The new Safer and Affordable Fuel-Efficient Vehicles rule would nullify California regulations to reduce greenhouse gas emissions from tailpipes and its zero-emission vehicle program.

Co-published by The American Prospect

When officials within the Trump administration, on August 2, proposed scaling back Obama-era fuel-economy standards and revoking California’s authority to regulate greenhouse gas emissions from tailpipes, they were betting on the chance that courts can’t tell the difference between a law against gas guzzlers and one against carbon belchers. Low-mileage cars and low-emissions cars are often one and the same, they may have reasoned. If you’re requiring a car to emit less carbon dioxide, you’re also asking that it burn less fuel.

That part might be mostly true, although there are emissions controls that have nothing to do with gas mileage. But from a legal standpoint, fuel economy and tailpipe emissions take distinctly different routes to regulation. Fuel-economy standards, known as the Corporate Average Fuel Economy, or CAFE standard, as defined in the Energy Policy Conservation Act, forbid states from making their own rules. The National Highway Traffic Safety Administration enforces them; states have no control.

The 1970 Clean Air Act, on the other hand, gives California the explicit authority to regulate air pollution, albeit with EPA sign-off in the form of a “waiver” each time the state wants to impose a new standard. Other states can adopt California’s stricter rules (12 of them and the District of Columbia, have). Or states can stick with the standards set by the federal government. Tailpipe emissions of other pollutants from cars and trucks — carbon monoxide and nitrous oxides, for starters — have long been a chief source of air pollution, and California since 1961 has acted to curtail them.

“California regulators were the first to understand how smog was formed, the first to act on how to control that smog.”

That’s one of the reasons why the administration might lose its coming battle with 19 states and a host of environmental groups gearing up to fight the “Safer and Affordable Fuel-Efficient Vehicles” rule, as the Environmental Protection Agency calls its apocalypse-hastening rollback, which would freeze the CAFE standard at 37 miles per gallon instead of aiming toward the 54.5 miles per gallon by 2025 that the previous administration had set. It would nullify not only California regulations to reduce greenhouse gas emissions from tailpipes but also California’s zero-emission vehicle program, which requires carmakers to market a certain number of all-electric or hydrogen vehicles in the state.

But the rollback doesn’t pass legal muster, says Irene Gutierrez, clean-energy attorney with the Natural Resources Defense Council. Among its many legal and factual flaws, the proposed rule seeks to revoke California’s authority over tailpipe emissions of greenhouse gases on the grounds that “the environmental problems it addresses are not particular or unique to California.” Yet nowhere does the Clean Air Act mention “particular or unique” as a waiver requirement.

California’s transportation sector puts more carbon-dioxide and its equivalents into the atmosphere than any state but Texas.

“The EPA has not in the past looked at California and said, ‘Prove to us that your ozone problems are worse than any other place in the country,’” Gutierrez says. “It’s not like there aren’t polluted air basins in other states.” When past waivers were granted — there have been more than 50 — it wasn’t because California and California alone had an air-quality problem. It was because California was seen as particularly aggressive about cleaning up its air and, in 1970, was far ahead of the federal government in doing so.

“California regulators were the first to understand how smog was formed, the first to act on how to control that smog,” says Meredith Hankins, a legal scholar at the University of California, Los Angeles. So it allowed the state to forward with what’s known as “technology-forcing” regulation.

“Technology-forcing means regulators aren’t picking the technology, aren’t picking the winners and losers,” Hankins says. “They’re saying ‘You figure it out — you’re the technology experts. All we care about is public health.’”

Climate change is undeniably hitting the state now with a particular and unique dose of fury.

But even if the law said California had to be unique in its suffering from greenhouse gas emissions, it would not be hard to make the case that it is. For one thing, with its glut of cars, California has an urgent responsibility to reduce its contribution to greenhouse gas pollution from cars and trucks. Forty-one percent of California’s greenhouse gas emissions come from transportation, according to the California Air Resource Board’s latest climate inventory. The state’s transportation sector puts more carbon-dioxide and its equivalents into the atmosphere than any state but Texas.

Plus, climate change is undeniably hitting the state this moment with a particular and unique dose of fury. “There are 18 fires burning in the state right now, and none of them are contained,” Gutierrez says. Several more have already leveled neighborhoods. One of them, near Redding, in Northern California, burned so hot that it scorched away a layer of earth.

It’s an odd time, then, for the Environmental Protection Agency to be fighting against environmental protection. Especially in California.

California’s climate gas waiver for cars was first denied by the Bush administration in 2008, when then-EPA Administrator Stephen Johnson made basically the same case: That California does not “need to meet compelling and extraordinary conditions” with respect to greenhouse gas pollution. Six months into the Obama administration, the EPA officially reversed that decision. “Opponents of the waiver have not demonstrated that California does not need its greenhouse gas emission standards to meet compelling and extraordinary conditions,” EPA Administration Lisa Jackson wrote at the time. She also affirmed that “Congress recognized that California could serve as a pioneer and a laboratory for the nation in setting new motor vehicle emissions standards.”

“Trump is trying to rehash those old Bush administration arguments,” Gutierrez says. Trump’s administration is also adding a bonus caveat: that clean vehicles are, by definition, small and unsafe. The proposal claims that canceling out both national fuel standards and California’s waiver will reduce traffic fatalities by 12,700 from 2021 to 2029.

Never mind that it’s possible to produce a substantial, low-emissions plug-in hybrid, such as Chrysler’s Pacifica minivan, just as it is to make a smaller car that pollutes (the 2009 model of the Ferrari F430, for instance, isn’t particularly big, but it packs the same climate wallop as the 2001 model of the hulking Ford Explorer.) Carmakers are getting better all that time at designing more substantial, longer-range and affordable cars that qualify as clean. Nearly every manufacturer has a plug-in hybrid crossover SUV on the line for 2019. Even Ford, which has been slow to the EV game — dutifully churning out “compliance” vehicles just to qualify for the strict California market — has announced a plug-in hybrid model of its crossover SUV, the Escape.

Besides, the goal of saving 12,000 lives rings a little hollow when you consider that heat, according to the Centers for Disease Control and Prevention, is the leading cause of all annual weather-related deaths in the U.S. The World Health Organization predicts that between 2030 and 2050, 250,000 people will die globally due to climate-related health impacts. Maybe we could all just drive a little more carefully.

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When, on July 18, a brand-new community energy venture unveiled its five-year business plan, advocates for clean energy and environmental justice touted it as a first-of-its-kind coup. East Bay Community Energy (EBCE), a coalition of 11 cities and unincorporated areas in Alameda County, came together last year to find potentially cleaner and cheaper electricity for its customers than their for-profit utility, PG&E, can supply. The group has also promised to nourish the local economy with good jobs tied to renewable energy development, harnessing the county’s abundant wind and solar resources to clean up the air.

But some experts who monitor California’s energy policies have their doubts about EBCE’s ability to deliver power that does not involve a (carbon-free but fish-killing) hydroelectric dam — or even a smokestack — at least in the near future. “The business plan is of little relevance,” says Matthew Freedman, staff attorney with The Utility Reform Network (TURN), a nonprofit that polices corporate utilities and advocates for ratepayers. “The proof is what they actually commit to buy.”

EBCE has come together under the aegis of a 2002 California law that granted local jurisdictions the right to procure their own power, as “community-choice aggregators,” or CCAs. The ideals of the CCA have always involved encouraging more clean energy generated locally, and offering it to consumers at competitive rates. For-profit utilities have been accused of delaying the transition from coal and natural gas to renewables, as well as starving local economies by importing power from out of state.

Yet even for the community energy groups, those ideals have been almost impossible to realize. Community power programs are opt-out — if you live in a place that has one, you’re automatically subscribed — but consumers can still defect if prices spike. Power suppliers have to stay competitive or die.

And some did die early on, victims of both organized campaigns by the large utilities, and a renewable energy landscape that wasn’t quite ready to meet their demands. Even after the price of solar cells began dropping in 2009, inciting a solar boom, labor unions still opposed CCAs on the grounds that the groups weren’t doing anything for new energy development — they were, instead, doing an end run around utilities to buy the same old dirty power. “At present, there is no pathway from a power purchase agreement with [traditional energy] companies to creating local jobs with union-scale wages and benefits,” read a statement from IBEW 1245 in 2013. (Disclosure: IBEW 1245 and the California Nurses Association are financial supporters of this website.)

East  Bay activists were acutely aware of these factors when they started lobbying for a community choice program in the county. “One of our demands was not to use ‘renewable energy certificates,’” says Jessica Tovar, lead organizer with Oakland’s Local Clean Energy Alliance. Renewable energy certificates, or RECs, are green-labeled kilowatts sold on the electricity market independent of actual generation. Because they’re not investments in new renewable generation, RECs don’t spur the development of new wind and solar projects. (They might not even originate from renewable generation at all — on the mixed-up electricity market, you can’t tell a coal electron from a wind one.) “We emphasized from the beginning that we wanted to have actual local renewables produced in the county.”

That demand was part of the organization’s “unity position,” says Tovar, along with the Alameda Labor Council and the California Nurses Association. “Oftentimes the environmental and social justice movements don’t work together,” she says. “It was a big deal for us to be able to ask for those things, working together, at the time.”

EBCE, which has supplied electricity to non-residential consumers since June, and will begin serving residential customers in November, has agreed only to buy renewable energy certificates if they prove necessary to its financial health. It’s hard to know exactly what that means. Until the CCA has the credit rating and assets to sign long-term contracts for new projects with local energy developers, it will have to rely on electricity from existing facilities throughout the West. Such purchases often involve some kind of environmental trading mechanism that can disguise dirty energy as clean. One of EBCE’s options offers “carbon-free” power, which in this case, means power from large hydroelectric plants in the Pacific Northwest or Canada.

“The carbon-free angle is worse than meaningless,” Freedman says. “We’ve seen Northwest utilities that have abundant electricity supplies send a clean resource [to a CCA] and then backfill with a dirty resource to meet their existing demand.” The amount of hydroelectric in EBCE’s resource plan, Freedman says, “is staggering.”

Tovar isn’t happy with the carbon-free option either. “We know better and want to do better,” she says. Doing better just takes time.

Freedman doesn’t dispute that. “When a CCA starts up it needs to have a product to sell on day one,” he says. “New clean energy infrastructure takes time to design and implement.”

If all goes well, Tovar sees EBCE paving the way for other energy innovations, such as shared solar, solar cooperatives and microgrids — small, self-contained distribution networks that can interact with the grid or “island” and operate on their own in a crisis. She and other clean-energy advocates hope to see rooftop solar and battery storage become accessible to low-income households and renters, through shared and community projects made possible by the CCA.

Those are all towering asks, and Tovar is careful to note that none of them will become reality if energy decisions get made in a bubble. Consumers have to participate, too. “We call it energy democracy,” Tovar says. “It requires us all to play advocates for the kind of energy we want to produce.”

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When Assemblyperson Ash Kalra (D-San Jose) learned about Capital & Main and USC’s Center for Health Journalism investigation into how hundreds of workers at the former Exide Battery Recycling Plant near downtown Los Angeles became victims of lead poisoning, he created a modest bill to try and ensure it wouldn’t happen again.

Among our report’s revelations was the fact that the California Department of Public Health was aware of thousands of troubling blood tests revealing high levels of lead, but failed to tell the Division of Occupational Safety and Health (Cal/OSHA) about the problem.

Kalra’s bill, Assembly Bill 2963, requires that the Department of Health inform Cal/OSHA when workers have seriously elevated blood levels and Cal/OSHA performs inspections.

The bill has had clear sailing until now, easily passing in the Assembly Labor Committee in March and winning unanimous approval from Democrats on the Appropriations Committee last week. But as the worker-protection measure headed to a crucial floor vote this week, a coalition of industry groups, one of which includes the iconic Disneyland Resort, worked the halls of the Capitol to kill the bill. The lobbying effort nearly prevailed: AB 2963 passed by a single vote Wednesday evening and now faces what is certain to be a battle in the California state Senate.

So why would Disneyland, which hosts thousands of kids every day, be part of an effort to defeat a bill that simply requires reporting of blood-lead levels high enough to produce heart disease and serious brain disorders? A May 29 letter endorsed by 15 industry groups, including the Battery Council International, the California Chamber of Commerce and the California Hotel and Lodging Association (which includes a Disneyland Resort vice president on its board) argues that California’s current system to protect employees, depending largely on voluntary compliance, is working just fine.

The letter states: “Perversely, AB 2963 would transform this existing well-functioning public health program into an enforcement program that creates an allegation of a serious violation where none exists in Cal/OSHA law and the workplace may not even be the source of exposure.”

The bill will be costly, the opposition letter also says, with an estimated price tag of $267,000 to implement and requiring Cal/OSHA to hire one or two additional inspectors.

“That’s a small price to pay” said Bill Allayaud, California Director of Government Affairs for the Environmental Working Group, which is trying to keep moderate Democrats from being swayed by the industry lobby.

“The California Chamber of Commerce and their allies are misrepresenting what the bill does and convincing industries like the hotel industry to lend their name to the fight, even though this bill would have zero impact on hotels,” Allayaud said. “The law focuses on workplaces where lead is in heavy use, like firing ranges and battery recycling facilities where workers are actually being impacted by a dangerous neurotoxin.  Besides, I can’t imagine [that] parents who visit a resort like Disneyland would want their kids anywhere near lead if found at the levels that would have employees testing at the alarm bell level. Who wouldn’t want an OSHA inspection in that case?”

Suzi Brown, vice president of communications at Disneyland Resorts, said that the “California Lodging Association is just one organization that we are involved with. As you can imagine we are involved with many trade organizations.” Brown said that Disney vice president Elliot Mills, who sits on the association’s board, was not present for the vote to oppose AB 2963. “To somehow link Disney to this in a specific way is not accurate,” she added. “And to somehow position this that we are not concerned about worker safety is flawed as well.”

At the March California State Assembly Labor and Employment Committee hearing, Kalra introduced his bill by reading a letter from former Exide lead smelter Alvin Richardson (who struggles with lead poisoning symptoms we documented in our investigation) and his wife, LaShawn. “We read a recent investigative story, and it was very hurtful to learn that Cal/OSHA excused the high lead levels that Alvin and the other Exide workers were constantly exposed to,” the letter said. “People shouldn’t be treated like they are disposable. That’s not what America or California is supposed to be about.”

Assemblymember Reggie Jones-Sawyer (D-Los Angeles) was moved to vote yes. “My district’s right next to the Exide plant, and it’s had an impact on my community and my residents,” he said. “And if this is something that could have prevented what happened at Exide, we should have been doing this a while ago.”

AB 2963 needed Jones-Sawyer’s vote again on Wednesday to barely pass it out of the Assembly. Whether the bill makes it to Governor Jerry Brown’s desk is dependent on how well the arguments of the California Chamber of Commerce and other industry voices opposing the bill go over in the Senate.

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There are not as many propositions on the June ballot as usual, but none has fewer supporters than Proposition 70, a constitutional amendment calling for a one-time, two-thirds vote in 2024 to determine how the billions of dollars generated by California’s cap-and-trade program will be spent. That two-thirds vote requirement conjures up frustrating memories of the gridlock that occurred each year before past budgets were finally passed.

Supporters are a collection of strange bedfellows: Governor Jerry Brown, former Assembly GOP leader Chad Mayes (R-Yucca Valley), who crafted the amendment, and the state Chamber of Commerce. Opponents include the Democratic and Republican parties, every environmental group in the state and nearly every major newspaper.

Cap-and-trade requires that polluting companies buy permits allowing them to release greenhouse gases into the atmosphere. Money from these permits now goes into the Greenhouse Gas Reduction Fund (GGRF), and the legislature decides by a simple majority vote on how to spend that money each year during budget negotiations.

If Prop. 70 passes, money from those permits would be deposited into a new state reserve fund starting in 2024, until each chamber in the legislature passes that one-time bill on a super majority vote that would decide how to spend the money. But once that bill passes, new money collected through cap-and-trade would once again go into the GGRF and again could be allocated on a simple majority vote.

Prop. 70 emerged from a compromise last year to extend cap-and-trade, California’s ambitious climate change program, until 2030. Brown has called climate change a “threat to organized human existence.” But some Democrats were skeptical of the extension and their support was shaky at best. Republicans were also looking at the program with wary eyes. Gov. Brown knew he would need Republican votes to extend the program, and decided it was time to deal. He enlisted Mayes to round up the needed GOP votes.

Brown sought the supermajority vote, when only a simple majority was required, as an insurance policy against unforeseen future legal challenges.

Prop. 70, however, could endanger the bullet train, one of Brown’s favorite projects, by giving Republicans a say over how cap-and-trade money is spent. By the end of 2016, about $800 million had been spent on the high-speed rail project. Given the GOP’s opposition to the train, it could strangle the project if their votes are needed in 2024 to provide a two-thirds majority to continue its subsidy.

Opponents of Prop. 70 say that it makes sense for cap-and-trade allocations to be reviewed, but that review should be done every year through the budget process on a simple majority vote. If passed, Prop. 70 could change the mix of cap-and-trade funding sent to state and local programs.

“We’ve seen other legislation where the two-thirds vote holds hostage money for disadvantaged communities,” says Strela Cervas, interim director of the California Environmental Justice Alliance. “This would be budget gridlock and backtracking.” Cervas worries that one major program benefiting from cap-and-trade investments, Transformative Climate Communities, could be starved of funds if Prop. 70 passes.

Bill Magavern, policy director of the Coalition for Clean Air, said that a two-thirds vote would lead to budget gridlock, regardless of the partisan composition of the legislature in 2024.

“For years we had budgets that were delayed. Since 2010, when we passed Prop. 25, which required a simple majority vote, we’ve have had balanced and on-time budgets. Brown’s success in getting his climate agenda passed is largely due to this.”

California’s major political parties oppose Prop. 70. With the exception of the Bakersfield Californian, all major newspapers have opposed it. The San Jose Mercury News called it a “colossal waste of voters’ time.” And the Los Angeles Times described it as a “pointless exercise.” The only institutional supporter of the ballot measure, the California Chamber of Commerce, didn’t respond to requests for comment.

So far there’s no evidence of big money backing Prop. 70. But Magavern said he isn’t complacent. “Our side definitely doesn’t have the money to fight this,” he said.

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Last month a controversial French company and the Los Angeles Department of Transportation rolled out the blue-carpet at a full-launch party for BlueLA, an eco-friendly car-sharing service. BlueLA enjoys enthusiastic municipal backing for its mission of helping to ease L.A.’s desperate transportation woes with a fleet of electric cars and charging stations, initially targeting, LADOT says, some of the city’s lowest-income neighborhoods. (A soft-launch of the L.A. program was unveiled last June.)

Although questions remain about the viability of BlueLA’s business model, on April 20 — while a DJ spun tunes under sunny skies on the L.A. Community College campus in East Hollywood, community organizers and environmental groups dispensed brochures, food trucks served lunch and reporters test-drove the nifty blue e-vehicles — local pols hailed the co-venture between LADOT and Blue Solutions, the parent company of BlueLA.

“BlueLA is making a difference,” said Sandy Berg, vice chair of the California Air Resources Board, which is granting $1.7 million of cap-and-trade regulation funds to the $10 million project. A statement from Mayor Eric Garcetti declared that the company would provide “underserved communities with an environmentally-friendly way to get around town—at an affordable price.”

BlueLA’s first seven stations are located at Los Angeles City College, Koreatown, MacArthur Park and downtown Los Angeles. The next round of stations will include Los Angeles Trade Technical College, Echo Park and Westlake. The program’s first phase aims to have 100 vehicles available in 40 locations, with subsequent expansions tripling the program’s reach by the end of 2021. A phone app allows users to locate and reserve available cars.

The pricing structure offers users a “Community” level subscription: one dollar per month and 15 cents per minute, provided the user is “low-income qualified,” with a total annual gross income of less than $31,550 for an individual. Proof requires pay stubs, tax returns or enrollment in Medicaid/Medi-Cal, SNAP or other public-assistance programs. At this level the second and third hours of any rental period are free, adding up to a cost of $9 for the first three hours, after which the 15-cent-per-minute rate applies.

A statement from Marie Bolloré, CEO of Blue Solutions, a division of the Paris-based Bolloré Group, which manufactures the Blue Cars and the e-vehicle’s battery, reiterated the goals of sustainability and “creating inclusive communities,” and saluted CARB and LADOT for “unwavering support” for their co-venture.

Yet it’s not all been a win-win for her company. The 30-year-old heiress to the Bolloré business, which dates back to 1822, and “director of the Electric Side of The Empire,” according to the French press, might not have known that less than a week later her father, Vincent Bolloré, would be arrested by French judicial police. The 66-year-old head of one of France’s richest conglomerates—counting Universal Music Group and a large tranche of French TV and film media companies among its diversified holdings, which yielded 18.3 billion euros in 2017 revenues—is the target of a bribery investigation involving the presidents of Togo and Guinea in West Africa, where the Bolloré Groups’ myriad interests in transport, palm oil plantations and shipping make it one of the continent’s biggest investors.

“That is about things that happened 10 years ago,” Blue Solutions managing director Christophe Arnaud told Capital & Main by phone about the senior Bolloré’s arrest. “It won’t affect our operations in L.A.”

Indeed, l’affaire Bolloré has not yet affected AutoLib’, the company’s 3,000-car rideshare service in Paris, or BlueIndy, the company’s three-year-old American test project in Indianapolis. But, even if the parent company’s distant troubles don’t impact the rollout of BlueLA on the streets of Los Angeles, other factors present daunting challenges to the car-share venture’s success here.

BlueLA is not expected to turn a profit for 12 to 13 years, says Arnaud, describing it as a “long-term investment.” The business plan envisions revenue, beyond customer subscriptions, coming from three main sources: the offering of its charging stations to other e-vehicles; advertising on the sides of Blue Cars; and selling the car batteries’ stored juice back into the grid. Arnaud admitted, however, that for the scheme to pay off, BlueLA’s infrastructure will have to scale up quickly.

With rates roughly equal to rideshare services like Lyft and Uber, and competition from rapidly expanding bike-share services around the city, as well as other share-ventures such as Santa Monica-based Bird electric scooters, BlueLA appears unlikely to make a significant dent in Angelenos’ travel habits anytime soon.

As for the idea of servicing the EV community, BlueLA’s charging stations do not currently accommodate other e-vehicles, nor are the Blue Cars compatible with any of the city’s existing charging stations, despite the fact that Los Angeles is one of the country’s top 10 EV cities, according to a recent study by Indiana University, with more than 1,200 plug-ins within 10 miles around the city.

The car’s solid-state lithium battery has its pluses—such as “no cobalt,” Arnaud emphasized, referring to the rare-earth element that is often mined under conflict conditions for other batteries—but faces overwhelming competition from Tesla and other battery manufacturers. Also, outside of sunny California, the Blue Solutions battery must be kept plugged in and warmed above a certain temperature.

Still, a quick spin around L.A.’s Mid City neighborhood in a BlueCar was easy, with radio and AC functioning on a recent hot day, built-in GPS guiding my way and pretty good acceleration, although I wouldn’t take it on the Santa Monica Freeway. Want to practice your French? Tap the Help button; it connects to customer service in France. But don’t forget the nine-hour time difference. “It is two in the morning!” said the voice with a touch of Parisian impatience, as I rounded the corner of Melrose and Vermont avenues.

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The Trump administration signaled Monday that it would lower vehicle fuel economy standards, a move that would undermine one of former President Barack Obama’s major efforts to combat climate change by reducing greenhouse gas emissions.

The Environmental Protection Agency (EPA) said it would re-examine the Obama administration’s Corporate Average Fuel Economy (CAFE) standard of achieving an average 54.5 miles per gallon for cars and light duty vehicles by 2025. That target was reached in a compromise between the Obama administration and the auto industry. Trump’s EPA isn’t calling for a specific new CAFE average, but based on EPA Administrator Scott Pruitt’s public statements, the standards are likely to be lowered.

In 2009, via a special provision in the Clean Air Act, California was granted a waiver to enact tougher controls on greenhouse gas emissions. The EPA could be setting up a new battle between California and the federal government if the agency tries to revoke that waiver.

California’s Air Resources Board (CARB) developed an Advanced Clean Cars program, including mandates to reduce greenhouse gases and smog-forming contaminants from vehicles. Cutting vehicle emissions is a key part of California’s goal of slashing carbon emissions 40 percent below 1990 levels by 2030. Thirteen states and the District of Columbia also follow California’s more stringent rules.

Pruitt had been a zealous defender of states’ rights when he was Oklahoma’s attorney general, but he may not be that staunch a supporter of those rights in California’s actions to reduce greenhouse gas emissions. Although EPA’s Monday decision did not mention California’s waiver, Pruitt’s public statements suggest that the EPA will make it harder for California to justify its own standards. On Monday Pruitt said, “Cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country.” He also said he looks forward to “partnering with all states, including California, as we work to finalize that standard.”

“Historically the EPA has said that California has compelling reasons, meaning it [has] worse air quality, for enacting stricter rules,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles Law School. “The federal government could put a higher burden on California to prove it deserves a waiver, or it could simply say, as the Bush administration did, that California doesn’t deserve a waiver.”

Governor Jerry Brown slammed the EPA’s decision as a “cynical and meretricious abuse of power.” California Attorney General Xavier Becerra has said he will sue the EPA over any attempt to weaken vehicle fuel efficiency standards.

Clean energy advocates say relaxing vehicle efficiency rules could put the U.S. at a competitive disadvantage worldwide. Developing more electric and hybrid vehicles is critical for companies to reach the corporate average fuel economy standard set during the Obama administration. Two automakers, Ford and Honda, have signaled that they’re not on board with attempts to weaken standards. Volvo, for its part, has pledged to offer multiple electric vehicles in the 2020 model year. China is already claiming leadership in electric and hybrid vehicles.

“Possibly a transition to alternative fuel vehicles will happen without regulation, and there’s already a movement in that direction,” Hecht said. “But the most effective way to make change happen faster, whether it’s by adding airbags or even seatbelts, is through regulation.”

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Southern California Gas Company (SoCalGas) invented shortages to justify using the troubled Aliso Canyon storage facility, the site of the October 2015 blowout that forced nearby residents from their homes for months, residents and lawmakers have charged. The blowout, caused by a ruptured well, sent more than 100,000 metric tons of natural gas into the atmosphere and resulted in a four-month-long leak.

Governor Jerry Brown allowed the utility to inject gas into the facility last summer despite objections from nearby residents, the Los Angeles County Board of Supervisors, the Los Angeles Unified School District and local lawmakers. Brown, who has the authority to shut down gas storage facilities, recommended Aliso Canyon be closed in 10 years. Residents, however, say Brown is kicking the can down the road, and they have stepped up pressure on local officials to urge the governor to close it.

Stern letter about a “contrived emergency”

State Sen. Henry Stern (D-Canoga Park) slammed regulators for allowing SoCalGas to make withdrawals from the partially idled Aliso Canyon storage field, which he said “exacerbates the ongoing risk to ratepayers and residents without any evidentiary basis or public hearing.”

The Aliso Withdrawal Protocol, approved by the California Public Utilities Commission (CPUC), stipulated that the storage field could not be used unless SoCalGas can demonstrate that it is withdrawing gas as a last resort and that there was an “imminent risk” that the region’s electricity would be curtailed without additional gas supply.

In a March 5 letter to the CPUC, Stern said SoCalGas didn’t meet those criteria this winter, and that expanded use of Aliso was authorized without public comment. He also accused the company of mismanaging its gas pipeline system to justify keeping Aliso operating, citing three major gas importing pipelines that the company took offline for unplanned maintenance before peak winter demand.

“A contrived emergency, justified by an opaque, self-interested rationale by SoCalGas, is no emergency at all,” Stern wrote.

Stern also raised concerns about ongoing risks at the facility, noting that seismic and fire safety reviews still have not been completed and that the root cause analysis of the 2015 blowout has not been finished.

In a letter responding to Stern, the CPUC said SoCalGas’ injection of gas was “consistent with the withdrawal protocol’s requirement that Aliso Canyon be used as an asset of last resort.”

Chris Gilbride, a spokesman for Sempra Energy, the parent company of SoCalGas, told Capital & Main in an email that Aliso Canyon is needed to meet winter demand.

“The more we rely on our three other storage fields to support peaks in demand, the more likely withdrawals from Aliso Canyon become necessary to prevent service interruptions to customers,” Gilbride wrote.

Alexandra Nagy, Southern California organizer with Food and Water Watch, said responses from CPUC and Sempra didn’t address all of Stern’s concerns.

“They didn’t justify why these pipelines are still offline or explain what the hourly peak demands were and how other mitigation measures were deployed to prevent withdrawals or any other mention of conservation measures used to lower demand,” Nagy said.

Report says Aliso Canyon still poses risks

The nonpartisan California Council on Science and Technology (CCST) released a three-part study in January examining whether underground natural-gas facilities pose a risk to safety, health and the environment, whether natural gas storage is needed through 2020 and whether such facilities were in line with the state’s climate policies. Researchers said tighter regulations implemented in 2018 would make all facilities safer, but in an assessment of all California natural gas storage facilities, researchers found that Aliso Canyon has many serious risks, including danger to the health of facility workers.

CCST researchers also noted that it is unclear what chemicals residents have been exposed to because SoCalGas has not released a list of the compounds released in the blowout. But posts on the Save Porter Ranch Facebook page, started by residents in the community closest to the facility, routinely note headaches, nausea, dizziness, nosebleeds and other health problems residents suffered long after the leaking well was capped in February 2016.

Several residents said they noticed an increase in symptoms during the recent gas withdrawals this winter. Local physician Dr. Jeffrey Nordella released the findings last October of his independent toxins study on more than 100 patients living near Aliso Canyon and found that many had above average levels of the carcinogens styrene and ethylbenzene in their hair.

Not giving up on Brown

Most recently residents have taken aim at Los Angeles County Supervisor Kathryn Barger and Los Angeles Mayor Eric Garcetti, urging them to demand that Brown close Aliso Canyon permanently and immediately. Barger, despite her previous efforts to block limited injections at some of the wells at Aliso Canyon, appears to be backing off from her goal of closing the facility right away.

Jarrod Degonia, Barger’s senior field deputy for the San Fernando Valley, told Capital & Main that Barger was awaiting the results of three studies before demanding the shutdown: a CPUC-led energy reliability study; a report on the health effects of the blowout and leak; and an analysis of the root cause of the blowout, by Blade Energy Partners, an independent consulting firm hired by the CPUC. Begonia said that Barger is still opposed to withdrawals and injections of gas at Aliso, even though she was denied a restraining order last year to stop them, and that she is “actively trying to obtain more money for a long-term health study.”

Residents and activists acknowledge that action on closing Aliso Canyon may not come until a new governor takes office in January. Two Democratic candidates for governor, Lieutenant Governor Gavin Newsom and former State Superintendent of Public Instruction Delaine Eastin have said the facility should be shut down now. Newsom stressed his intention to shut down Aliso in a video.

Food and Water Watch’s Nagy said proponents of shutting down Aliso “want to maintain urgency and not let Jerry Brown off the hook.”

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The agreement was lauded as historic. Environmental groups, labor and the state’s largest electrical utility had come together in the summer of 2016 and crafted a joint proposal to shutter California’s last nuclear power plant. For the enviros, who had opposed the plant since the San Francisco-based utility Pacific Gas & Electric first proposed it more than a half century ago, there would be the promise of clean energy to replace the plant’s annual 18,000 gigawatt-hours of electricity, supplying three million homes — 20 percent of PG&E’s service area — with energy free of greenhouse gases. For labor, represented by the International Brotherhood of Electrical Workers Local 1245, there would be ample funds to retain skilled workers, and retrain the ones losing their jobs.

There was even $85 million in “community impact mitigation” funds for the local community to offset lost property taxes and other costs to the local economy.

With this agreement the utility would finally secure the California Public Utilities Commission’s approval to unplug and dismantle Diablo Canyon’s two units when their federal licenses expire in 2024 and 2025.

The approval to unplug, at least, was granted. An administrative law judge with the utilities commission responded to the joint proposal with a proposed decision, authorizing the utility to take the Diablo Canyon facility off the grid six years from now. But the revised proposal denied PG&E the $1.76 billion it had requested for the suite of benefits in the joint proposal. Instead, it authorized the utility to recover from its customers exactly $241.2 million for costs associated with the plant’s retirement. It shifted the responsibility for community impacts to the legislature, and punted the issue of replacement power to the utility. And it cut what was a proposed $363.4 million to retain and retrain workers by more than a third.

On January 11, the commissioners adopted a final decision that made only modest changes to the proposed decision as written by the administrative law judge.

Peter Miller, western energy project director with the Natural Resources Defense Council, says his organization was disappointed with the cuts. “We’d struck a great deal with the labor union on Diablo Canyon,” he says. Retiring a nuclear plant is, in terms of economic consequences, the same as powering down a coal plant. Avila Beach, where the plant sits, is a company town, organized around a “big, old power plant that doesn’t fit the modern grid,” Miller says. “Instead of just turning the key and abandoning the plant, the town and the workers, we wanted to find a more collaborative way to retire the plant and jumpstart the replacement process.”

The joint proposal had also been crafted to avoid what happened at the San Onofre plant in 2013, when cracks in a new steam generator’s tubing caused the plant to shut down suddenly and permanently. All but 400 of the plant’s 2,200 or so workers lost their jobs, and Southern California Edison, the plant’s major owner, replaced much of the nuclear plant’s emissions-free generation with polluting natural gas.

On March 16, State Sen. Bill Monning (D-Carmel) and Assemblymember Jordan Cunningham (R-San Luis Obispo) announced SB 1090, a bill that would require the commission to restore certain elements of the joint proposal, including the full funding for workers. The law also stipulates that clean energy must replace what the nuclear plant produced. Monning’s bill will also allow PG&E to bill customers for the proposal’s original $85 million to soften the blow to the community when the plant shuts down.

“San Luis Obispo County agreed to house the Diablo Canyon Nuclear Power Plant, which provides power to more than three million people and benefits Californians despite the negative repercussions,” Monning said in a statement. “The County and its residents deserve to be compensated for the impacts they will incur when the plant shuts down.”

But do they? Matthew Freedman, a staff attorney with The Utility Reform Network (TURN), warns that it’s not PG&E shareholders paying the costs of the plant’s retirement. The utility will recover the costs in customers’ bills. He worries that what he calls Monning’s “end run” around the utilities commission’s decision could set an expensive precedent for any community with a power plant nearing the end of its natural life.

“We’re sensitive to the fact that communities have been reliant on Diablo Canyon for employment and revenue,” he says. But there was never any expectation that the plant was going to operate beyond the end of its current license. The costs of an aging nuclear plant, combined with competition from natural gas, rooftop solar and rapid gains in energy efficiency, mean that the electricity once touted as “too cheap to meter” will soon be too costly to produce. “That’s been known for decades,” Freedman says.

If SB 1090 passes, “it will embolden every community where a power plant is closing to have their representative run a bill in the legislature to get a chunk of money on everyone else’s dime,” Freedman says. He notes that the Orange County communities around San Onofre didn’t get a payout when that plant shutdown. “Perhaps,” Freedman says, “this will give them ideas.”

Built near an earthquake fault on an idyllic California sea cliff, the Diablo Canyon nuclear plant has hardly gone a day in its history without stirring controversy. Pacific Gas & Electric announced plans to build it in 1963, but more than 20 years passed before it went into service, thanks in part to organized opposition to the plant during a time when people in the U.S. had ecology on the brain. Mothers for Peace, founded in 1969 to protest U.S. involvement in the Vietnam War, shifted its energies in 1973 full time to stopping the construction of Diablo Canyon; a group called the Abalone Alliance formed in 1977 specifically to oppose the plant. Their members pored over legal and technical documents, dragged PG&E through lawsuits, and when that didn’t work, chained themselves to fences to stop machinery. Jackson Browne was arrested for his part in the protests in 1981; Jerry Brown, California’s governor then as now, vowed to do everything in his power to shut the project down.

Plant opponents were not without cause. In 1971, oil company surveyors had discovered an offshore fault sufficiently long to produce a 7.5 magnitude earthquake less than three-and-a-half miles from the site of the two reactors under construction. As Diablo Canyon had only been designed to withstand a magnitude 6.75 quake, PG&E was forced to redesign the plant to a higher seismic standard. As late as 1981, under pressure from activists, the Nuclear Regulatory Commission was suspending PG&E’s license to test and operate the plant until it could pass several seismic tests. The delays were expensive. When Diablo Canyon’s first reactor finally went online in 1985, PG&E customers were on the hook for $5.8 billion in construction costs, roughly $5.2 billion more than the original 1968 estimate.

Pacific Gas & Electric has been recovering those costs, along with any other capital expenditures, via its customers’ bills since the start of the plant’s life. Matthew Freedman doesn’t think the utility should be able to tack more on at the end. “PG&E loves to provide money collected from ratepayers and act like they’re engaging in a charitable endeavor like a good corporate citizen,” he says. “But there’s nothing in [Monning and Cunningham’s bill] that assigns any responsibility to the utility.”

With or without support for workers and local residents, however, no new fuel rods will be loaded into Diablo Canyon’s reactors after 2025. The steam generators will power down, and electricity production will cease. The plant will stand for a time, as San Onofre does, a relic of a bygone era, as workers begin the multi-billion-dollar process of relocating spent fuel from pools to heavy steel casks, decontaminating the plant’s radioactive innards and removing its crapped-out equipment. And for the first time since 1957, when the ill-fated Santa Susana Sodium Reactor began operations near Moorpark, California will be free of nuclear power plants.

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How could California, the model state when it comes to tough environmental regulations, have failed to assess lead-contamination dangers at a battery-recycling facility?

In the summer of 2008, California’s Department of Occupational Safety and Health (Cal/OSHA) inspected Exide Technologies’ vehicle-battery recycling plant in Vernon, California, an industrial suburb of Los Angeles. The ensuing laboratory analysis of air from the plant’s smelter room, where batteries are melted down to reclaim their lead, revealed that levels of the neurotoxin exceeded federal standards by a factor of 13. Despite the toxic air, Cal/OSHA found no serious violations at Exide, issuing only a token fine of $150 for what it deemed a low-level violation.

Asked today about that inspection, Cal/OSHA spokesperson Erika Monterroza told Capital & Main that it was “handled appropriately,” adding that the high level of lead that smelter-room workers were exposed to would only have been excused if other safety measures, such as “protective clothing, onsite showers, clean change rooms, proper housekeeping, clean lunchrooms, medical surveillance, effective training and implementation of engineering and administration controls” were deemed effective in reducing “exposures to as low as feasible.” However, there is little to no evidence that Cal/OSHA’s 2008 inspection included the measures Monterroza cited.

Also Read:
How California Health Agencies Failed Exide Workers

How could California, perceived by many as the model state when it comes to tough environmental regulations, have fallen so short when it came to assessing lead-contamination dangers at the Vernon battery-recycling facility?

Part of the answer stems from how the Occupational Safety and Health Administration (OSHA) works in the Golden State. In 29 states, workers at private companies such as Exide are are protected by federal OSHA, which is administered by the U.S. Department of Labor. In the remaining 21 states, including California, state-run OSHA programs protect workers employed by private industry. Even so, according to Monterroza, “Cal/OSHA’s program is required to be, and is, at least as effective as federal OSHA.”

In California, communication about workers with high levels of lead in their blood was nearly nonexistent between Cal/OSHA and the Department of Public Health.

But our investigation found that when it comes to protecting workers from lead, California operates in a different universe from states with federal OSHA oversight. While workers were routinely being poisoned in Vernon, with nearly nonexistent intervention by Cal/OSHA, battery-recycling plants in federal OSHA states were facing inspections so robust they amounted to an existential threat to the plants. The message to these lead polluters seemed simple: Either clean up your act or be fined out of business. A case in point: The same summer as Cal/OSHA’s 2008 Vernon inspection, another Exide battery-recycling plant, in Fort Smith, Arkansas, was hit with $71,000 in fines for having high levels of lead in its smelting department, and for other serious violations, including poorly fitted respirators. All told, inspectors found 22 “serious violations” at the Arkansas plant. A serious violation, an OSHA press release about the Fort Smith citations noted, is “one in which the hazard could cause death or serious physical harm to employees, and the employer knew or should have known about it.”

Read Documents Related to This Story

And after a 2012 inspection of a Johnson Controls battery plant in Ohio, federal OSHA issued 20 citations for “serious”and “willful” health violations, and issued $188,600 in fines. At yet another Exide facility, in Frisco, Texas, OSHA fined the plant $77,000 in 2011. That same year, Exide reached an agreement with Texas officials to pay $20 million for improvements to its engineering systems at the Frisco plant to cut down on lead emissions.

In Vernon, Cal/OSHA required no engineering changes that would impact levels of lead in the plant.

“OSHA is supposed to have workers’ backs,” said Rania Sabty-Daily, an expert in industrial hygiene and an assistant professor at California State University, Northridge. Sabty-Daily said Cal/OSHA completely failed to take into account a fundamental fact in its 2008 Exide inspection.

Photo: Laurie Avocado

“The records you dug up showed that lots of workers were being exposed to lead at levels high enough that their health was being compromised,” she said. “That should have led inspectors to seek out the safety problems causing the health problems. Any occupational hygienist knows that a real-world factory is imperfect — we can’t just rely on respirators, which are often not fitted properly. And there are other avenues for exposure. What happens when the worker takes off their boots? Are the shower facilities adequate?”

Making workplaces safer became a central OSHA focus in 2001, when the agency launched the National Emphasis Program on lead. This ambitious initiative sought to eliminate the conditions that had caused lead-related health issues in workers. The lead-reduction program was reinforced with even more stringent standards in 2008.

The directive legally mandates that when workers are found to have blood-lead levels above those considered by the U.S. Centers for Disease Control and Prevention (CDC) to represent a serious health risk (25 micrograms per deciliter or above), those cases “shall be considered high-gravity, serious and must be handled by inspection.” And it wasn’t just the 29 federal OSHA states that adopted the tough inspection standards. Nine states that have their own OSHA programs, including Indiana, Oregon and North Carolina, chose to adopt the same federal standards. For unexplained reasons, California did not adopt lead standards required by 38 other states.

Elsewhere, others saw a profound improvement. “Without question it’s an absolutely essential program that I saw make a difference when it came to protecting workers from being exposed to lead,” Clyde Payne, who retired in 2014 as the area director of U.S. OSHA’s Jackson, Mississippi office, told Capital & Main

“People were getting lead-poisoned in just a few months on the job. That tells you a lot about what conditions were like inside [Exide].”

While OSHA’s national directive remains largely intact today, President Donald Trump has made good on his promise to scale back all government regulations; OSHA’s current leadership has chipped away at the get-tough approach of the lead directive, changing its language to make some elements of the rules optional rather than mandatory.

Coordination with State Public Health Departments

Battery recycling is considered one of the most potentially hazardous industries for workers. Consequently, plants are almost always required to test workers’ blood for lead at least a couple of times per year. Most states’ departments of health — including California’s — are legally required to maintain those blood-lead results in what are called “blood-lead registries.”

A key component of the 2001 National Emphasis Program on lead is coordination with the custodians of blood-lead registries, the states’ individual public health departments. Scott Allen, a spokesperson for federal OSHA’s regional office in Illinois, underscored the importance of communication with state health departments. “Related to blood-lead levels, these medical referrals often come from health departments, medical providers or hospitals,” Allen stated in an email.

Workers Became Lead-Poisoned at Exide in a Matter of Months

Our investigation found that in California, communication about workers with high levels of lead in their blood was nearly nonexistent between Cal/OSHA and CDPH, the two agencies responsible for keeping workers safe from lead hazards.  Between 1994 and 2014, CDPH tracked over 2,300 cases of workers with blood-lead levels at or above 25 micrograms per deciliter at Exide’s Vernon plant; yet CDPH referred the Vernon plant for an inspection to Cal/OSHA just once, in 1996.

Along the way, there were health experts who saw warning signs.

Infographic:  Kelly Bergkamp

The Oakland-based Center for Environmental Health (CEH), which was concerned about airborne lead spreading from smokestacks at the Vernon plant to surrounding L.A. neighborhoods like Boyle Heights, filed a 2008 lawsuit to force the state to warn residents about lead that was known to be escaping the plant. “We also wanted to know what was going on inside the plant,” Caroline Cox, a CEH staff scientist, told Capital & Main. To figure that out, the nonprofit asked CDPH in 2009 for a year’s worth of blood-lead tests of Exide’s Vernon employees.

CDPH provided Cox with this data for more than 152 workers. Most employees had several tests per year.  “What I was most struck by were results from workers who clearly were brand-new employees,” Cox said. “These people started out like an average person — whose blood-lead level is around two micrograms per deciliter. After a few months on the job, [I saw that] in some cases these readings shot up to alarming levels. Essentially, people were getting lead-poisoned in just a few months on the job. That tells you a lot about what conditions were like inside, and you just worried that the workers perhaps had no idea what they were getting into.”

An Obscure Department Failed To Sound the Alarm

The Occupational Lead Poisoning Prevention Program (OLPPP) is a department within CDPH that tracks blood-lead levels and offers advice and expertise to companies to reduce lead-based health risks.

“You have an organization receiving data about spikes in blood-lead levels. That should spur some sort of action. If that didn’t happen, why?”

Our investigation found that between 1994 and 1996, OLPPP managers were very concerned about the Vernon plant’s lead problem. For example, in 1995, OLPPP determined that, at what was then called GNB Technologies, “compliance plan and medical surveillance plan are seriously deficient; written respiratory protection program is confusing and inconsistent; GNB has no protocol for systematically reviewing BLL [blood-lead levels].” In 1996, OLPPP referred the case to Cal/OSHA for inspection.

That 1996 referral inspection appears to be the last time the two agencies teamed up to limit worker exposure to lead at the Vernon site. CDPH remained aware of lead-exposed workers, yet appears not to have communicated concern or crucial data with the one agency that could levy fines or shut down the plant if it were deemed to be too hazardous.

Mariano Kramer, a former Cal/OSHA district manager who was in charge of the 1996 inspection, said he was troubled to learn that CDPH did not continue to refer information about lead-poisoned workers to Cal/OSHA. “What concerns me is that you have an organization [CDPH] receiving data about spikes in blood-lead levels. That should spur some sort of action or reporting. If that didn’t happen, I’m wondering, Why? What’s the point of medical surveillance if you don’t use it?”

CDPH declined repeated requests for interviews and declined to answer specific questions by email for this story.

After being provided with documents obtained by Capital & Main and the University of Southern California’s Center for Health Journalism program, Assemblyman Ash Kalra (D-San Jose) wants to change the system that California has been operating under, to make it correspond to the federal lead directive. Last month, based on our research, Kalra introduced Assembly Bill 2963, which would require the “State Department of Public Health to report to the Division of Occupational Safety and Health any instance where a worker’s blood-lead level is at or above a certain amount.”

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