Policy perspectives with Jon Costantino: The Intersection of Policy Planning and Future Realties

December 19, 2016 by Harry Horner


Californian environmental policy expert Jon Costantino is a regular and exclusive feature writer for CaliforniaCarbon.info. On the back of a highly successful career in environmental policy and law, he has recently started his own legal consultancy – Tradesman Advisors. CaliforniaCarbon.info wishes the very best in this endeavour, and would be more than happy to make introductions for current subscribers!



The AB 32 Scoping Plan has always held a special place in California climate policy. As the foundational policy roadmap for a significant subnational jurisdiction trying to lead the entire planet in Greenhouse Gas (GHG) reduction, its importance has always been acknowledged. That being said, it really is only a “planning document” and as such does not have the same administrative requirements, or force of law, that accompany the adoption of “real regulation”, say the Cap and Trade, Low Carbon Fuel Standard or Oil/Gas Methane Rules. So, what exactly is it?

Is it bird?

Is it a plane?

Or is it really a super document upon which future legislation, regulation and litigation is constructed?

Based on the tone, discussion and overall tension in the room last Friday when the California Air Resources Board held a workshop on the latest Discussion Draft of the 2030 Target Scoping Plan, it is definitely the latter… And everybody in the room knew it.

ARB has had scores of workshops since the original AB 32 was signed by Governor Schwarzenegger over a decade ago, but none like this. This one was different. This one rightly had the sense that it was not only a big deal, but THE big deal. That decisions were going to be made relatively quickly which were going to impact the constituents of those in the room for the next three and a half decades. Livelihoods were on the line. As defined, livelihood literally means “securing the necessities of life”. This definition is appropriate as all parties in the room were advocating for their stakeholders—business owners, the environmental, environmental justice communities, future labor force, and citizens of the world.

The 2030 Target Scoping Plan Discussion Draft was released on December 2nd.  It largely put words around the three possible planning scenarios released by the ARB earlier in the Fall, which largely were required to be analyzed by previous legislation and litigation. It contained little in the way of unknown policy recommendations, unlike the original Draft 2008 Scoping Plan, which was shrouded in secrecy until its release (and was immediately downloaded 500,000+ times upon being posted). This Discussion Draft has a more mature feel to it. There were not a lot of surprises in the document to comment upon (comments were due concurrently with the workshop). But with an aggressive schedule moving forward—January release of a staff recommendation in a “Proposed Scoping Plan” and an expected policy choice by the ARB Board—the time to react was now.  The next ARB Board meeting is shaping up to be a lively do-not-miss scheduled for January 26th or 27th. After that meeting, it is expected that ARB staff will have their marching orders on which of the three primary scenarios will be the main roadmap to a 2030 clean economy.

As of Friday’s workshop, there were three staff-included scenarios—one that keeps the basic framework and direction for the last decade, and two that take a hard right (or left) on California climate policy:

  1. The “status quo” option where Cap and Trade is retained and additional or more stringent existing GHG policies are added to the mix;
  2. The “No Cap and Trade” option where California would regulate itself to lower GHG levels; and
  3. The non-Cap and Trade price on carbon option which would recommend an economy wide carbon tax.

To quote Yogi Berra, “it’s like déjà vu all over again”. Way back in 2008, the three choices facing California were A) Cap and Trade with complementary measures, B) Command and Control, or C) Carbon Tax. Why does this look familiar?

Cap and Trade with complementary measures was the preferred policy choice of the 2008 Board for a number of well-documented reasons, with the two primary ones being it provided both environmental certainty and the ability to achieve reductions in GHG, criteria and toxic pollutants. It was the “win-win” option that met the myriad of requirements outlined in AB 32. The current staff analysis also seems to imply that the right approach is to continue forward and not make dramatic shifts in policy.  The only “drawback” given of the existing program was “Different legal interpretations about authority”. Whereas, with the No Cap-and-Trade -Alternative 1, the drawbacks outnumbered the benefits. And with the Carbon Tax option the two drawbacks presented seem like showstoppers—no guarantee of reaching the statutory goals and no readily available back-up plan should it fall short.

So, what has changed in the last eight years that has ARB revisiting an existing program that they have touted as achieving its goals?  Quite a bit actually. Let’s list a few of the biggies:

  • The California Legislature has had a 100% turnover since the AB 32 votes;
  • The ARB Board memberships has changed in both quantity and exclusivity of the appointing authorities;
  • The Environmental Justice Community has gained an organized voice;
  • The opportunities for California to connect to other GHG programs has both increased (the world has moved to react to climate change) and decreased (the WCI concept of unifying the Western States has disappeared).
  • Stakeholders on all sides know what these policies mean in the real world; and
  • SB 32 and AB 197 passed;

The Brown Administration and the Legislature have both made it clear that protecting AB 32/SB 32, and its revenue stream, from the litigation disruptions and future uncertainties that have shadowed the current program is a priority.  You can expect whatever the staff recommends and the ARB Board approves will be second-guessed or reaffirmed in the Legislature this session. Thus removing the differing interpretations of legislative intent once and for all.

When significant and far-reaching planning options meet educated and engaged stakeholders in a public forum, the conversations and questions are more direct and intense. And you get a workshop like Friday. It was not a typical one-sided agency presentation followed by polite stakeholder clarification questions. On display for the world to see was the debate over the livelihoods of those involved. This was truly an example of public policy being debated in the light of day. Up next: the spotlight shifts to the Board for another historic vote, and all eyes will be watching.


Jon Costantino oversaw the development and publication of the original AB 32 Scoping Plan when he served as Climate Change Planning Manager at the ARB. Starting January 1, 2017, he will be owner and principal at Tradesman Advisors in Sacramento. Tradesman Advisors will provide West Coast regulatory consulting and advocacy for clients in the areas of climate change, clean energy and other environmental issues. Mr. Costantino can be reached at (916) 716-3455, or jon@tradesmanadvisors.com .

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