My Environmental Law Wish List For A California Legislative Super-Majority

Tuesday could give Democrats enough seats to make a major impact on environmental policies

The presidential election next week is making most of the news these days, but while the rest of the country flirts with electing Donald Trump as the next president, California is going its own progressive way. The Republican Party has been all but completely marginalized in this state, for a variety of demographic reasons and self-inflicted wounds.

The state legislature briefly had a two-thirds supermajority of Democrats in both houses back in 2012. But scandals erased that margin in 2012 pretty quickly, with a few lost incumbents. In the end, not much came of it, policy wise (see Jonathan’s 2012 take on what that session could have produced — but didn’t).

So why does two-thirds matter? The number is significant because with two-thirds votes, the legislature can raise taxes and also put constitutional initiatives on the ballot without having to do an expensive signature-gathering effort. Otherwise, simple majority votes on revenues and constitutional initiatives are not sufficient.

Now Democrats have another chance at the two-thirds prize, if they can topple a few Republican incumbents with the big presidential-year turnout. What to do if they get it? Here’s my wish-list:

  1. Place a constitutional initiative before the voters to lower the voter-approval threshold for local transportation funding measures to 55%, from the current 2/3 requirement. 2/3 is a high bar for locals to attain. It usually results in overly compromised, highway-oriented measures that aren’t the most efficient use of funds but are necessary to achieve consensus support. 55% is much more reasonable and could lead to more funding for transit, walking and biking.
  2. Replace the gas tax with a vehicle miles traveled fee. The gas tax is declining relative to inflation and as vehicles become more fuel efficient. As a result, California’s automobile infrastructure is crumbling and lacking sufficient funds from drivers. A mileage fee would accurately track how much wear drivers actually cause on the roads, plus it would help rein in incentives for sprawl, which autonomous vehicles could exacerbate.
  3. Re-authorize AB 32 (Nunez, 2006) and SB 32 (Pavley, 2016), California’s landmark 2020 and 2030 climate change laws. With a 2/3 supermajority re-approving those otherwise-majority approved measures, the Air Resources Board (the agency responsible for implementing the law) would be free to continue with its full cap-and-trade program (which includes the auctioning of allowances) or even develop a carbon tax to rein in carbon pollution. Right now, the cap-and-trade auction is facing litigation because the legislature only approved the authorizing legislation by a majority vote. And a carbon tax is not legally permissible. 2/3 votes would free the program of these legal challenges, particularly post-2020, and give the board more leeway on other carbon pricing mechanisms.

We’ll see what happens next Tuesday, and even with a super-majority it will be hard to keep the Democratic caucus unified. But if it can work, accomplishing these wish-list items would produce some major environmental wins for the state.


Reader Comments

2 Replies to “My Environmental Law Wish List For A California Legislative Super-Majority”

  1. Dear Ethan,

    Thank you for your thoughtful post. My question is: how would a miles traveled fee work in gathering accurate data? Do you see problems with enforcement arising?



    1. Hi Travis,
      The options I’ve heard about for tracking miles include: odometer readings at the end of payment periods, smart phone records on the drivers via an app and GPS, and a GPS tracker on the vehicle itself. I’m sure all three are subject to manipulation, and that’s why it’s good to have some pilot projects like in Oregon to see how these options can best be enforced. It’s good to have a few options though to allay privacy concerns.


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About Ethan

Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…

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About Ethan

Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…

READ more