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CA Air Resources Board (CARB)

ARB Adopts New Guidelines for Climate Investments and Sets New “Staggered” Terms for Members

4:28 PM PDT on July 26, 2018

Achievements to date of California’s climate investments, which span many agencies and programs.

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Despite objections from several members of the board and of the public who raised questions about the process, the California Air Resources Board (ARB) today set new six-year terms for each of its fourteen appointed seats. What were previously at-will appointments—which could be terminated at any time by the appointing authority, be it the governor or the legislature—will now become set six-year terms, ending variously in December of this year, in 2020, and in 2022.

These are not term limits, per se, because members can be reappointed indefinitely. The staff proposal set the “environmental justice” seats, which are appointed by the legislature, plus another one currently held by an outgoing member of the San Diego Pollution Control District, to end their current terms as of December. The EJ seats are currently held by Hector De la Torre, appointed by the Assembly, and Dean Florez, appointed by the Senate.

Those members can be reappointed for new six-year terms starting in January, but they will go through a hearing process with their respective appointing bodies.

The decision also means that other members will hold their seats well into the new governor's term, five until 2020 and five until 2024. A sixth seat, currently vacant, will also hold a term that expires in 2024. All of these are governor appointees.

ARB chief counsel Ellen Peter, who presented the staff proposal, said that the reasoning was in part because it would be easier on the new governor, whoever it is, to not have to make too many appointments right away.

Board member Florez was not happy, not so much with the proposal itself but with the process that created it. “What was the reason this was only posted this morning?” he wanted to know. He questioned the “optics” of ending the terms of the two EJ seats right away, while keeping the other appointments firmly in place into the new administration.

Florez said he would have wanted to see some alternatives presented, and be able to discuss the proposal with the communities he represents, but the lack of notification made that impossible.

“This is a momentous vote,” he said. “I would think the next governor would be very concerned.”

Peter said the late notice was to avoid the potential for board members to talk to each other about the proposed terms, which could be a violation of open meeting laws. It's unusual for a board to be left to figure out for themselves how to make a shift like this. The issues were "complicated," and staff aimed to prevent major turnover on the board all at once, which is why they divided the appointments into three groups.

"This is not a good process," said Florez. "It is not reflective of who we are as a board." He made a motion to delay the vote until the September meeting, but it was defeated. The board ended up accepting the staff proposal.

One of the things this means is that Chair Mary Nichols will keep her seat on the board at least through 2022. “I have seen some accounts that I had already decided to appoint myself chair until 2022,” she said. “But I want to make it clear that while the chair is a member of the board, the chairmanship is up to the governor. The next governor can decide who that is—he can choose from anyone on the board, or make an appointment to any empty seat and make that person chair.”

“To any gubernatorial candidates out there who may be listening,” she said, “I want to make it clear that we are not trying to usurp your authority.”

At the same meeting, the board adopted updated guidelines for all California climate investment programs. Chair Nichols noted that the ARB doesn't have any actual authority over allocating funds. “We can't do other than advise to make sure the monies are at least tracked, that there's transparency and accountability, and [require] an overview of the overall cost effectiveness of different types of projects,” she said.

Several recent statutes have set new requirements for climate programs--for example that they invest more in disadvantaged and low-income communities. Programs that receive money from cap-and-trade are  still required to reduce greenhouse gas emissions, but new laws require that they do so in a way that brings other benefits such as better air quality and community economic benefits.

The ARB also plans to incorporate other ideas into the new guidelines, including fostering job opportunities and training, especially for communities that need them the most, and providing technical assistance to potential applicants for funding.

The new guidelines also change a requirement from "minimize" harm to "avoid" harm, and elevates the notion to a guiding principle. “Programs have to consider trade-offs,” said staffmember Bailey Smith. “This principle is set at getting agencies to identify potential burdens [such as displacement or exposure to local air pollution] early in the process.”

The Board approved the proposed guidelines, which will now be finalized and published.

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