How Calif. Mid-Terms Will Decide the Future of Federal Climate Laws

How Calif. Mid-Terms Will Decide the Future of Federal Climate Laws

History is in the making in California with one of the biggest political battles over climate set for the state's mid-term elections this fall. The November ballot represents the Normandy Invasion equivalent for national climate legislation -- a historic battle whose outcome will likely have major impact on the future of efforts to curb greenhouse gas emissions.

In addition to electing a new governor in November, the more than 23 million elegible Californian voters will have the chance to cast a ballot on Proposition 23, an initiative designed to delay or nullify AB 32, the landmark climate legislation enacted in 2006 and considered to be a meaningful part of Governor Schwarzenegger legacy.

Widely regarded as the most aggressive on the planet, AB 32 calls for a host of GHG reduction measures, including the implementation of a cap and trade system by 2012. The Public Policy Institute of California predicts that more than $150 million will be spent trying to sway voters either way on AB 32, the most on any initiative in California's history.

Meg Whitman, the Republican nominee for governor, has stated her intention to postpone AB 32 for one year if elected. Jerry Brown, her Democratic opponent, has been a strong supporter of climate change legislation.

Let's look at three possible scenarios California voters could choose come November:

1. Preservation of AB 32 and Election of Jerry Brown

Should voters choose to uphold AB 32 and also elect Brown, who has stated his opposition to outright suspension of the statute, California will move to implement cap and trade by 2012 -- with the potential to become the first state in the U.S. to put a price on carbon. This fast track approach will put California at odds with those preferring to stall or prevent action and with their federal representatives in Washington, who will surely seek legislation to either pre-empt or restrict California's plans.

Given the relatively broad support in Congress for climate legislation, as evidenced by the passage of Waxman-Markey, it is not likely that a federal response would terminate California's cap and trade plans without simultaneously establishing an alternative market-based approach.

In fact, given the divisiveness that has characterized the current session of Congress, it is hard to imagine collecting the 60 votes in the Senate required for a bill that would terminate an AB 32-driven California cap and trade plan. Consequently, should California continue with its plan to implement cap and trade by 2012, Congress will undoubtedly pass meaningful climate legislation by 2011, implementing a federal ruling to set a price on carbon by that time.

2. Preservation of AB 32 and Election of Meg Whitman

If California voters preserve AB 32 but elect Whitman, who favors suspending AB 32 for a year, the result would still be to accelerate federal climate legislation. In this outcome, the California legislature and newly-elected governor will be tasked with honoring the voters' decision. History has proven it dangerous for California governors to ignore the will of the California electorate. Therefore, while this outcome might slow the charge, it will not terminate it, and Congress will still be forced to deal with California's cap and trade plans.

3. Veto AB 32

Should California voters decide to abolish AB 32, the outcome could be the most dramatic for U.S. climate debate. California has a well deserved reputation for enacting regulations deemed necessary to protect the environment, such as the state's air regulations of the 1960s and 70s and today's vehicle emissions standards.

Should the voters decide to nullify AB 32 and, in so doing, abandon a 40-year tradition of innovation in environmental action and policy, it would send the message to the world that climate change legislation in California is simply not affordable at this time. The result would fuel the arguments of those federal legislators favoring no action and would quell the enthusiasm of even the most ardent advocates of climate change legislation. Delay in the passage of any significant federal climate legislation is highly likely under this scenario.

Other Factors -- Climate Change as a Threat to National Security

In assessing the effect of the potential outcomes of the AB 32 battle, attention should be paid to the Quadrennial Defense Review Report, released by the U.S. Department of Defense in February 2010. For the first time in such a report, the DOD declared that it must deal with the impacts of climate change as a matter of national security. Given the elevation of climate concerns to a level of national security and that, as a nation, we have always found a way to finance our national security needs, it seems logical that we will find a way to finance the need to deal with the climate crisis.

The Quadrennial Review pronouncement makes climate change legislation inevitable, even if not imminent. And the daily, live broadcasts of the disaster in the Gulf, even though they have now begun to fade, will likely hasten the arrival of such legislation at the federal level.

Lawrence E. Goldenhersh is president and CEO of Enviance, Inc., a proven provider of Internet-based software solutions that help companies manage carbon and other regulatory risks. More information is available at, including a comprehensive fact sheet on AB 32.

Flag photo CC-licensed by maveric2003.