Public Nuisance Lawsuits Could Compound Cloudy California Economic Forecast

Government regulationToday, the sun is shining on the California economy, with unemployment at a record low. Our state is the fifth largest economy in the world with more billionaires than anywhere else in the country. State government is also doing well. Governor Brown inherited a $26 billion deficit upon entering office. Today, the state has a surplus of nearly $16 billion. This is good for businesses and good for the California families they support.

But there’s no guarantee those sunny days will last. In fact, many economists predict the dark clouds of recession in California’s future. Recessions are always particularly troubling for California because of our high reliance on wealthy taxpayers for revenue. Austerity could be on the way, as well as tough times for California businesses in a slower economy.

Another storm cloud looms on California’s horizon as well. California cities are increasingly considering filing so-called “public nuisance” lawsuits against manufacturers, alleging that manufacturers contribute to climate change and are at least partially responsible for sea level rise and wildfires. High-profile cases brought by San Francisco and Oakland have already been dismissed, as has a lawsuit brought by New York City. However, mayors and public officials in other California municipalities and in states like New York, Colorado, Rhode Island, Maryland and Washington continue to threaten manufacturers with lawsuits labeling them as public nuisances, seeking to both make political statements and score financial paydays.

California’s major cases aren’t out of the woods yet either. San Francisco and Oakland are appealing United States District Judge William Alsup’s dismissal of the case, with the cities’ opening brief due to the Ninth Circuit by December 10. Judge Alsup ruled, as did his counterpart in New York City’s case, that the problem of climate change is best addressed by the legislative and executive branches.

Fortunately, a number of California mayors are standing firm against these misguided lawsuits. Those include Irvine Mayor Don Wagner, who has publicly opposed climate litigation and noted that the courts are poor choices for handling climate policy decisions. Wagner has been joined by Huntington Beach Mayor Mike Posey, who warned in California Political Review that public nuisance lawsuits could eventually target municipal governments themselves and argued that working alongside manufacturers, not suing them, is the best way to achieve economic goals and job growth. La Habra Mayor Tim Shaw echoed this idea, stating that municipalities should refrain from filing frivolous climate lawsuits since mayors need to make it easier, not harder, for businesses to create more jobs.

These mayors and others, of course, have real reason for concern. California is hemorrhaging both people and businesses already. A November U.S. Census Bureau report says the Golden State has had 142,932 more residents exit to live in other states than people arriving from other states. This outflow is 11% higher than in 2015 and was second nationally only behind the New York and New Jersey area. Businesses are exiting too. Carl’s Jr., a longtime California icon, has relocated to Nashville. Toyota said goodbye to Torrance and will completely relocate its U.S. headquarters to Dallas in the coming weeks. Joining Toyota in Dallas is Jacobs Engineering Group, which is moving its $6.3 billion firm from Pasadena. Add to that growing list Nissan North America, Jamba Juice, Numira Biosciences, Chevron and Kubota Tractor and it’s easy to see why continuing to target manufacturers with lawsuits is a losing choice for the California economy.

Rather than running to the courthouse in pursuit of a failed legal strategy that will do nothing to help the environment, public officials should join with manufacturers in addressing the problem of climate change. This approach is already producing results. For example, Bloomberg reported last year that the five biggest energy manufacturers reduced their emissions by an average of 13% between 2010 and 2015, outpacing the U.S.’s 4.9% reduction over the same time span. Overall, manufacturers have reduced their emissions by 10% while increasing their overall value to the economy by 19% over the last decade. That progress is commendable.

Manufacturing is too critical to the California economy to continue threatening it. More than 10% of the state’s total economic output and about one in twelve workers depends on California’s $300 billion plus manufacturing sector. With businesses already fleeing high taxes and a less-than-welcoming business environment, the time is now to work toward productive solutions that both help the environment and protect manufacturing jobs. If California wants to avoid a gloomy economic future, local leaders must say no to public nuisance lawsuits that jeopardize manufacturers and the jobs they provide to hard-working Californians.

Whit Peterson is Director of Government Affairs, Greater Irvine Chamber

Public Nuisance Lawsuits Wrong Path for Cities

Sunset_at_Huntington_BeachFortunately, some public officials think municipal government and the courts shouldn’t be making environmental policy. That was the topic of discussion at a roundtable convened by the Manufacturers’ Accountability Project this summer. Held close to the one-year anniversary of the first public nuisance climate lawsuits popping up in California, the event featured local city mayors like me, as well as representatives from the California Manufacturers & Technology Association. Our message, public nuisance lawsuits are reckless and are economically dangerous for California.

There is no real foundation for these lawsuits at all. The U.S. Supreme Court ruled unanimously years ago that corporations cannot be sued over greenhouse gas emissions under federal common law. That’s just one of the reasons why Judge William Alsup of the U.S. District Court for the Northern District of California dismissed a public nuisance lawsuit brought against energy manufacturers by San Francisco and Oakland. Like other judges before him, Judge Alsup stated clearly that trying to label energy companies as public nuisances isn’t going to work.

The truth is these cases don’t make sense from a legal point of view. They try to take matters best decided by elected officials and put them in the hands of judges. The reason? Climate activists have failed over and over to get their way, so they’re trying an end around. In the process, they’re filing lawsuits that could cost real jobs.

Manufacturing supports countless jobs in communities like Huntington Beach. When we endanger those manufacturers, we threaten jobs and growth. We also send the message that the very businesses who are on the right side of climate change, the manufacturers who have worked hard to lower their greenhouse emissions, should be punished instead of praised. I believe we should be cooperating with manufacturers to continue our progress, not suing them.

There’s no secret why lawyers like these lawsuits. Records show that Hagens Berman, the firm behind the San Francisco and Oakland public nuisance lawsuit, would have raked in 23.5 percent of the payout to those cities had Judge Alsup not thrown out the lawsuit. San Francisco and Oakland officials thought they could collect millions for their city budgets.

Huntington Beach has no plans to go down the public nuisance path. We understand the value of a healthy economy and of working alongside manufacturers to meet our goals. We also understand that public nuisance lawsuits could be aimed at anyone who uses fossil fuels, including a municipal government like ours.

We need to leave environmental policy to Congress. Cities across California shouldn’t be in the business of setting global climate policy. That’s not our job. Mayors and other local officials should focus on the work that keeps their communities growing and remain committed to fighting anything, including these lawsuits, that endangers the jobs of the people who elect them.

Mike Posey is the mayor of Huntington Beach

Assemblyman Travis Allen Wants Your Vote for California Governor

On the KTLA 5 News, Huntington Beach Assemblyman Travis Allen (R) lays out his campaign platform for California governor, including drought response and a plan to repeal Gov. Brown’s gas tax.

Scientists Criticize Coastal Commission Over Huntington Beach Desal Concerns

Huntington Beach DesalSACRAMENTO – The Coastal Commission’s stated concern that a proposed Huntington Beach desalination plant’s intake pipes pose a threat to small and microscopic plankton has been rebutted in a letter from three prominent California marine biologists.

Anthony Koslow, Eric Miller and John McGowan — marine biologists at Scripps Institution of Oceanography in La Jolla — were responding to comments made at a Dec. 1 panel about ocean desalination in Ventura County by Tom Luster, the agency’s lead staffer on the desalination issue.

Luster actually had cited Koslow, Miller and McGowan’s research in arguing against open intakes given a 75 percent reduction in plankton off Southern California since the early 1970s. Citing the Scripps research Luster said it would be “hard to maintain and enhance marine life like the Coastal Act requires in a situation like this and so open intakes have a hurdle to overcome.”

In a sternly worded Dec. 29 rebuttal letter, Koslow, Miller and McGowan said Luster’s comment reflected “an inaccurate understanding of our research,” adding that their paper showed “many of the taxa are predominantly distributed offshore but share the same trend as more coastal taxa.”

“It is therefore not reasonable to attribute this decline to the impact of coastal development or nearshore power-plant intakes,” the scientists wrote. “We ask that you refrain from repeating your Ventura forum comments, or anything similar, as it presents an almost exactly opposite conclusion to that obtained by our research.”

The Scripps researchers’ conclusion was that large-scale ocean forcing, not local coastal processes, are behind changes off the Southern California coast since the 1970s. They added that they hoped their science could “inform regulatory decisions wherever applicable, but the science needs to be interpreted correctly.”

In an emailed response, Luster said his point was that the decline in plankton populations had made it difficult for the new proposed project, which he said “would represent an additional adverse effect to meet the Coastal Act’s requirement to maintain and enhance marine life productivity.” But Miller — one of the Scripps researchers — reiterated that their study, which found that environmental forcing had reached tipping points in 1976 and 1989, “did not detect an influence of power plant cooling water intakes on nearshore fish populations.”

“It’s a mystery to me how my quote was misinterpreted,” Luster said, in an interview.

The question at issue is no mere academic matter. The future of the Huntington Beach desalination plant isn’t just about one proposed facility, but about the statewide future of a technology that turns saltwater into drinking water. That’s a particularly important question as the state begins to emerge from a long-running drought. Decisions by the commission and other state agencies on the Huntington Beach plant will help decide whether developers pursue a number potential plants up and down California’s coastline.

A desalination plant went online last year in the north San Diego County city of Carlsbad, but the makeup of the Coastal Commission and state regulations have changed since the approval process for that facility. As the Los Angeles Times reported, the state water board “directed desalination plants to install wells — offshore or on the beach — or another type of subsurface intake that the state says would naturally filter out marine organisms.” However, the plant’s supporters point out that state laws require subsurface intake technologies to be technically, economically, socially and environmentally feasible.

According to Poseidon Vice President Scott Maloni, the harm to plankton is minimal.

“There are estimated to be 115 billion larva in the source water of the desal plant,” he said. “Our estimated entrainment is 0.02 percent. Put another way, for every 10,000 fish eggs the desal plant is anticipated to entrain two. That means that 9,998 fish eggs are not at risk. This entire debate is over the potential loss of two out of 10,000 fish eggs in the desal plant’s source water, 99 percent of which die of natural mortality.”

The latest fracas over the Huntington Beach desalination plant bolsters Coastal Commission critics who believe the commission’s problems with the plan stem more from its hostility to growth than any real concerns about the fate of the food chain’s lowliest members.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Should desalination play a bigger role in California’s water future?

As reported by the Los Angeles Daily News:

When it comes to finding new sources of drinking water for residents of a coastal state mired in drought, some say desalination gets little respect in Sacramento.

“Desalination should be a priority,” said Assemblywoman Ling Ling Chang, R-Diamond Bar, who introduced a bill last week that would write first-time goals into the state water code for a percentage of drinking water originating from the ocean.

Chang, who once served on the Walnut Valley Water District board, said she was inspired by Singapore and Australia, which fought their way out of extreme droughts in part by building desalination plants. Following operation last year of the $1 billion Carlsbad desalination plant in San Diego County, the Huntington Beach community is in the final stages of building a 50 million-gallon-per- day plant that may open by 2019, according to the website for Poseidon Water, project developer for both plants. …

Click here to read the full article

Giant O.C. Desalination Plant Nears Completion

The massive $1 billion Carlsbad desalination plant — the largest in North America — begins normal operations this month after a long legal and regulatory odyssey. The plant is expected to provide 54 million gallons of water a day, or about 7 percent of the county’s demand.

At an event held Monday at the oceanfront facility 30 miles north of San Diego, speakers praised the wisdom of the San Diego County Water Authority in teaming with project developer Poseidon Water in building the plant over the objections of the Metropolitan Water District of Southern California. They said the desal plant should inspire construction of similar facilities across drought-plagued California.

Huntington Beach DesalBut Poseidon’s bid to build a $900 million desal plant in Huntington Beach shows that the drought hasn’t necessarily changed anything in terms of making the legal and regulatory obstacle course easier to navigate. As the OC Weekly points out, Poseidon has been trying to secure support and approval for the Orange County project for at least as long as it pursued the Carlsbad project, first proposing a design for a desal plant there in 1998.

How far have company officials gotten? An August story in the Orange County Register noted that there is not even established acceptance of the proposed location of the facility:

The push to look at other locations is reflective of a perception among anti-Poseidon activists that the company has foisted its project upon an unwitting public, that it’s proposing a plant no one asked for, and that the plant isn’t even needed in these times of conservation and water-use cutbacks. Recycling technologies are improving, they point out, and there’s talk of storing storm-water for later use as drinking water.

Poseidon has good reasons for locating its proposed plant near the AES power plant in Huntington Beach. There’s already an open ocean intake pipe at the location, a pipe used to bring in seawater to cool down the power plant.

Surfrider group: Orange County project ‘the worst offender’

While the California Coastal Commission ended up siding with Poseidon in approving the Carlsbad plant, it’s not clear if the commission is prepared to do the same with the Huntington Beach proposal. Environmentalists assert the desalination plant poses significant risks to offshore marine life in Orange County. The Surfrider Foundation’s Newport Beach chapter is leading the charge, calling the proposed project the most damaging yet proposed in California:

There are a number of desalination technologies, and if it is not done properly, the seawater intake process can unnecessarily kill marine life.  Desalination also produces a highly concentrated brine discharge that degrades water quality and marine life habitat if not properly diluted. …

There are numerous ocean desalination facilities being proposed in California, all in various stages of planning or permitting. Many of the proposed facilities have not been designed to minimize degradation to marine habitats and water quality, nor are the proposals being thoroughly evaluated by any government agency for their cumulative impacts statewide. The California State Water Resources Control Board is currently in the process of collecting scientific data on the adverse impacts of ocean desalination, and how best to minimize those impacts. But some proposals are moving forward without having adopted the recommendations of the science community – Poseidon’s project proposal is the worst offender.

Nevertheless, the project has bipartisan political support, and has begun to make the sort of process gains that Poseidon did with its Carlsbad proposal several years ago. The Los Angeles Times has details:

In May, the board of the Orange County Water District approved a non-binding term sheet with Poseidon to negotiate the price of water from the plant and to determine who would be responsible for various aspects of the project.

[Poseidon Vice President Scott] Maloni said he expects the Orange County district to negotiate a 50-year deal with Poseidon should the project be approved by the California Coastal Commission sometime in the spring.

A key part of the term sheet is that Poseidon must prove to the Orange County district that the Carlsbad plant can operate without a hitch for 90 consecutive days.

“We’re probably a year away from executing a final water purchase agreement [with the Orange County Water District],” Maloni said. “Carlsbad would be in operation for a good amount of time.”

Originally published by CalWatchdog.com

‘Surf City’ First in Nation to Repeal Plastic Bag Ban

On Tuesday night, on an overwhelming 6-1 vote, the city council of Huntington Beach, California–which is officially known as “Surf City, USA“–directed the city staff to begin the process of repealing a policy that bans the use of plastic grocery bags, and requires grocery stores to charge a ten-cent fee on paper bags.

This coastal city in Orange County, which boasts 9.5 miles of beautiful beaches, is about to make history, as never before has a city with such a bag ban ever repealed it.

The city’s bag ban was an issue in last year’s council elections, and all four council members who won election were public in their support for repealing it, defeating two incumbents who had voted in favor.

Breitbart News spoke with Councilman Mike Posey, who placed the repeal onto the council agenda, and made the motion for its passage. He was crystal clear on his motive. “The intention of the bag ban was to reduce litter and improve the environment. We have no verifiable proof that our local bag ban has done anything to reduce locally sourced and discarded single-use plastic bags. Littering of any kind is unacceptable, but we already have laws in place to address littering.”

Posey added, “”I believe in protecting the environment, and I treasure the beach, ocean, air and environment. I drive a clean diesel-powered car and telecommute a few days per week. I am not necessarily an environmentalist but am steadfastly environmentally conscious. I also value freedom. However, litter from plastic bags is caused by misuse and not use, and I object to punishing everyone because some people choose to litter.”

Other Councilmembers supporting the vote to begin the bag ban repeal process were Dave Sullivan, Barbara Delgleize, Erik Petersen, Billy O’Connell and Dave Katapodis (the latter of whom actually voted for the original ban, but who has apparently changed his mind). Mayor Jill Hardy cast the lone dissenting vote.

Former mayor Matthew Harper, who had been on the losing end of the ban vote in 2012, but who was just elected to the California State Assembly this last November, lauded the actions of the city council.

“The vote to begin the process of repealing the ill-advised ban is a step forward for the local community,” he said. “Whether you look at this as a consumer choice issue, or from the perspective that the ban seeks to correct an alleged problem that is not prevalent on our beaches, I applaud the council’s overwhelming vote.”

The city’s plastic bag ban/paper bag fee ordinance was adopted in 2012 amidst much controversy, with the Surfrider Foundation, major proponents of the ban, committing to cover the city’s $20,000 cost of conducting a necessary environmental impact report.

While the city moved forward at the time, ultimately adopting the ban, it is worth noting that the Surfriders never did make good on their pledge.

Last year, in the final hours of the California legislature’s session, legislators put SB 270 onto Governor Jerry Brown’s desk, and he signed the statewide ban on plastic grocery bags, which required grocers to charge at least ten cents for every paper bag used.

However, right after Brown signed the bill, the American Progressive Plastic Bag Alliance, an industry group, announced that it would seek to gather the signatures necessary to trigger a statewide referendum on the bill.  A few months later they turned in over 800,000 signatures of registered voters, well above the required 504,760 number.

The effect of qualifying the referendum is that SB 270 does not go into effect, and instead the question of whether to ban plastic grocery bags and mandate a fee on paper bags will appear on the 2016 general election ballot.

For years more extreme environmental activist groups had been trying, without success, to pass a statewide ban on plastic bags. Year after year, the effort was beaten back by a coalition made up of bag manufacturers, grocers, liberty-oriented groups, and groups concerned that a bag ban is regressive and adversely impacts the poor.

The lynchpin for the ban finally passing was the placing of the mandatory ten-cent fee on paper bags into the bill, with the profits from that fee (double the actual cost of the paper bags) going straight to the profit margin of grocery stores. That amounts to hundreds of million of dollars of years to grocers, and thus it is not surprising, if alarming, that with this economic incentive the California Grocers Association abandoned its traditional opposition to the ban, instead reversing its position to support it.

There is no doubt that Surf City’s repeal of its local ordinance will be featured in the statewide campaign against the bag ban on next year’s ballot.

Assemblyman Travis Allen (R), who along with Harper lives in and represents Huntington Beach and who testified to the Council in support of repealing the ban, told Breitbart News, “Huntington Beach reversing their ban is proof that a one-size-fits-all statewide ban on plastic bags is a terrible idea.”

The projected timeline for the final repeal of Huntington Beach’s ban, after the results of an environmental impact report, and the requisite multiple votes on the repeal, is late May.

Originally published in Breitbart CA.