California Exceptionalism

By: John Sims

Previous posts have described the decades-long efforts by California to deal with the challenge of air pollution.  Automobile-generated air pollution in the Los Angeles area forced California to start developing responses before Congress was ready to take action, and therefore when the Clean Air Act was passed by Congress in 1970 the legislation contemplated that California would continue to set a higher standard for itself than that mandated for the rest of the country.

Although the more demanding standards adopted for vehicles sold in California require sign-off by the Environmental Protection Agency, that has generally not prevented California from taking the lead in fighting air pollution.  Even when a given administration was not willing to take aggressive action itself to protect the air, it did not stop California from doing so.  A California vs. US dispute did arise over greenhouse gases during the administration of George W. Bush, but was quickly resolved once President Obama took office.

A highly informative recent article by Dale Kasler in The Sacramento Bee  gives a detailed history of the Clean Air Act as implemented in California, and calls attention to current tensions that may soon explode into open warfare.  EPA Administrator Scott Pruitt is enthusiastically giving effect to President Trump’s hostility toward regulatory efforts to reduce greenhouse gases.  Therefore, as described in detail in the article, there is now a serious risk that the EPA will deny California the certification it needs to fight Global Warming aggressively.

Kasler reports that Pruitt’s decision is expected by April 1.  Any action by the “Environmental Protection Agency” to prevent California from protecting the state’s environment would certainly fit well within the spirit of April Fool’s Day.

In a related development, on March 7 the United States Court of Appeals for the Ninth Circuit rejected a creative effort by the U.S. Department of Justice to obtain “mandamus” (essentially an emergency court order) to prevent the federal district court in Oregon from moving ahead with its planned trial in the Juliana case.  Young plaintiffs are challenging various federal policies that contribute to Global Warming and threaten their future.  The district judge concluded that the plaintiffs’ case is substantial enough to go to trial, and it is expected that the proceeding will involve extensive expert scientific testimony.

The federal government is desperate to prevent the trial because it will inevitably attract further attention to the issues surrounding Global Warming, but at least so far it has been unable to find a procedural mechanism to derail the lawsuit.  The mandamus request was denied.



One of the programs that falls under the umbrella of the Capital Center for Law and Policy at McGeorge School of Law is the Municipal Innovation Program. The Programs’ current project – the California Local Redistricting Project – which is done in partnership with California Common Cause, is excited to announce a new ordinance generator for local governments to fight redistricting abuse at the local level.

The new local ordinance generator, which can be found on the California Local Redistricting Project’s website, enables any user to easily draft a sample ordinance for establishing a local independent redistricting commission. With recent news of Congressional districts being thrown out in court, having a user-friendly tool available that allows local governments in California to create tailored ordinances creating independent redistricting commissions is an incredibly important step towards fighting redistricting abuse.

Below are some selected quotes from the California Local Redistricting Project’s press release announcing the new tool.

“California’s local governments are leading the way on redistricting reform. We view this tool as a big step forward towards providing local officials and advocates with the educational resources and tools they need to consider and implement reform in their communities.”- Nicolas Heidorn, Director of California Local Redistricting Project

“This is an exciting, game-changing model for promoting local reform. This is worlds away from the traditional, one-size-fits-all packaged approach to reform. The ordinance generator gives local advocates a smarter tool to craft a reform that is tailored to the needs of their communities. This is a pioneering approach to encouraging context-dependent model legislation that we hope gets imitated in other contexts.” – Professor Leslie Gielow Jacobs, Director of Capital Center for Law & Policy at McGeorge School of Law

“When incumbents, at any level of government, draw their own election districts, it is human nature to give themselves an electoral advantage. At the local level, we have seen redistricting used to expel political challengers and excise communities of color who, incumbents fear, may not vote for them. Independent, commission-based redistricting is vital to giving all Californians a voice in our democracy.” – Kathay Feng, Executive Director of California Common Cause


SB 320: Expanding Abortion Access for College Students

A quick note, this interview was recorded on 1/26. In the intervening week between the recording of this podcast and this post going live, the California State Senate voted on and passed SB 320 by a vote of 25-13, with two Senators not voting.

Professor Co and Jon Wainwright discussing SB 320 at McGeorge

One reason why I jumped at the opportunity to talk with Professor Co about this bill is because it fits perfectly with the idea of California Exceptionalism that we track. By California Exceptionalism, we mean policies that California is pursuing or has passed that go further than anywhere else in the nation. As Professor Co mentions in our conversation, while some public universities offer medication abortion services, no state in the country has a law requiring public universities to provide this service. Should SB 320 pass, California would be exceptional in that it would be the only state to do so.

SB 320 is the evolution of a student-led initiative that started at the University of California, Berkeley. Students asked the health administration at the University to provide medication abortion services, but the request was denied. From that, SB 320 was created. The bill has been pared back a little bit since it’s original introduction in February of last year.

The original bill put this new requirement on all UC’s, CSU’s, and California community colleges that had health centers. Further, the original bill required those on campus health centers to provide scientifically accurate information on abortion and medication abortion services. As the bill progressed, it was amended to cut out the provision about providing scientifically accurate information. Additionally, community colleges are no longer required to be a part of the program, only schools in the UC or CSU systems.

The other interesting aspect of this bill is that it is completely privately funded. The State of California cannot use General Fund dollars to fund the program and the university campuses are not allowed to use student fees to fund this new program. More interestingly, the bill further says that schools will not be required to provide these services should the private funds dry up.

Lastly, a quick thank you to Professor Daniel Grossman at UCSF in helping us out by sharing the studies mentioned in the podcast with Professor Co.

 By: John Sims

A few days after my post about California’s decades-long leadership on efforts to curb air pollution from vehicles, The Sacramento Bee ran an opinion piece on the topic, written by Robert F. Sawyer and Jananne Sharpless, former chairpersons of the California Air Resources Board.  In “Let California lead on clean cars,” the authors describe and argue against a proposal pending before Congress to create a single national standard for vehicle emissions and fuel economy.  Their conclusion is that California “cannot afford to let Washington undermine California’s authority and our states’ rights to protect our communities’ health and our economy.”

My earlier post also provided a link to the December 11 argument in the Ninth Circuit case in which the federal government seeks mandamus to stop the district court in Oregon from going ahead with a February trial on climate change.  It turned out that the linked video portrayed the last appearance on the bench by Judge Alex Kozinski, who retired December 18 after more than 30 years on the Ninth Circuit, after having been charged with sexual harassment.  On December 21, the court assigned Judge Michelle Friedland of California to replace Judge Kozinski on the mandamus case.  There is no way to know yet whether the new composition of the panel will substantially delay the resolution of the mandamus matter.

By: John Sims

A dramatic confrontation over climate change took place on Monday, December 11, in the San Francisco courthouse of the United States Court of Appeals for the Ninth Circuit.  That’s the federal appellate court that includes California and the other western states.  The plaintiffs, many of whom are children, point out that the federal government is not taking adequate steps to restrict greenhouse gases, and that in fact its coal-friendly and oil-friendly policies will have disastrous consequences for the plaintiffs (and the millions of other children like them) over the course of their lives.

The Los Angeles area, because of its reliance on automobiles and dense freeway traffic, experienced some of the worst smog in the nation after World War II.  Thus, when Congress adopted the Clean Air Act in 1970 to curb pollution, California was highly motivated to support that goal.  The statute includes a provision that allows California to receive federal permission to impose limits on emissions from new motor vehicles that are more restrictive than those adopted by Environmental Protection Agency.  Other states are also allowed to opt into the stricter California standards, and a number have done so.

In recent years, California has been one of leaders in the fight against global warming on many fronts, working with other states and even foreign nations to lower the levels of greenhouse gases.  Mere mention of California’s landmark “A.B. 32” legislation from 10 years ago has been enough to induce trauma in executives in the coal, petroleum, and related industries who want to preserve the dominance of fossil fuels.  Especially as the Trump Administration has rejected the Paris Accord and other clean-energy initiatives, California has fought to keep up the momentum behind its efforts to slow global warming before it is too late.

The case heard before the Ninth Circuit earlier this week originated in the federal district court in Oregon.  That court rejected the government’s effort to have the case dismissed, and scheduled a trial for February 2018.  It is expected that the plaintiffs will present a broad array of expert scientific witnesses.  The government sought permission to take an immediate appeal, but the district court refused.  Determined to prevent the trial at all costs, the government was in San Francisco on Monday seeking a writ of mandamus (that is, an order directing the district court to dismiss the case).

Not that long ago, federal courts prohibited the possession of cameras in courthouses.  There has been huge progress on that front, and now the Ninth Circuit livestreams all of its arguments and then archives the recordings at its website.

If you would like to observe and evaluate this collision between the Trump Administration and those seeking to reduce Global Warning, you can watch the video here.  The fascinating argument took a little less than an hour.

Chief Judge Sidney Thomas of Montana (center seat) presided.  The seat on the left (from the viewer’s perspective) is Judge Alex Kozinski of California, who was Chief Judge of the Court (2007-2014).  On the right is Judge Marsha S. Berzon of California.