Strong headline, I know, but I didn’t believe this was true until I researched it myself. First some background; I once served as an elected official on my local school board. During orientation and virtually every annual CSBA meeting after that, along with numerous public meetings and letters to the editor where people constantly reminded us of the Brown Act, it loomed large as the most important law that we had to follow.
We were constantly reminded that if we did not follow the letter of the law and provide full and open access to all meetings (the exception being employee management) we would be guilty of breaking the open meeting law and subject to severe penalties. If our local school board in our small town ever tried to hold a closed-door meeting without the knowledge of the public, not only we would we be excoriated in the press and public discourse, but we would also have people filing for our election recall.
So, it was with shock and surprise that I learned today that the California Air Resources Board declared the method by which they could circumvent the public meeting laws. Even more shocking they put it in writing and, got the California State legislature to pass it as a law as a rider on a totally unrelated bill of legislation, and Governor Brown signed it into law on June 27th, 2012.
My friend Eric Eisenhammer first alerted me to the issue on his California Political Review blog. He writes:
On the afternoon the state budget was signed into law last Wednesday I received an email from a local activist informing me that hidden in a trailer bill titled SB 1018 was a provision exempting the upcoming cap and trade auction from open meeting rules.
CARB formed a company called Western Climate Initiative Inc. (WCI), to manage its upcoming cap and trade auction. This shadowy corporation, registered in Delaware, will be responsible for imposing billions in hidden energy taxes on California ratepayers and small businesses without public scrutiny or accountability.
SB 1018 was a “gut and amend” bill, with over 100 pages inserted the day before the bill was signed into law along with the state budget. This legislation did not go through one committee hearing and most legislators probably never had a chance to read it. But buried in this bill in Section 12894(b)(2) is a line exempting WCI from a critical provision of the California Constitution, known as the Bagley-Keene Act, which provides meetings be open to public scrutiny.
Small business owners and citizen energy consumers care about protecting the environment, but CARB continually behaves as if it has something to hide.
When I first read that I really could not believe it. I could not believe that a state agency who is beholden to the same sorts of open meetings law that I was as a school board member would go to the lengths of trying to circumvent it, much less get it passed into law as an exception. So, I decided to check it out for myself.
First I located the document related to SB 1018. Eric was kind enough to direct me to the actual document and to the section that was relevant. Here is the URL of just one section of the monster sized SB1018 bill, section 39. The PDF: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1001-1050/sb_1018_bill_20120627_chaptered.pdf
The relevant part is in 12894(b)(2) of SB 1018. You can find that section from the bottom of page 23 to near the top of page 24. The relevant section says:
Chapter 5. Greenhouse Gas Market-Based Compliance
Mechanisms and Linkages to the State
12894. (a) (1) The Legislature finds and declares that the establishment of nongovernmental entities, such as the Western Climate Initiative, Incorporated, and linkages with other states and countries by the State Air Resources Board or other state agencies for the purposes of implementing Division 25.5 (commencing with Section 38500) of the Health and Safety
Code, should be done transparently and should be independently reviewed by the Attorney General for consistency with all applicable laws.
(2) The purpose of this section is to establish new oversight and
transparency over any such linkages and related activities undertaken in relation to Division 25.5 (commencing with Section 38500) of the Health and Safety Code by the executive agencies in order to ensure consistency with applicable laws.
(b) (1) The California membership of the board of directors of the Western Climate Initiative, Incorporated, shall be modified as follows:
(A) One appointee or his or her designee who shall serve as an ex officio nonvoting member shall be appointed by the Senate Committee on Rules.
(B) One appointee or his or her designee who shall serve as an ex officio nonvoting member shall be appointed by the Speaker of the Assembly.
(C) The Chairperson of the State Air Resources Board or her or his designee.
(D) The Secretary for Environmental Protection or his or her designee.
(2) Sections 11120 through 11132 do not apply to the Western Climate Initiative, Incorporated, or to appointees specified in subparagraphs (C) and (D) of paragraph (1) when performing their duties under this section.
(c) The State Air Resources Board shall provide notice to the Joint Legislative Budget Committee, consistent with that required for Department of Finance augmentation or reduction authorizations pursuant to subdivision (e) of Section 28.00 of the annual Budget Act, of any funds over one hundred
fifty thousand dollars ($150,000) provided to the Western Climate Initiative, Incorporated, or its derivatives or subcontractors no later than 30 days prior to transfer or expenditure of these funds.
Did you catch it? Most people wouldn’t as it is a very short sentence written in gov-speak with redirected references to other laws. I only caught it because I was familiar with the sections pertaining to the state open meeting laws.
Here’s the relevant section:
(2) Sections 11120 through 11132 do not apply to the Western Climate Initiative, Incorporated, or to appointees specified in subparagraphs (C) and (D) of paragraph (1) when performing their duties under this section.
Still don’t see it? It is about sections 11120 through 11132 of The California Code.
What are Sections 11120 through 11132? Wikipedia has a good summary:
The Bagley-Keene Act of 1967, officially known as the Bagley-Keene Open Meeting Act, implements a provision of the California Constitution which declares that “the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny”, and explicitly mandates open meetings for California State agencies, boards, and commissions. The act facilitates accountability and transparency of government activities and protects the rights of citizens to participate in State government deliberations. Similarly, California’s Brown Act of 1953 protects citizen rights with regard to open meetings at the county and local government level.
The act also reaffirms, “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
Here’s the relevant section of the code, section 11121, which says private corporations setup to do state business are not exempt:
As used in this article, “state body” means each of the following: (a) Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order. (b) A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body. (c) An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons. (d) A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
Section 11122.5 reads:
(a) As used in this article, “meeting” includes any congregation of a majority of the members of a state body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the state body to which it pertains. (b) (1) A majority of the members of a state body shall not, outside of a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter of the state body. (2) Paragraph (1) shall not be construed to prevent an employee or official of a state agency from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the state agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.
There are some exceptions listed in 11122.5, such as for conversations in open air public meetings and gatherings, but nothing like the blanket exception written in for WCI in SB1018.
Consider this a minute. CARB sets up a private corporation, Western Climate Initiative Inc. to manage the cap and trade program, doesn’t even bother to put the corporation in California, and opts for Delaware and the advantages that brings over California incorporation. Delaware is well known as a corporate haven, and that alone suggests they want it out of the prying eyes of California taxpayers.
But that wasn’t good enough, they take the extraordinary step of writing in an exemption to prevent public scrutiny, and then hide it as a rider in the 100+ pages inserted the day before the bill was signed into law along with the state budget, effectively preventing any scrutiny.
What is CARB intent on hiding in WCI? Now, with a secret meetings get out of jail free card signed by Govenor Moonbeam, We may never know. Just like with the publicly funded Michael Mann fighting tooth and nail to prevent his emails from seeing sunshine, so it seems CARB has taken a cue from the behavior of climate science in general, and in a wave of the hand brushed aside the directive Bagley-Keene Open Meeting Act, deciding they know what is best for the people:
The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.
In my opinion, this flagrant and orchestrated criminal disregard of the California open meetings law is the epitome of unmitigated gall on the part of CARB, and specifically CARB director Mary Nichols who has made it clear she doesn’t give a rats ass about what the people of California have to say about her empire and how it operates.
At this point, when they decide they can hold themselves above the law that every other town board, council, and agency has to follow, I’m ready to declare CARB as an enemy of the people of California.
If you are a resident of California, complain loudly to your elected representatives and write your newspapers. The only way to fight this is with more sunshine.
I first came to CA in 1989 and lived in Southern California for about 4 years, then I left and came back in 1996 to Northern California. I’m just about ready to move back to the USA now.
As Roger Sowell notes above:
It is illegal because it does not conform with the California Constitution, Article I Section 3,
Furthermore, All authority under the Constitution derives from We The People:
– as granted by the Great Governor of the world.
We the People reserved all rights to require transparency and accountability under the Tenth Amendment to the US Constitution
This includes the right to nullify unjust law.
Greenpeace’s justifications are flimsy compared the State and Federal Constitutional rights preserved to the Citizens.
Thus California Citizens have the right and duty to require access to all meetings of the Western Climate Initiative and to publicize all its proceedings.
Any chance of the Judicial branch declaring this unconstitutional?
Step 1. Get rid of ICLEI and Agenda 21 in the USA
Step 2. Vote out Obama and his Czars
Step 3. Probably vote out Romney and his Czars
Bill Tuttle says:
July 15, 2012 at 7:52 am
tonyb says:
July 15, 2012 at 12:42 am
Do the US media or Congress not have the same power to expose this breathtaking piece of effrontery and the two fingers the organisation concerned has raised to the notion of democracy?
The US media is, with some few exceptions, head-over-heels in love with anything described as “green” or any politician described as “liberal.”
Congresscritters have no say in what laws individual states may or may not pass, and Congress itself has passed laws which violate the US Constitution.
Bill it is worse than we thought.
Let’s see. Who is guarding the hen house? We have a system of checks and balances in our government right? Who is getting the checks? Who is determining the balances for what the government spends? The checks and balance system is broken. The federal administration can make rulings that walk like a laws and talk like a laws but they quack like huge regulations, without even a whimper from the legislative branch. The courts who job it is assure constitutionality appear to look for ways to get around the constitution. Thank you, Justice John Roberts. The legislators look for ways to pass laws they want by hiding them with other laws and without reading them. The administrative branches seek to impose regulations with public review and comment providing it meets their political objectives. The mainstream press largely approves of getting around the checks and balances because their objective is to transform our economic system into a progressive system and to destroy the free enterprise system that they are not able to control. Then we have legislative branches that pass laws for special interest groups to secure their vote for re-election and to mitigate any objections to giving up freedoms. It is not surprising that in California, the bell weather State, the bureaucratic regulatory groups such as CARB have tolled their bells for the death of public knowledge of what is being planned to regulate them.
Each of the four estates has maximized their ability to game the system to maximize their power at the expense of our freedoms. Of course we have a ballot box as a control, or do we? If the current presidential election is any measure, the ballot is controlled by an advertising budget in the billions which bombards us continuously with mindless political slogans and video sound bites but delivers no analyses of any substance or free from tons of mud being slung at the opponent. So the voting public is kept in the dark and has to use their own means to discover the truth about a candidate, if they can? Questions are raised but never seem to get resolved. Mean while the candidates character has been thoroughly destroyed by the opposition. Is it surprising that a small percentage of voters turn out for elections?
PaulH says:
July 15, 2012 at 8:21 am
Sadly, this kind of legalese stunt is becoming a favourite trick of our political masters. For example, here in Ontario, Canada the provincial Green Energy Act specifically exempts electricity generating wind turbine industrial facilities (aka “wind farms”) from any kind of environmental impact studies (which often delay standard development/construction projects for years), and removes the ability of local municipalities to object. The province have given itself the ability to force wind farms where they want, and if you don’t like it you can pound sand.
On the other hand, the Species At Risk act can effectively block (non-wind farm) development indefinitely if a turtle or bird’s nest (with or without eggs) is found on the property under development.
The lunatics have taken over the asylum.
According to Dalton McGuinty rural voters, who generally vote Conservative and oppose windfarms, are NIMBY’s.
http://www.thestar.com/news/ontario/article/585591–mcguinty-vows-to-stop-wind-farm-nimbys
Urban Liberal voters are to be catered to. So the gas plant is to be built in a Conservative riding hundreds of kilometers from where the power is needed.
http://fullcomment.nationalpost.com/2012/07/12/matt-gurney-ontario-liberals-find-way-to-look-even-worse-on-nixed-power-plant/
“Mary Nichols – leader of a a criminal agency?”
Cap and Trade is a criminal creation, ignited by Enron through Gore et al. imposing it on Kyoto. In Australia, they are ashamed enough of it so they have to hide it as a three year “carbon tax.” The Wall Streeters are currently buying out various “conservative” and “liberal” pundit whores and NGOs to create a fake “discussion” moving towards Tax to Cap and Trade scheme for the USA as a whole. I’m sure Romney and Obama are both on board. In California one apparently does not need such tricks. One can impose the Cap and Trade scam with the lefties barking big approval. The righties shut up when they realize their favorite fantasy corporations are profiting, so they think that is good, or it just confuses their small Ayn Randian minds too much. So they go back to thinking about magical tax cuts or something.
Like with the previous Enron-California scam that cost billions, cap and trade will have to cost even more before the California democratic party gets too embarrassed about its connivance and has to do something to cut off the money flows to its benefactors.
A few days ago, the company I work for announced that it is leaving California. The CEO named Cap and Trade as one of the reasons. Guess I’ll have to get a new screen name.
Yesterday, July the 14th, we had a wonderful family reunion. We toasted to 14 Juillet 1789. Charles De Montesquieu also came up in conversations.
Unfortunately, California has been a “model state” for corruptocrats around the nation for decades.
And they made sure they’d keep getting elected by making the climate so business-hostile that large numbers of productive people left the state.
I guess they figured on a Federal Bailout, because the money went with the productive people.
1. Drive out the productive people.
2. The dependent remainder will vote for you in droves because of your promises.
3. Figure out where to get the money.
Step the is where the plan usually falls down.
CARB established the Western Climate Initiative, Inc. as a non-profit 501C3 incorporated in Delaware, to act for California, British Columbia, Ontario and Quebec. http://www.wci-inc.org/
Some WCI documents are meeting minutes are public.
It offers whistleblower protection. and an audit committee.
Be warned:
Western Climate Initiative, Inc. http://www.wci-inc.org/
is a separate organization from
Western Climate Initiative http://www.westernclimateinitiative.org/
and has different members.
You know,every time I hear of this either here in Canada,the US,OZ,or any other so called free country,I am reminded of that old saying…..we HAVE to pay our leaders and elected officials so much money and perks to attract the best for the job. To which I reply BS. If they were so darned good,the private sector would have snapped them up long ago.Although this may not hold true in Californicated,as the DemonRats have chased virtually all private business out.
Merovign says:
July 15, 2012 at 1:19 pm
“1. Drive out the productive people.
2. The dependent remainder will vote for you in droves because of your promises.
3. Figure out where to get the money.”
“The trouble with socialism is that eventually you run out of other people’s money.”
The biggest “pollutant” in So. Cal is the billions of pounds of rubber dust from tires and belts of vehicles.
A passenge car tire will shed about a pound of rubber from the tread before wearing out. Don’t know about 18 wheelers, but rubber dust from them is probably enormous since these trucks are on the road 24/7/365 and there are zillions of them.
Zinc used for galvanizing steel contains small amounts of cadmium. The zinc in various catalysts used as as accelarators for synthetic rubber production also contains cadmium.
Heaven forbid that Mary N. learns about this.
Black carbon dust from rubber and asphalt is probably the main reason the eastern US is heating up in recent times. Synthetic rubber and asphalt dust do not degrade when exposed to sunlight, oxygen or microbes. Once in the enviroment these are there forever.
Much of this dust eventually ends up in the Arctic as a component of cryoconite, the brownish-black mineral dust that forms the varves in Arctic ice. This mineral dust speeds up melting of Arctic ice.
In regards Anthony, “…an electric official of the school board” is far more accurate.
REPLY: Yeah I was a real lightning rod on that board – Anthony
doing my part to spread word of this travesty too.
http://www.theconservativevoices.com/forums/topic/48411-california-air-resources-board-cap-and-trade-program-circumvents-state-open-meeting-law/
David L. Hagen says:
July 15, 2012 at 2:10 pm
Whoa, that sailed right by me.
RGGI has something similar, and uses an unconnected company, http://www.worldenergy.com/ to run their auctions and perhaps the allowance market. RGGI is just one of many clients. They’re based in Worcester MA and their westernmost offices are in Texas, so perhaps they aren’t set up to handle the WCI auction and market.
So, things may not be quite as nefarious as they first appear, but boy, is this going to cause a lot of confusion!
It looks like WCI, Inc is going to be much more strongly coupled the WCI than World Energy is to RGGI, Inc, (which is not a state agency, but does have board members from state governments). The home page says:
How the heck is THIS legal????
“a rider in the 100+ pages inserted the day before the bill was signed into law “
“How the heck is THIS legal???? “a rider in the 100+ pages inserted the day before the bill was signed into law “
It is legal with the same precision as “ObamaCare:” not read in its entirety by anyone “voting FOR;” not even seen until the day before the vote, and signed into law by someone knowing it was never read. And thus just upheld by a Supreme Court in an attempt to prove itself unworthy of the name.
The West Coast states are the most adamant about creating state level, draconian, energy pinching GHG regs. Ironically, in this negative PDO mode these same states are the ones incuring the worst effects due to the cold.
They need money from somewhere for the Bullet Train to nowhere (with nobody on it).
Notice how quickly the spending vultures gather to feed on the Cap & Trade billions?