SACRAMENTO, CA — The California Chamber of Commerce has added SB 49 (de León ; D-Los Angeles) to the job killer list because the bill creates substantial uncertainty for businesses and greatly increases the potential for costly legislation.
SB 49 is scheduled for hearing in the Senate Natural Resources and Water Committee on March 14.
SB 49 would require the state agencies to adopt the baseline federal standards in the federal Clean Air Act, the federal Safe Drinking Water Act, the federal Water Pollution Control Act, the federal Endangered Species Act, and “other federal laws” defined as unidentified laws “relating to environmental protection, natural resources, or public health.”
The bill would also prohibit a state agency from amending or revising its rules or regulations in a manner less stringent in its protection of workers’ rights or worker safety than standards established pursuant to federal law in existence as of January 1, 2016.
According to CalChamber’s bill letter, although we appreciate California’s concerns regarding the uncertainty at the federal level associated with the environmental laws identified in the bill, SB 49 is a premature, overbroad, and vague response to things that could happen in the future while in the present creating substantial uncertainty for businesses in advance of any such potential changes and correspondingly greatly increasing the potential for costly litigation.
If there is interest in preserving various federal environmental laws, the CalChamber believes a targeted approach where state agencies respond to federal action on a case-by-case basis is more appropriate.
Offering one example of the impact of SB 49, a practicing environmental attorney explained: “If passed, Senate Bill 49 would nearly double the number of listed species under [the California Endangered Species Act (CESA)] by adding 74 animals that are currently only protected under the federal Endangered Species Act (federal ESA). Further, Senate Bill 49 would arguably protect federal listed species from habitat modification that rises to the level of ‘take’ under the federal ESA, a protection those species do not currently enjoy under CESA. This could create many headaches for developers, in particular as they deal with a state agency that does not have the resources or experience to process incidental take permit applications for species listed only under the federal ESA.”
Violates Single-Subject Rule
CalChamber’s analysis of SB 49 also finds that the overbreadth of the bill further appears to run afoul of the constitutional “single-subject rule” principle.
The constitutional section states: “A statute shall embrace but one subject, which shall be expressed in its title.” SB 49 clearly deals with more than one subject (at a minimum with the inclusion of workers’ rights and worker safety standards in the same bill), which is contrary to the single-subject rule
Private Rights of Action
The private rights of action contemplated in SB 49, if triggered, would essentially create a Private Attorneys General Act (PAGA) for environmental laws similar to PAGA in the labor and employment context. PAGA in the labor and employment context has resulted in various shakedown lawsuits that only increase costs to businesses without providing any corresponding benefit to employees.
The private rights of action contemplated in SB 49 would similarly merely create an additional avenue of costly litigation against businesses that will limit their ability to grow their business and workforce in California, while also adding cases to the overburdened dockets of the judicial system.
According to CalChamber’s bill letter, federal courts have created specialized procedures to deal with the citizen lawsuits relating to federal environmental laws due to the complexities created by such lawsuits. Without having such institutional procedures in place, lawsuits under the contemplated private rights of action in SB 49 would most likely hold businesses hostage for an even greater period of time while the overburdened California courts attempt to deal with the influx of such cases and the unique complexities associated therewith.
Vague language in SB 49 as to when the private rights of action would be triggered also raises questions that would need to be settled by the courts, which will result in many pending cases sitting on the dockets for years without any certainty for businesses while they struggle with increased litigation costs.
2017 Job Killer Bills
With the addition of SB 49, there are currently six bills on the job killer list. CalChamber will continue to identify other job killers as bills are amended or further analysis reveals detrimental impacts of other legislative proposals.
The California Chamber of Commerce (CalChamber) is the largest broad-based business advocate to government in California. Membership represents one-quarter of the private sector jobs in California and includes firms of all sizes and companies from every industry within the state. Leveraging our front-line knowledge of laws and regulations, we provide products and services to help businesses comply with both federal and state law. CalChamber, a not-for-profit organization with roots dating to 1890, promotes international trade and investment in order to stimulate California’s economy and create jobs. Please visit our website at www.calchamber.com