United States: Environmental Action Under Governor Newsom's CalEPA – What's In Store For The State?

The California Environmental Protection Agency (CalEPA) directs some of the most important environmental agencies in the state. Those sub-agencies oversee a broad swath of industries and regulate areas including toxic air pollution, greenhouse gases, brownfield redevelopment, water quality, and food and consumer product labeling laws. It's no small effort: The proposed 2019-2020 budget for CalEPA and its sub-agencies totals $4.2 billion, with over 5,900 staff positions. Under President Trump, the federal EPA's leadership has embraced deregulation, and several reports have claimed that federal enforcement activity is declining. Early actions by California's new Governor, Gavin Newsom, and his recent appointment to lead CalEPA, Jared Blumenfeld, suggest that the California will be taking a different tack.

Prior to his appointment as the CalEPA Secretary, Mr. Blumenfeld served as the federal EPA's Region IX Administrator in the Obama Administration, from 2009 to 2016. Before that, he served as Director of San Francisco's Department of the Environment during Governor Newsom's tenure as mayor. At CalEPA, Secretary Blumenfeld now manages the State's key environmental agencies: the Air Resources Board (air quality regulations), the Department of Toxic Substances Control (hazardous waste regulations and enforcement), the State Water Resources Control Board (water quality regulations and enforcement), and the Office of Environmental Health Hazard Assessment (implementing Proposition 65 and establishing public health goals for drinking water and other media), among others.

Secretary Blumenfeld is responsible for coordinating the activities of these agencies. While CalEPA itself does not bring environmental enforcement actions—typically the sub agencies or the California Department of Justice do—Secretary Blumenfeld's oversight role will allow him to set both regulatory and enforcement priorities. And although Governor Newsom is considered somewhat pro-business (at least by California standards), his initial budget proposal and recent comments suggest support for an active CalEPA agenda.

We expect water quality issues to be an area of early emphasis. In his recent State of the State Address, Governor Newsom discussed the need to address the "literally hundreds of water systems across the state contaminated by lead, arsenic, or uranium." Although the comment was one in a long list of policy goals outlined in the speech, Mr. Blumenfeld's past comments confirm a focus on water quality in line with Governor Newsom's State of the State comments. As a federal EPA Regional Administrator, Mr. Blumenfeld notably criticized California for failing to use federal grants to address safe drinking water issues. Last year, he wrote an opinion piece in the San Francisco Chronicle criticizing the State Water Resources Control Board (SWRCB) and regional water boards for "falling short when it comes to levying fines against polluters." Mr. Blumenfeld recommended that the State set enforcement goals, review permits to ensure enforceability, and take back water quality enforcement authority from SWRCB and regional water boards if enforcement failed to improve.

If Secretary Blumenfeld stays true to these statements, regulated industries, developers, water districts, and municipalities can expect increased water quality permit scrutiny and enforcement.

In addition, Secretary Blumenfeld's agenda will undoubtedly extend beyond water related issues. We expect him to focus on improving performance at the much-criticized California Department of Toxic Substances Control (DTSC). Air pollution will also likely remain a priority. We also expect that the California Air Resources Board will continue to aggressively implement programs and policies aimed at reducing toxic emissions and addressing climate change.

Just two months after Governor Newsom's appointment of Jared Blumenfeld to the lead California's environmental agenda, it is still too soon to predict all the coming changes for regulated entities. But given the early signs, the old truism seems apt: Change is inevitable.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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