JUICE: Gov. v. Legislative Muscle

By Published On: October 16, 2009

If California is serious about ensuring that one-third of customers’ electricity comes from renewable resources, the state needs a legally armored vehicle to reach that finish line. Queries by Circuit about the legal strength or weaknesses of the executive order calling for a 33 percent renewable energy portfolio standard, including to the Attorney General’s Office, Legislative Counsel, Legislative Analyst’s Office, and the authors of the renewables legislation remain unanswered. Research and interviews with outside attorneys, however, provides clues. Proponents of the 33 percent renewable legislation that got knocked out of the running said Governor Arnold Schwarzenegger’s order lacks the force of law. They provided few specifics. Opponents of the legislation countered that the governor’s fiat strips out unnecessary features that would slow down, or thwart, the goal of a less polluting energy future. Seeing where the rubber meets the renewables road is less than clear. Regardless of one’s view about the vetoed 33 percent renewable portfolio legislation--SB 14, AB 64 and two companion bills--it would have included enforceable requirements if enacted. The executive order, on the other hand, directs the California Air Resources Board to set rules for a one-third alternative energy standard by 2020. That raises questions about the enforceability and durability of the governor’s fiat, particularly if rules created to make way for a higher renewable target are challenged after months of work and expenditures of significant amounts of public and private resources. The order directing administrative action is not a statutory mandate and probably is unenforceable. It also lacks any real cop on the beat. “Some executive orders are largely ceremonial and without legal clout, and this may be one of them,” said Steven Weismann, University of California, Berkeley, Boalt Hall lecturer and Associate Director for the Center for Law, Energy, and the Environment. The governor proclaims that his order is rooted in the state’s climate protection law, AB 32, which mandates the Air Board to curb carbon emissions in the state. The order specifically points to the Air Board scoping plan for achieving a 25 percent emissions reduction in the state by 2020, and its recommendation for a 33 percent renewable power standard. Stretching the Air Board’s reach to include a renewable energy standard, however, could collapse under a legal challenge by discontent stakeholders--of whom there are many. The Air Board’s authority to require utilities--both public and private as called for by the vetoed legislative package--to increase the renewable component of their power supplies is unclear at best and may be lacking altogether. Under current law, the California Public Utilities Commission has the power to set a 20 percent renewable mandate for investor-owned utilities. There also is the issue of the politics behind executive orders. Executive orders and directives by the state chief are often used to pressure the Legislature to act, according to one energy lawyer, who asked not to be named. “One might argue that the previous executive order on a 33 percent renewables portfolio standard pushed the California Public Utilities Commission into action years after the California Energy Commission vetted the idea,” noted Arthur O’Donnell, Center for Resource Solutions executive director. Consider that Schwarzenegger urged the CPUC to implement a Million Solar Roofs program after legislation seeking to incent 3,000 MW of new solar power failed. After the CPUC launched its California Solar Initiative to provide more than $2 billion in subsidies for solar systems, SB 1 by then-Senator Kevin Murray was signed into law to bolster the administrative program. Last fall, the governor announced he would pursue legislation increasing the current 20 percent renewables mandate to 33 percent. The legislative leadership agreed to enact a bill within the first 100 days of the session. In the previous session in 2008, legislation by the author of this year’s SB 14, Senator Joe Simitian (D-Palo Alto), also called for a one-third renewable mandate. It was held by the Assembly at the end of the session (Circuit, Feb. 13, 2009). While the governor has the right to veto measures, in this instance there might be a separation of powers issue as the order seeks the same end as the legislation he vetoed--a 33 percent alternative power standard. There is no bright line between executive and legislative powers and if push comes to shove it’s a matter that would have to be decided in the California Supreme Court. At the federal level, there are two U.S. Supreme Court cases addressing the nebulous boundaries of executive authority. The most well known occurred during the Korean War when President Harry Truman attempted to take over the private steel mills after workers went on strike. The highest court of the land held Truman overstepped because his action had neither Constitutional nor Congressional backing. A possible mess could all be avoided if three is the lucky number and legislation enacting a 33 percent renewables mandate is revived. If it is early next year, and the third attempt manages to be signed into law, then the Air Board’s rules for reaching a one-third alternative power mandate would be secured with legal clout. Any attempts to legally derail the regulations would become moot and keep a subsequent governor from undoing the painstaking work of the Air Board.

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