July 2009

Will Proposed Elimination of the Office of Planning and Research (OPR) Affect Climate Change Laws?

Proposed Assembly Bill 180 (the State Budget Act, as recently amended but not enacted) is proposing to eliminate the Office of Planning and Research (OPR) by January 1, 2010 in an effort to address the state budget shortfall. OPR’s responsibilities regarding the State Clearinghouse and Planning Unit for the California Environmental Quality Act (CEQA) would be transferred to the California Air Resource Board (CARB). The question remains whether CARB, which favors a more detail-oriented and ambitious plan to cut greenhouse gases than OPR, will assume more CEQA GHG regulation authority in the future if this Bill passes.

Recall that AB 32, the Global Warming Solutions Act of 2006, requires the State to reduce GHG emissions to 1990 levels, as determined by CARB. In 2007, SB 97 established that GHGs should be included in CEQA and in January OPR proposed draft amendments to CEQA Guidelines that include guidance for analyzing GHGs under CEQA.

OPR first requested CARB's assistance with the Guidelines and CARB released a draft document for GHG significance thresholds under CEQA that outlines an ambitious sector-based approach that determines a project’s significance level based on both quantitative standards and qualitative, performance-based standards. OPR chose not to include ARB’s recommendations in its final Guidelines, which recognize that although climate change is ultimately a cumulative impact, not every project with GHG emissions must be determined to contribute to significant, cumulative impacts.

The Natural Resource Agency, the entity with final control over OPR's Guidelines, has released a Notice of its proposed amendments to the Guidelines. Since the Natural Resource Agency must pass the Guidelines by January 1, 2010, CARB does not have direct authority to influence the Guidelines even if the Bill passes.

Only time will tell if ARB will assume any residual or additional GHG regulatory duties if the dissolution of OPR occurs. As of now, it is just food for thought.

Note that CARB is also the state agency in charge of setting regional greenhouse gas targets through SB 375.

California Court of Appeal Refuses to Invalidate Local Rules Prohibiting Police Officers from Contacting Individuals for the Sole Purpose of Determining Immigration Status

On June 17, 2009, the California Court of Appeal, Second District held that federal law does not preempt municipal rules that prohibit police officers from contacting an individual for the sole purpose of determining the individual's immigration status. Specifically, the Court addressed the legality of Los Angeles Police Department Special Order 40, which governs interactions with illegal immigrants. SO40 prohibits LAPD officers from initiating police action with the sole objective of discovering the immigration status of an individual, and arresting individuals for illegal entry into the United States. In sum, the Court found that LAPD SO40 does not violate the Supremacy Clause of the U.S. Constitution, and that the rule is not preempted by federal statute. Read the text of the full opinion here.