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Government:
Personal Enforcement Bill AB 528 (Frommer)

Our Position: support
Bill Number: AB_528
Sponsor: California League of Conservation Voters, California League for Environmental Enforcement Now, Natural Resources Defense Council, Planning and Conservation League, Sierra Club California

Status

Action Needed

No action requested at this time.

More information

To view the bill's history, status, and votes see

http://leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_528&sess=CUR&house=B&author=frommer

Contact

Bill Magavern

Senior Legislative Representative

Sierra Club California

916-557-1100

Background

AB 528 (Frommer)

Public Health and Environmental Enforcement Law of 2005

What the bill does

• Allows personal enforcement of violations of public health and environmental laws when the government fails to act. 16 states and federal government already have such laws.

• Allows personal enforcement of violations in order to prevent injury. A person does not need to wait until physical injury has occurred before being able to act.

• Requires a 60-day notice to the Attorney General and the enforcing agency

before filing a lawsuit.

• No personal enforcement is authorized if the government acts to enforce the

law.

• Personal enforcement is only allowed if a person has a “beneficial interest in

the outcome”: the same standing requirement used for lawsuits to require

government agencies to obey environmental laws.

• The Attorney General has the right to intervene in any personal enforcement action.

• No case can be settled without 45-day notice to the Attorney General and approval of the court.

• No money damages may be recovered. Injunctive relief to restore theenvironment and to comply with law is authorized. Declaratory relief is allowed. Civil penalties must be paid to a public agency.

• Attorney’s fees may only be awarded if reviewed and approved by a court.

• Ensures civil penalties awarded from polluters shall be deposited in a special fund for public health and environmental enforcement, to help public enforcement budgets.

 

What the bill does NOT do

• Does not allow personal enforcement actions to interfere with or preempt

enforcement by public agencies.

• Does not authorize individuals to challenge government decisions either to

enact rules or to issue permits. Personal enforcement is only authorized to

enforce the law.

• Does not allow lawyers to get rich on money damages or restitution awards.

• Does not amend, affect, deal with, or even mention the unfair competition

law, the Business and Professions Code or Proposition 64.

 

AB 528 CASE STUDIES

1. Contaminated Drinking Water. Most groundwater in California is
designated as a drinking water source or as a potential drinking water
source. 50% of Californians rely on groundwater for drinking water.
Federal Clean Water Act standards do not apply to groundwater.
California has set tougher standards than the federal Safe Drinking Water
Act. Contamination of groundwater by, for example, MTBE, molinate, and
perchlorate (final level pending) is only regulated by California. AB 528
would give a person drinking contaminated groundwater a right to
enforce California clean water standards if a water agency did not.

2. Bush Administration Rollbacks on Air Quality. The California
Legislature passed the Protect California Clean Air Act of 2003 to prohibit
air districts from weakening air quality laws as demanded by the Bush
Administration. These state requirements cannot be enforced under the
federal clean air act. AB 528 would allow a person breathing air pollution
to force an industry violating these requirements to comply with California
law if the air district failed to do so.

3. Clean Bottled Drinking Water. Bottled and vended water is regulated
in California by the Food and Drug Branch of the Department of Health
Services. California has much tougher standards than federal standards,
which are set by the FDA. State standards for trihalomethanes, lead,
arsenic and chlorine are stricter than even EPA’s drinking water standards.
If a bottler violates the California drinking water standards for bottled
water, and the state’s regulators fail to act, AB 528 would give a person
who drinks bottled water the right to enforce those standards.

4. Waste Water from Cruise Ships. California law prohibits cruise ships
from discharging wastewater that violates standards into the ocean off
California’s beaches. The State Lands Commission is responsible for
enforcing this prohibition. AB 528 would give a fisherman in those
waters, the right to get an injunction to prevent cruise ship wastewater
from polluting the oceans, if the state’s regulators fail to act.

5. Protecting the Endangered Desert Tortoise. The Desert Tortoise is
listed as an endangered species under both federal and state law.
However, in some ways the state law provides more protection. AB 528
would give a person who used the desert, the right to enforce state law to
protect the Desert Tortoise and its habitat if the Department of Fish and
Game did not enforce the law.

Opponents’ arguments against AB 528
Public Health and Environmental Enforcement Law of 2005

“AB 528 is an end run on Prop 64, trying to amend the initiative.”	FALSE. Does NOT amend, affect, deal with, or even mention the unfair competition law, the Business and Professions Code or Proposition 64. Ballot materials made it clear that Prop 64 only affected the unfair competition law. The proponents repeatedly stated that they did not intend to affect other laws protecting of the environment.
”AB 528 will trigger shakedown lawsuits, like the unfair competition law.”	FALSE. This bill does not allow money damages or restitution. Any award of attorneys fees must be reviewed and approved by a court.
”AB 528 is not needed, plenty of environmental laws already exist.”	FALSE. California doesn’t allow personal enforcement against private polluters for the vast majority of environmental and public health laws. 16 other states and the federal government already have provisions that are more expansive than AB 528.
“AB 528 will let anybody sue the government whenever they don’t like or disagree with a decision of a regulator.”	FALSE. AB 528 is carefully structured so that personal enforcement is a last resort, available only after the public agencies have completely failed to do their job - failing to diligently prosecute.

To continue with a more detailed description of  AB 528 click here

View letter of support for AB 528