-September to later this fall and the details yet to be worked out in conference committee, Waxman-Markey offers a hint at the requirements and guidelines that may ultimately become law. While most of its provisions apply to truly national issues such as fuels, technologies, carbon sequestration, household appliance standards, and, perhaps most importantly, a national cap-and-trade system for issuing carbon credits the bill also acknowledges that more efficient local land use patterns are essential for curbing carbon emissions.

"Although land use is quintessentially a local issue, the federal government indirectly has very large influence on how cities have developed, primarily because of the federal dollars that go into transportation," said Nichols.

Section 222 of Waxman-Markey seeks to reduce greenhouse gas emissions by "integrating new greenhouse gas reduction planning measures into the existing transportation planning process." Though the details of this provision are far from being worked out, it represents a profound shift away from the federal government's traditional support of sprawl and dependence on the automobile.

"The Waxman-Markey bill contains a provision which is similar in approach to SB 375 in that it doesn't create any mandates," said Nichols. "But it encourages states to enact land use reforms that will reduce the need to drive."

The inclusion of land use in a bill as prominent and wide ranging as Waxman-Markey might present the possibility that the federal government would encroach on land use policies that have almost always been the domain of local governments. But early analysis of the bill suggests that the principles of Waxman-Markey like those of SB 375 will not translate into mandates or top-down controls.

"State government can't create [land use] policy," said Julia Lave Johnston. "It's like lighting a cigarette with a blowtorch." Any such federal attempt would therefore resemble something along the lines of a booster rocket.

Property rights and property rights law are defined on a state-by-state basis, observed Bill Higgins, legislative representative with the California League of Cities. "That's why a federal government isn't going to go in and get into the entitlement business," he said.

What the federal government may do, however, is take a proverbial jackhammer to the auto-centric infrastructure that gave rise to sprawl in the first place. In conjunction with other legislation, such as the upcoming transportation reauthorization, bills such as Waxman-Markey may herald a major shift in the funding mix for highways and mass transit. Then again, funding provides only a nudge and will not dictate particular forms of land use.

"The question is, if the federal government makes those resources available in a different way, are we going to make decisions in light of the resources that are available to us?" said Higgins. "There's nothing in the federal legislation saying that a local agency can't approve a sprawl subdivision."

Much like SB 375, the federal legislation does not have enforcement teeth behind it, according to Bedsford. But also like SB 375, Waxman-Markey talks about regional transportation plans and linking transportation and land use. Some people think that once the links is made, it will trickle down to how regional transportation plans are evaluated by the federal government, she said.

Johnston said that the recognition that the combination of land use and transportation plays such a huge role in the production of greenhouse gas emissions will tip the playing field and result in certain types of development activities going forward.

If the Waxman-Markey bill mirrors California's efforts, the question, then, is the extent to which it may complement, or even pre-empt, the policies that California is already en route to implementing. As it turns out, California's early adoption of its own climate change legislation may make it well positioned to take advantage of federal regulations and compete for federal funding.

"In terms of land use and transportation, my latest read of the federal bill is that nothing in it would preclude what we are trying to do either as part of AB 32 or in terms of the other landmark bill we passed in 2008, SB 375," said Pavley.

If Higgins, "If anything, the way that federal legislation works, particularly in this area, it's going to recognize that different states have different ways of doing things."

Regardless of intentions, federal legislation poses the danger of creating a complicated stew of regulations and incentives that might naturally flow from overlapping legislation.

"There's always the possibility for complication when you have multiple layers of government working in the same area," said Nichols. "I think there' s a concerted effort underway ... to try to make this as seamless as possible."

Federal legislation can tighten those seams, in fact, by backing up its legislation with funding. An early criticism of SB 375 is that it sets guidelines and targets but offers little financial or logistical support. Backers of federal legislation hope for something more substantial as local entities try to improvise solutions to what may be the most dire issue of the 21st century.

"There are very little resources, both financial and technical, to develop a regional plan or a climate change plan," said Bedsford. "I think the federal government can play a role there, and so can the state. Aiding local and regional governments will be really important."


Contacts:
Mary Nichols, California Air Resources Board, (916) 332 3260.
State Sen. Fran Pavley, (916) 651-4023.
Louise Bedsford, Public Policy Institute of California, (415) 291-4469.
Bill Higgins, League of California Cities, (916) 658-8200.
Julia Lave Johnston, Governor's Office of Planning and Research, (916) 324-4002.
House Energy and Commerce Committee, (202) 225 2927, http://energycommerce.house.gov.
California Air Resources Board: www.arb.ca.gov.