tag:theconversation.com,2011:/global/topics/jerry-brown-24514/articlesJerry Brown – The Conversation2018-05-21T10:46:09Ztag:theconversation.com,2011:article/967572018-05-21T10:46:09Z2018-05-21T10:46:09ZWhy California’s new rooftop mandate isn’t good enough for some solar power enthusiasts<figure><img src="https://images.theconversation.com/files/219506/original/file-20180517-26263-etqx3i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Solar panels being installed in new housing under construction in Sacramento, Calif. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/California-Solar-Panels/7cfad931249a4daaa808f0b103a2ff1a/1/0">AP Photo/Rich Pedroncelli</a></span></figcaption></figure><p>More <a href="http://www.sacbee.com/latest-news/article210793889.html">California rooftops will soon sport solar panels</a>, partly due to a new state mandate requiring them for all new houses and low-rise residential buildings by 2020.</p>
<p>This rule immediately sparked <a href="https://www.bloomberg.com/view/articles/2018-05-14/california-s-mandate-puts-solar-up-for-grabs">lively debates</a>. Even experts who generally advocate for solar energy expressed <a href="https://www.bloomberg.com/news/articles/2018-05-09/think-solar-is-upending-california-s-power-grid-now-just-wait">skepticism</a> that it was actually a good idea. </p>
<p>As an <a href="https://scholar.google.com/citations?user=TxYfplkAAAAJ&hl=en">environmental economist</a> who studies the design of environmental policies, I believe that doing something about climate change is important, but I don’t consider this new solar mandate to be the best way to achieve that goal. I’m also concerned that it could exacerbate problems with California’s housing market.</p>
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<h2>More than two sides</h2>
<p>You might expect the debate over this policy, which became official when the California Energy Commission <a href="http://www.energy.ca.gov/releases/2018_releases/2018-05-09_building_standards_adopted_nr.html">unanimously voted</a> in favor of it on May 8, to pit two well-defined camps against each other.</p>
<p>Environmentalists who prize fighting climate change might love it due to a presumption that increasing the <a href="https://qz.com/1224296/california-is-taking-a-cooling-off-period-after-generating-too-much-energy-from-the-sun/">share of power California derives</a> from <a href="https://theconversation.com/the-state-of-the-us-solar-industry-5-questions-answered-90578">solar panels</a> will <a href="https://www.carbonbrief.org/solar-wind-nuclear-amazingly-low-carbon-footprints">reduce greenhouse gas emissions</a> by cutting demand for natural gas and coal.</p>
<p>On the other hand, those who <a href="https://www.mercurynews.com/2017/07/16/cap-and-trade-opponent-climate-change-gives-democrats-an-excuse-to-raise-taxes/">question whether the costs of addressing climate change are worth it</a> might hate the solar mandate, since they either see no benefits or think the benefits aren’t worth the costs.</p>
<p>But there are more than two sides.</p>
<h2>Environmental economics 101</h2>
<p>Many renewable energy experts, including economists like me, want governments to do something to address climate change but question the mandate.</p>
<p>University of California, Berkeley economist <a href="http://faculty.haas.berkeley.edu/borenste/">Severin Borenstein</a> summed up this take in his <a href="https://twitter.com/BorensteinS/status/994242782100271104">open letter</a> to the California Energy Commission opposing the rule. University of California, Davis economist <a href="http://www.sacbee.com/opinion/op-ed/soapbox/article210886434.html">James Bushnell</a> also <a href="https://energyathaas.wordpress.com/2018/05/14/lessons-in-regulatory-hubris/">opposes the mandate</a> for similar reasons. </p>
<p>Above all, what we economists call “<a href="https://link.springer.com/chapter/10.1007/978-3-642-24514-5_9">command-and-control policies</a>” like this mandate – inflexible requirements that apply to everyone – often don’t make sense. For example, going solar is less economical in some cases. Even in sunny California, builders can construct housing in shady areas, and not all homeowners use enough electricity for the investment to pay off before they move away. </p>
<p>The mandate does have <a href="https://www.cnbc.com/2018/05/09/california-approves-plan-to-mandate-solar-panels-on-new-homes.html">some exemptions</a> tied to shade and available roof space, but there could property owners subjected to the requirement to <a href="https://www.greentechmedia.com/articles/read/solar-mandate-all-new-california-homes#gs.Ob8roHI">own or lease solar panels</a> who might consider it unreasonable.</p>
<p>We tend to think that “<a href="https://www.epa.gov/environmental-economics/economic-incentives">market-based policies</a>” would work better. By relying on incentives instead of requirements, people get to decide for themselves what to do.</p>
<p>Good examples of these policies include a tax on pollution, like <a href="https://www2.gov.bc.ca/gov/content/environment/climate-change/planning-and-action/carbon-tax">British Columbia’s carbon tax</a>, or a cap-and-trade market, like the European Union’s <a href="https://ec.europa.eu/clima/policies/ets_en">Emissions Trading System</a>. Instead of restricting the right to pollute, these approaches make people and businesses pay to pollute, either through taxation or by buying mandatory permits.</p>
<p>The flexibility of market-based policies can make meeting pollution reduction goals cost-effective. When people – or businesses – have to factor the costs of pollution into their decision-making, they have a financial incentive to pollute less and will find ways to do so. By reducing pollution as cheaply as possible, more money is left over to spend on other pressing needs like housing, health care and education.</p>
<p>This advantage is not merely theoretical. By many accounts, market-based policies have successfully worked according to theory, including the U.S. <a href="https://voxeu.org/article/lessons-climate-policy-us-sulphur-dioxide-cap-and-trade-programme">sulfur</a> <a href="https://www.sciencedirect.com/science/article/pii/S0301479705002124">dioxide</a> trading program and the EU’s <a href="https://www.edf.org/blog/2015/06/30/europes-emissions-trading-system-turns-10-success-worthy-reflection">carbon trading</a> program. </p>
<p><a href="http://www.latimes.com/business/hiltzik/la-fi-hiltzik-captrade-20180111-story.html">California itself has a cap-and-trade market</a>. I believe that expanding and improving it would cut carbon emissions more cost-effectively than the solar mandate would. </p>
<p>Many economists also fear that the mandate will worsen <a href="https://www.npr.org/2018/04/16/601970552/californias-housing-crisis-working-but-on-the-brink-of-homelessness">California’s housing unaffordability</a>. This crisis has many causes, such as <a href="https://www.aeaweb.org/articles?id=10.1257/jep.32.1.59">restrictive zoning regulations that curtail construction</a>. But the solar-panel requirement, which could increase the cost of a new home by <a href="https://www.sfchronicle.com/business/article/Solar-panels-on-homes-soon-could-be-required-in-12894398.php">more than $10,000</a>, probably won’t help, even though supporters of the policy argue that the solar panels will <a href="http://www.bbc.com/news/world-us-canada-44059865">pay for themselves</a> in terms of lower monthly electricity costs.</p>
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<h2>The solar mandate’s fans</h2>
<p>The solar mandate’s defenders, including Gov. Jerry Brown and Sierra Club leader <a href="https://www.sltrib.com/news/nation-world/2018/05/10/california-becomes-first-state-to-mandate-solar-on-new-homes/">Rachel Golden</a>, make <a href="https://www.vox.com/energy-and-environment/2018/5/15/17351236/california-rooftop-solar-pv-panels-mandate-energy-experts">several arguments</a> – two of which I find credible.</p>
<p>The first is what I’d call the “<a href="https://www.youtube.com/watch?v=TlIUXvAdpcw">Panglossian</a>” argument, after the character in “Candide,” Voltaire’s 18th-century classic satire. In what Voltaire would call “the best of all possible worlds,” <a href="http://channel.nationalgeographic.com/before-the-flood/articles/whats-a-carbon-tax-and-how-does-it-reduce-emissions/">taxing carbon</a> would make perfect sense.</p>
<p>But this is a world riddled with <a href="https://www.sciencedirect.com/science/article/pii/S0301421514000901">political obstacles</a> that make enacting almost any climate policy next to impossible. If a big American state can enact an imperfect law like this mandate that might do some good, <a href="https://twitter.com/CostaSamaras/status/994596578252984320">then it should go for it</a>.</p>
<p>The other argument I find reasonable is that by drumming up more demand, the solar mandate will expand the solar panel market – thereby driving solar costs down, perhaps more quickly than a carbon tax would. <a href="https://link.springer.com/article/10.1023/A:1015519401088">There’s some</a> <a href="https://scholar.harvard.edu/files/gerarden/files/gerarden_jmp.pdf">evidence</a> supporting the theory that these mandates can spur innovation in renewable electricity technologies.</p>
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<p>If the mandate works out, it might address <a href="https://www.sciencedirect.com/science/article/pii/S0921800905000303">two issues</a> at once: shrinking California’s carbon footprint and bolstering technological progress in the solar industry.</p>
<p>To be sure, the cost of residential solar panels has plummeted in recent years, although generating solar energy through rooftop panels remains <a href="https://theconversation.com/when-will-rooftop-solar-be-cheaper-than-the-grid-heres-a-map-54789">less cost-effective</a> than power from utility-scale solar farms.</p>
<h2>A practical policy</h2>
<p>After mulling all the various arguments made by these different camps, I don’t think that whether California’s rooftop solar mandate is the perfect policy for the climate or the state’s homebuyers is the question.</p>
<p>The answer to that question is a resounding no – but that is beside the point because no policy is perfect. The key question is whether this policy – given its imperfections and given the difficulty in passing more cost-effective policies – is a winner overall. That question is harder to answer.</p>
<p>Ultimately, I believe the mandate will yield some environmental benefits, though they could be more cost-effectively achieved through other means.</p><img src="https://counter.theconversation.com/content/96757/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Garth Heutel receives funding from the Alliance for Market Solutions. </span></em></p>Environmentalists and climate hawks are cheering, but many experts aren’t excited about the state making rooftop solar panels mandatory on most new homes beginning in 2020.Garth Heutel, Associate Professor of Economics, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/943792018-04-06T10:46:21Z2018-04-06T10:46:21ZWhy California gets to write its own auto emissions standards: 5 questions answered<figure><img src="https://images.theconversation.com/files/213470/original/file-20180405-189830-1st08cd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rush hour on the Hollywood Freeway, Los Angeles, September 9, 2016.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Los-Angeles-Mayor/178af7a4248c43d78e61ee64950ea57f/324/0">AP Photo/Richard Vogel</a></span></figcaption></figure><p><em>Editor’s note: On April 2, 2018, the Trump administration froze the fuel efficiency standards for cars and light-duty trucks, following the EPA’s finding earlier this year that tailpipe emissions standards negotiated by the Obama administration for motor vehicles built between 2022 and 2025 <a href="https://www.epa.gov/newsreleases/epa-administrator-pruitt-ghg-emissions-standards-cars-and-light-trucks-should-be">were set “too high.”</a>. The EPA also revoked California’s historic ability to adopt standards that are more ambitious than the federal government’s. UCLA legal scholars Nicholas Bryner and Meredith Hankins explain why California has this authority – and what may happen if the EPA tries to curb it.</em></p>
<h2>1. Where does California get this special authority?</h2>
<p>The Clean Air Act empowers the EPA to regulate air pollution from motor vehicles. To promote uniformity, the law generally bars states from regulating car emissions. </p>
<p>But when the Clean Air Act was passed, California was already developing innovative laws and standards to address its unique air pollution problems. So Congress carved out an exemption. As long as California’s standards protect public health and welfare at least as strictly as federal law, and are necessary “to meet compelling and extraordinary conditions,” the law <a href="https://www.law.cornell.edu/uscode/text/42/7543">requires</a> the EPA to grant California a waiver so it can continue to apply its own regulations. California has received <a href="https://www.epa.gov/state-and-local-transportation/vehicle-emissions-california-waivers-and-authorizations#notices">numerous waivers</a> as it has worked to reduce vehicle emissions by enacting ever more stringent standards since the 1960s.</p>
<p>Other states can’t set their own standards, but they can opt to follow California’s motor vehicle emission regulations. Currently, <a href="https://database.aceee.org/state/tailpipe-emission-standards">12 states and the District of Columbia</a> have adopted California’s standards.</p>
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<a href="https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/213472/original/file-20180405-189813-27gz1i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Gov. Ronald Reagan signs legislation establishing the California Air Resources Board to address the state’s air pollution, August 30, 1967.</span>
<span class="attribution"><a class="source" href="https://ww2.arb.ca.gov/about/history">CA ARB</a></span>
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<h2>2. What are the “compelling and extraordinary conditions” that California’s regulations are designed to address?</h2>
<p>In the 1950s scientists <a href="https://doi.org/10.1080/00966665.1953.10467586">recognized</a> that the unique combination of enclosed topography, a rapidly growing population and a warm climate in the Los Angeles air basin was a recipe for dangerous smog. Dutch chemist <a href="https://www.arb.ca.gov/research/hsawards/a_lesson_from_the_smog_capital_of_world.pdf">Arie Jan Haagen-Smit</a> discovered in 1952 that worsening Los Angeles smog episodes were caused by photochemical reactions between California’s sunshine and nitrogen oxides and unburned hydrocarbons in motor vehicle exhaust. </p>
<p>California’s Motor Vehicle Pollution Control Board issued <a href="https://www.arb.ca.gov/html/brochure/history.htm">regulations</a> mandating use of the nation’s first vehicle emissions control technology in 1961, and developed the nation’s first vehicle emissions standards in 1966. Two years later the EPA adopted standards identical to California’s for model year 1968 cars. UCLA Law scholar Ann Carlson calls this pattern, in which California innovates and federal regulators piggyback on the state’s demonstrated success, “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115556">iterative federalism</a>.” This process has continued for decades. </p>
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<figcaption><span class="caption">California’s severe air pollution problems have made it a pioneer in air quality research.</span></figcaption>
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<h2>3. California has <a href="https://theconversation.com/will-blazing-a-low-carbon-path-pay-off-for-california-72168">set ambitious goals</a> for slowing climate change. Is that part of this dispute with the EPA?</h2>
<p>Yes. Transportation is now the <a href="https://e360.yale.edu/digest/transportation-replaces-power-in-u-s-as-top-source-of-co2-emissions">largest source</a> of greenhouse gas (GHG) emissions in the United States. The tailpipe standards that the Obama EPA put in place were designed to limit GHG emissions from cars by improving average fuel efficiency. </p>
<p>These standards were developed jointly by the EPA, the U.S. Department of Transportation (DOT), and California, which have overlapping legal authority to regulate cars. EPA and California have the responsibility to control motor vehicle emissions of air pollutants, including GHGs. DOT is in charge of <a href="https://www.law.cornell.edu/uscode/text/49/32902">regulating fuel economy</a>.</p>
<p>Congress began regulating fuel economy in response to the oil crisis in the 1970s. DOT sets the Corporate Average Fuel Economy <a href="https://www.nhtsa.gov/laws-regulations/corporate-average-fuel-economy">(CAFE) standard</a> that each auto manufacturer must meet. Under this program, average fuel economy in the United States improved in the late 1970s but <a href="https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P100TGLC.pdf">stagnated</a> from the 1980s to the early 2000s as customers shifted to purchasing larger vehicles, including SUVs, minivans and trucks.</p>
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<p>In 2007 Congress responded with a new law that required DOT to set a standard of at least 35 miles per gallon by 2020, and the “maximum feasible average fuel economy” after that. That same year, the Supreme Court <a href="https://www.law.cornell.edu/supct/html/05-1120.ZS.html">ruled</a> that the Clean Air Act authorized the EPA to regulate GHG emissions from cars.</p>
<p>The Obama administration’s tailpipe standard brought these overlapping mandates together. EPA’s regulation sets how much carbon dioxide can be emitted per mile, which matches with DOT’s increased standard for average fuel economy. It also includes a “midterm review” to assess progress. Administrator Scott Pruitt’s <a href="https://www.epa.gov/sites/production/files/2018-04/documents/mte-final-determination-notice-2018-04-02.pdf">new EPA review</a>, released on April 2, overturned the Obama administration’s midterm review and concluded that the 2022 to 2025 standard was not feasible.</p>
<p>The EPA now <a href="https://www.epa.gov/newsreleases/epa-administrator-pruitt-ghg-emissions-standards-cars-and-light-trucks-should-be">argues</a> that earlier assumptions behind the rule were “optimistic” and can’t be met. However, its review almost entirely ignored the purpose of the standards and the costs of continuing to emit GHGs at high levels. Although the document is 38 pages long, the word “climate” never appears, and “carbon” appears only once.</p>
<p>The EPA’s decision does not yet have any legal impact. It leaves the current standards in place until the EPA and DOT decide on a less-stringent replacement. </p>
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<a href="https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=301&fit=crop&dpr=1 600w, https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=301&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=301&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=378&fit=crop&dpr=1 754w, https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=378&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/213476/original/file-20180405-189821-6qv7x2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=378&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">U.S. carbon dioxide emissions from transportation exceeded those from electric power generation in 2016 for the first time since the 1970s.</span>
<span class="attribution"><a class="source" href="https://www.eia.gov/todayinenergy/detail.php?id=29612">USEIA</a></span>
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<h2>4. Can the Trump administration take away California’s authority to set stricter targets?</h2>
<p>The EPA has never attempted to revoke an existing waiver. In 2007, under George W. Bush, the agency <a href="https://www.nytimes.com/2007/12/19/washington/20epa-web.html">denied</a> California’s request for a waiver to regulate motor vehicle GHG emissions. California sued, but the EPA reversed course under President Obama and granted the state a waiver before the case was resolved. </p>
<p>California’s <a href="https://www.gpo.gov/fdsys/pkg/FR-2013-01-09/pdf/2013-00181.pdf">current waiver</a> was approved in 2013 as a part of a “<a href="https://obamawhitehouse.archives.gov/the-press-office/2012/08/28/obama-administration-finalizes-historic-545-mpg-fuel-efficiency-standard">grand bargain</a>” between California, federal agencies and automakers. It covers the state’s Advanced Clean Cars program and includes standards to reduce conventional air pollutants like carbon monoxide, nitrogen oxides and particulate matter, as well as the GHG standards jointly developed with the EPA and DOT.</p>
<p>The Trump administration is threatening to revoke this waiver when it decouples the national GHG vehicle standards from California’s standards. EPA Administrator Pruitt has <a href="https://www.epa.gov/newsreleases/epa-administrator-pruitt-ghg-emissions-standards-cars-and-light-trucks-should-be">said</a> that the agency is re-examining the waiver, and that “cooperative federalism doesn’t mean that one state can dictate standards for the rest of the country.” In our view, this statement mischaracterizes how the Clean Air Act works. Other states have voluntarily chosen to follow California’s rules because they see benefits in reducing air pollution. </p>
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<h2>5. How would California respond if the EPA revokes its waiver?</h2>
<p><a href="https://twitter.com/JerryBrownGov/status/980894214903836672">Gov. Jerry Brown</a>, <a href="https://oag.ca.gov/news/press-releases/attorney-general-becerra-epa%E2%80%99s-assault-federal-greenhouse-gas-emission-standards">Attorney General Xavier Becerra</a> and <a href="https://ww2.arb.ca.gov/news/carb-chair-issues-response-epa-press-release-weakening-vehicle-standards">California Air Resources Board Chair Mary Nichols</a> have all made clear that the state will push back. It’s almost certain that any attempt to revoke or weaken California’s waiver will immediately be challenged in court – and that this would be a <a href="http://legal-planet.org/2018/03/16/will-pruitt-join-sessions-in-expanding-the-attack-on-california/">major legal battle</a>.</p><img src="https://counter.theconversation.com/content/94379/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Air pollution could be the next battleground between California and the Trump administration, which is reviewing the Golden State’s special legal authority to regulate tailpipe emissions.Nicholas Bryner, Assistant Professor of Law, Louisiana State University Meredith Hankins, Shapiro Fellow in Environmental Law and Policy, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/782452017-08-03T01:04:25Z2017-08-03T01:04:25ZWhy shifting regulatory power to the states won’t improve the environment<figure><img src="https://images.theconversation.com/files/180425/original/file-20170731-22136-1pm2a7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To comply with air pollution laws, midwest energy companies built tall smokestacks to displace pollutants. This one at Indiana's Rockport Generating Station is 1,038 feet high, just 25 feet shorter than the Eiffel Tower.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/sniegowski/35480921010/in/photolist-W4jZFq">Don Sniegowski</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>President Trump and his appointees, particularly Environmental Protection Agency Administrator Scott Pruitt, have made federalism a theme of their efforts to scale back environmental regulation. They argue that the federal government has become too intrusive and that states should be returned to a position of “<a href="https://www.bna.com/scott-pruitt-tip-n73014449932/">regulatory primacy</a>” on environmental matters. </p>
<p>“We have to let the states compete to see who has the best solutions. They know the best how to spend their dollars and how to take care of the people within each state,” Trump said in a <a href="https://www.whitehouse.gov/the-press-office/2017/02/27/remarks-president-trump-meeting-national-governors-association">speech to the National Governors Association</a> last February.</p>
<p>Some liberal-leaning states have responded by <a href="https://www.washingtonpost.com/news/energy-environment/wp/2017/05/12/defying-trump-these-state-leaders-are-trying-to-impose-their-own-carbon-taxes/?utm_term=.28d99579f876">adopting more aggressive regulations</a>. California has positioned itself as a leader in the <a href="https://www.nytimes.com/2017/07/26/climate/california-climate-policy-cap-trade.html">fight to curb climate change</a>. New York is <a href="http://www3.dps.ny.gov/W/PSCWeb.nsf/96f0fec0b45a3c6485257688006a701a/26be8a93967e604785257cc40066b91a/$FILE/ATTK0J3L.pdf/Reforming%20The%20Energy%20Vision%20(REV)%20REPORT%204.25.%2014.pdf">restructuring its electricity market</a> to facilitate clean energy. And Virginia’s Democratic governor, Terry McAuliffe, has ordered state environmental regulators to design a rule to <a href="http://www.reuters.com/article/us-usa-virginia-climatechange-idUSKCN18C26J">cap carbon emissions</a> from power plants.</p>
<p>State experimentation may be the only way to break the gridlock on environmental issues that now overwhelms our national political institutions. However, without a broad mandate from the federal government to address urgent environmental problems, few red and purple states will follow California’s lead. In my view, giving too much power to the states will likely result in many states doing less, not more.</p>
<h2>What’s so great about the states?</h2>
<p>Politicians are happy to praise states’ rights, but they rarely say much about what federalism is supposed to accomplish. Granting more power to the states should not be an end unto itself. Rather, it’s a way to promote goals such as political responsiveness, experimentation and policy diversity. </p>
<p>Many U.S. environmental laws include roles for states and the federal government to work cooperatively to achieve shared objectives. Often, this involves the federal government setting strict goals, with states taking the lead on <a href="http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2960&context=mlr">implementation and enforcement</a>. This careful balance of federal and state power has been implemented by Republican and Democratic administrations alike.</p>
<p>In recent years, scholars have expanded on Justice Brandeis’ famous “<a href="http://conversableeconomist.blogspot.com/2015/08/states-as-laboratories-of-democracy.html">laboratories of democracy</a>” model of federalism with the notion of “<a href="http://scholarship.law.cornell.edu/facpub/120/">democratic experimentation</a>.” Brandeis’ core insight, updated for contemporary society, is that decentralization lets state and local governments experiment with different policies to generate information about what works and what doesn’t. Other states and the national government can use those insights to generate better policy outcomes.</p>
<figure>
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<figcaption><span class="caption">California Gov. Jerry Brown announces that his state will host an international climate change action summit in September 2018 – the first such meeting to be held in the United States.</span></figcaption>
</figure>
<p>But as I have shown in <a href="http://www.yalelawjournal.org/article/the-perils-of-experimentation">recent work</a>, there is no guarantee that state experimentation will produce neutral technical information. It also can generate political information that can be put to good or bad uses.</p>
<p>For example, state experimentation with pollution controls may allow regulators to identify cheap ways to reduce emissions. On the other hand, big polluters may use the opportunity to figure out clever ways to avoid their obligations. </p>
<p>This happened in the 1970s and ‘80’s after the Clean Air Act was enacted. State experimentation allowed polluters to learn that by building very tall smokestacks at electric power plants, they could <a href="http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1275&context=law_urbanlaw">send pollution downwind</a> while keeping local officials happy. Experimentation resulted in information on how to push pollution around instead of cleaning it up, and utilities in midwest states used this knowledge to <a href="http://www.nytimes.com/gwire/2011/06/13/13greenwire-gao-faults-tall-smokestacks-at-coal-plants-55552.html">shift pollutants to states downwind</a> in the Northeast.</p>
<h2>An elusive balance</h2>
<p>It makes rhetorical sense for the Trump administration to wrap its environmental agenda in federalism. Air and water pollution are unpopular, and conservation groups have called out Trump’s policies and budget for <a href="https://www.nrdc.org/trump-watch/trump-touts-rolling-back-environmental-safeguards">undoing “environmental safeguards.”</a> </p>
<p>Reframing deregulation as federalism turns the issue into a debate about how to allocate power between the national government and the states. But striking the right balance between federal and state power requires careful attention to context and the costs and benefits of decentralization. </p>
<p>For example, Pruitt has formally proposed to <a href="https://theconversation.com/does-scott-pruitt-have-a-solid-case-for-repealing-the-clean-water-rule-80240">rescind the Clean Water Rule</a>, an Obama administration regulation that clarifies the jurisdiction of EPA and the Army Corps of Engineers to regulate smaller water bodies and wetlands under the Clean Water Act. One might think that without EPA on the beat, states will take a more central role in water pollution control. But in fact, many states have passed <a href="https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf">laws banning any clean water regulation</a> that is more stringent than federal standards. Shifting responsibility in this area back to states will create a policy vacuum instead of space for experimentation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=339&fit=crop&dpr=1 600w, https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=339&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=339&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=426&fit=crop&dpr=1 754w, https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=426&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/180763/original/file-20170802-6912-161npab.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=426&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Many farmers, ranchers and developers contend that the Clean Water Rule is overly burdensome and infringes on states’ rights.</span>
<span class="attribution"><a class="source" href="https://www.rpc.senate.gov/policy-papers/executive-order-on-wotus-rule">Senate Republican Policy Committee</a></span>
</figcaption>
</figure>
<h2>Less creativity, not more</h2>
<p>There is even more need for a federal role in addressing problems that have global impacts, such as climate change. Once greenhouse gases are emitted, they do not just cause warming in the place where they were released. Instead, they mix in the atmosphere and contribute to climate change around the world. This means that no given jurisdiction pays the full cost of its emissions. Instead, in the language of economics, these impacts are <a href="http://www.investopedia.com/terms/e/externality.asp">externalities</a> that are felt elsewhere. </p>
<p>This is why a global agreement is needed to effectively slow climate change. The United States has already withdrawn from the Paris climate accord. If we pull back on regulating greenhouse gases nationally as well, many states will have little incentive to take action.</p>
<p>Under the Obama administration’s <a href="https://www.brookings.edu/blog/fixgov/2017/03/28/the-clean-power-plan-2014-2017/">Clean Power Plan</a>, which Pruitt is reviewing and <a href="http://publicpower.com/2017/epa-tells-states-need-take-no-action-clean-power-plan/">has told states to ignore</a>, every state was required to figure out how to meet a carbon reduction goal. However, it did not dictate how they should do it. </p>
<p>This approach would have produced valuable political information from red and purple states, which tend to rely more heavily than blue states on fossil fuels. By forcing Republican leaders to craft state climate policies and sell them to their constituents, the Clean Power Plan promoted what I consider truly useful experimentation that could have helped break the national gridlock on climate policy. </p>
<p>Now, without a prod from the federal government, those experiments are unlikely to occur. EPA’s retreat will mean that we have less, not more, insight into smart and politically viable ways of cutting carbon emissions. </p>
<p>Any regulation can be improved on, and the Trump administration could have risen to that challenge. Instead, the leadership at EPA is abdicating the agency’s traditional leadership role. In doing so, it is promoting stagnation and backsliding rather than innovation.</p><img src="https://counter.theconversation.com/content/78245/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael A. Livermore does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump administration officials argue that states can regulate more effectively than the federal government. But without leadership from the top, federalism may allow red states to avoid acting.Michael A. Livermore, Associate Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/578572016-04-18T02:43:30Z2016-04-18T02:43:30ZA decisive New York primary for the Clintons – again<p>The April 19 primary in New York looks like it will play a familiar role in this latest Clinton presidential campaign.</p>
<p>Bernie Sanders is hoping his Brooklyn roots and left-wing stands will propel him to victory there, finally altering the dynamic of the race in his favor. </p>
<p>More likely, however, is that the New York primary will do for Hillary Clinton in 2016 what it did for Bill Clinton in 1992, which is to close the door to a left-wing populist challenger.</p>
<h2>Instead of Sanders, Brown</h2>
<p>The similarities between the 1992 contest and this year’s in New York are striking. </p>
<p>In 1992, <a href="https://en.wikipedia.org/wiki/Democratic_Party_presidential_primaries,_1992">Bill Clinton’s campaign lost momentum </a>after early strong showings in the South, which encouraged then-former California Governor Jerry Brown, Clinton’s one major remaining rival that year, to seek a decisive win in New York.</p>
<p>Brown in 1992 was the anti-establishment champion of the Democratic Party’s left wing.</p>
<p>He attacked the existing system of funding presidential campaigns as corrupt, refused contributions over US$100, and created what was then the brand-new idea of <a href="http://www.csmonitor.com/1992/0313/13031.html">a toll-free donor hotline.</a></p>
<p>Brown criticized Bill Clinton as a “bought and paid for” participant in a corrupt system. He <a href="http://articles.chicagotribune.com/1992-03-16/news/9201240748_1_big-electability-problem-hillary-clinton-bill-clinton">even pilloried</a> the Arkansas governor’s wife, Hillary, claiming in a public debate that</p>
<blockquote>
<p>He is funneling money to his wife’s law firm for state business…It’s the kind of conflict of interest that’s incompatible with the kind of public servant we expect.</p>
</blockquote>
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</figure>
<p><a href="http://www.nytimes.com/1992/03/25/us/1992-campaign-primary-democrats-rebuff-clinton-connecticut-primary-brown-wins.html?pagewanted=all">Brown’s ideas and phrases</a> were strikingly similar to the ones Bernie Sanders has deployed this time against Hillary. “It’s not about me,” Brown said, “it’s about a process that hasn’t been working.” </p>
<p>After Brown <a href="http://www.nytimes.com/1992/03/25/us/1992-campaign-primary-democrats-rebuff-clinton-connecticut-primary-brown-wins.html?pagewanted=all">won an upset victory</a> in the Connecticut presidential primary two weeks before New York’s, the chance of another upset in New York became real.</p>
<h2>The Cuomo endorsement</h2>
<p>For the next 14 days, the Democratic presidential nominating process looked as though it might go off the rails, leaving the party with no candidate sufficiently strong as to seem a legitimate nominee. </p>
<p>The Clinton campaign <a href="http://www.capitalnewyork.com/article/albany/2013/12/8536957/state-clintons-and-cuomos?page=all">responded</a> with two weeks of intense campaigning by the candidate, a barrage of <a href="http://www.c-span.org/video/?c4587947/bill-clinton-ran-ads-april-7-1992-new-york-primary">television ads</a> and <a href="http://www.nytimes.com/1992/04/05/us/the-1992-campaign-new-york-despite-their-differences-cuomo-gives-clinton-praise.html">an 11th-hour de facto endorsement</a> by the governor of New York, Mario Cuomo.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=483&fit=crop&dpr=1 600w, https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=483&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=483&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=607&fit=crop&dpr=1 754w, https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=607&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/118784/original/image-20160414-2637-qakco3.JPEG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=607&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New York’s very popular governor, Mario Cuomo.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Mario_Cuomo_speaking_at_a_rally,_June_20,_1991.JPEG">USAF</a></span>
</figcaption>
</figure>
<p>This last, it appears, was significant. Cuomo was popular with Democrats. He had been the party’s favorite choice for presidential candidate until <a href="http://www.nytimes.com/1991/12/21/us/cuomo-says-he-will-not-run-for-president-in-92.html?pagewanted=all">he took himself out of the running </a>at the very last minute. He had been previously <a href="http://www.cnn.com/2015/01/02/politics/cuomo-clinton-relationship-remembered/">openly critical</a> of Bill Clinton’s record as governor of Arkansas. </p>
<p>“As a package,” Cuomo said four days before the primary, “Bill Clinton would make in my opinion a superb president.” </p>
<p>On April 7, Clinton won what <a href="http://www.nytimes.com/1992/04/08/us/1992-campaign-primaries-clinton-victor-new-york-with-41-democratic-vote-tsongas.html?pagewanted=all">The New York Times described</a> as a “bitterly contested primary” with 41 percent of the vote. </p>
<p>With that triumph, Bill Clinton’s campaign closed the door to the Brown challenge, <a href="http://www.capitalnewyork.com/article/albany/2013/12/8537149/stupid-little-interpersonal-exchanges">essentially ending </a>the 1992 Democratic presidential nomination battle.</p>
<h2>Fast forward to 2016</h2>
<p>The parallels to 2016 are plain to see. </p>
<p>Hillary Clinton’s campaign has lost some momentum since her sweep of the major contests on March 15. As Bernie Sanders has racked up several primary and caucus victories in a row, the importance of the New York primary has grown. </p>
<p>Once again, New York Democrats have the chance to play king- or queenmakers. And Hillary, like Bill, is responding with energetic campaigning, lots of television ads and the support of surrogates, most notably New York City Mayor Bill de Blasio, New York Senator Chuck Schumer and Mario’s son, New York Governor Andrew Cuomo.</p>
<p>Hillary and Bill Clinton have close connections to all of three of these leading New York Democrats. </p>
<p><a href="http://www.nytimes.com/2013/08/26/nyregion/in-2000-a-clinton-war-room-didnt-fit-de-blasios-style.html?_r=0">Bill de Blasio</a> managed Hillary Clinton’s campaign for the Senate in 2000, and she served with <a href="https://www.washingtonpost.com/news/post-politics/wp/2013/11/02/chuck-schumer-endorses-hillary-clinton-for-president-if-you-run-youll-win/">Chuck Schumer</a> after winning her Senate seat that year. <a href="https://newrepublic.com/article/112891/andrew-cuomos-two-dads-mario-cuomo-and-bill-clinton">Andrew Cuomo</a> worked for his father as a kind of personal emissary, and was part of the process of negotiating with the Clinton campaign back in 1992. </p>
<p>If Hillary Clinton succeeds on April 19 in replicating Bill’s victory in New York, the likely consequence is that – to party insiders, at least – the nomination battle will be over. </p>
<p>Sanders, like Jerry Brown in 1992, would likely stay in the race to continue his crusade, but without any further big chances to turn things around.</p>
<p>The parallels between 1992 and 2016 in New York remind us that the Clintons are a team, and an extraordinarily experienced one in terms of electoral politics.</p>
<p>Although that has been a mixed blessing this year given the unhappiness among voters with the status quo, the Clintons’ experience has also been a source of real strength. </p>
<p>The New York primary may well reveal whether, in the end, that asset has mattered most in the Democratic presidential nomination contest.</p><img src="https://counter.theconversation.com/content/57857/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Stebenne does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The story of New York’s 1992 Democratic primary – when another Clinton beat another left wing candidate with the help of another Cuomo.David Stebenne, Professor of History and Law Faculty, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/539342016-02-05T11:08:46Z2016-02-05T11:08:46ZNew initiative from Governor Jerry Brown could reform sentencing in California, cut prison terms<p>On January 27, California Governor Jerry Brown <a href="http://www.latimes.com/politics/la-pol-sac-jerry-brown-sentencing-reform-ballot-20160127-story.html">proposed a voter initiative</a> to reform sentencing in the state. </p>
<p>The [initiative](https://www.gov.ca.gov/docs/The_Public_Safety_and_Rehabilitation_Act_of_2016_(00266261xAEB03.pdf) seeks to reintroduce parole hearings and early releases. If it passes, nonviolent felons will come up for parole once they complete the basic term for their original offense. </p>
<p>Brown’s initiative is advertised as a cost-saving measure. As I argue in my book “<a href="http://www.ucpress.edu/book.php?isbn=9780520277311">Cheap on Crime</a>,” many recent criminal justice reform proposals use the language of cost to attract support. The governor also hopes to control prison overcrowding before federal court mandates force action. But more substantially, the initiative [proposes to](https://www.gov.ca.gov/docs/The_Public_Safety_and_Rehabilitation_Act_of_2016_(00266261xAEB03.pdf) “stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles.” </p>
<p>To understand the proposal, we must go back in time, to California sentencing before the 1970s.</p>
<h2>Out of the past: indeterminate sentencing</h2>
<p>In 1974, Robert Martinson published an article titled <a href="http://www.nationalaffairs.com/doclib/20080527_197403502whatworksquestionsandanswersaboutprisonreformrobertmartinson.pdf">“What Works? Questions and Answers about Prison Reform.”</a> It examined evaluative studies of approximately 600 prison rehabilitation programs nationwide. The article grimly concluded that these programs did not reduce recidivism.</p>
<p>The findings came as a shock to Californians, whose correctional system was based on rehabilitation. For decades, the state’s voters had supported the use of prisons to teach inmates skills and reform them into productive, law-abiding citizens. This idea was reflected in California’s <a href="http://law.stanford.edu/wp-content/uploads/sites/default/files/publication/258948/doc/slspublic/Dansky%20Sentencing.pdf">sentencing regime</a>, known as “indeterminate sentencing.” </p>
<p>At the time, California law did not list specific sentences for offenses. Judges would sentence defendants based on their characteristics and circumstances, and their actual release day would be determined by the parole board. For example, an inmate sentenced to three to 20 years’ imprisonment would first come up for parole after three years. If not released, the prisoner would periodically reappear before the parole board until the members decided she had been rehabilitated. </p>
<h2>The move toward determinate sentencing</h2>
<p>Martinson’s research was published at a complicated time in California. A few years earlier, President Richard Nixon had been elected on a platform of crime control, capitalizing on media-fueled public fear of <a href="https://global.oup.com/academic/product/making-crime-pay-9780195136265?cc=us&lang=en&">rising crime rates</a>. </p>
<p>Highly publicized violent crimes, such as the Manson family’s Tate-LaBianca murders, frightened Californians into considering alternatives. The resulting change in sentencing was the product of a narrow coalition. Conservatives <a href="https://www.ncjrs.gov/App/abstractdb/AbstractDBDetails.aspx?id=46518">feared</a> that early releases coddled serious offenders and put the public at risk; progressives <a href="http://www.amazon.com/Struggle-Justice-Report-Punishment-America/dp/0809013630">claimed</a> that the unfettered discretion of parole boards led to inequalities, disfavoring poor inmates and inmates of color. You may recall the cynical portrayal of parole hearings in the movie “The Shawshank Redemption.”</p>
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<p>Jerry Brown, who was governor of California at the time, enthusiastically supported sentencing reform. California was the first state to implement the new sentencing regime, known as “determinate sentencing,” that created inflexible sentences and required most inmates to serve their full sentences. This regime was then <a href="https://www.ncjrs.gov/pdffiles/strsent.pdf">adopted by other states and by the federal system</a>. </p>
<h2>The power of prosecutors</h2>
<p>Determinate sentencing shifted power away from judges and parole boards toward legislators and prosecutors. In California, felony sentences were set by the legislature. In the following decades, various voter initiatives added “enhancements” – dramatic increases in sentencing due to factors such as use of <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=12001-13000&file=12001-12022.95">guns</a>, a <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=186.20-186.34">gang</a> context or a <a href="http://codes.findlaw.com/ca/penal-code/pen-sect-667.html">prior felony record</a>. Parole boards lost the authority to offer early releases, except to inmates serving life sentences. The emphasis on rehabilitation declined, and gradually funds for rehabilitative programs were cut. </p>
<p>Determinate sentences flowed almost automatically from the charges. Therefore, the prosecutors’ power to choose the charges became the most important factor in sentencing. </p>
<p>Fordham University professor <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2181062">John Pfaff</a> argues that the massive growth in prison population was the result of the way prosecutors exercised their charging discretion. <a href="http://www.slate.com/articles/news_and_politics/crime/2015/02/mass_incarceration_a_provocative_new_theory_for_why_so_many_americans_are.2.html">According to Pfaff’s data</a>, between 1994 and 2008, the probability that a district attorney would file a felony charge increased from one in three to two in three. </p>
<p>Many people <a href="https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf">plead guilty</a> in order to avoid the draconian consequences of more serious charges. This aggressive turn in felony charging goes a long way in explaining why there are more people in prison. Increases in sentence length are a less significant factor.</p>
<h2>Should we return to indeterminate sentencing?</h2>
<p>Is Brown’s revival of parole boards a good thing? That largely depends on whether one trusts judges and parole boards over prosecutors. </p>
<p>Pfaff’s data are hard to argue with. However, the original concerns that drove Californians away from indeterminate sentencing in the first place should still give us pause. </p>
<p>First, the proposition will increase the number of parole candidates. In 2014, <a href="http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Annual/Census/CENSUSd1312.pdf">19.9 percent of California prison inmates were lifers</a>, and not all of them were eligible for parole. This initiative would add to the parole board’s caseload the additional <a href="http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Annual/Census/CENSUSd1312.pdf">29.3 percent</a> serving time for nonviolent crimes. </p>
<p>Can the parole board handle this additional caseload? And if doing so requires hiring more parole personnel, how much money would we save? </p>
<p>It’s important to keep in mind that <a href="http://www.cdcr.ca.gov/BOPH/commissioners.html">all parole commissioners</a> in California, who are appointed by the governor, come from law enforcement backgrounds. </p>
<p>As I have found out during my ongoing study of parole hearings for lifers, commissioners currently receive some training on topics such as mental health and substance abuse. Once they are given the task of deciding more people’s fate, would parole commissioners be educated as to implicit biases? If not, how would they avoid repeating the racially discriminatory outcomes that plagued parole releases in the 1970s? </p>
<p>Another source of concern is that parole hearings have adapted to the punitive mindset of the determinate sentencing era. </p>
<p>Before the California Supreme Court’s decision in the case known as <a href="https://scholar.google.com/scholar_case?q=in+re+lawrence&hl=en&as_sdt=2006&case=2992582258029897773&scilh=0">Lawrence</a>, parole boards regularly considered the severity of the inmate’s offense as an indication of her dangerousness and risk. In Lawrence, the court forbade this practice and required the board to find evidence of dangerousness in the inmate’s present conduct, not just in the original crime. But even after Lawrence, my qualitative study-in-progress of parole hearing transcripts reveal that parole boards tend to assume that inmates who committed serious crimes are more dangerous – even when several decades have passed since the crime was committed. </p>
<p>Finally, the initiative extends indeterminate sentencing to offenders convicted of nonviolent felonies, under the understandable <a href="http://ucicorrections.seweb.uci.edu/files/2014/01/CAs-Public-Safety-Realignment-Correctional-Policy-Based-on-Stakes-Rather-than-Risk.pdf">but misguided</a> assumption that they are less dangerous or less likely to reoffend. This has the potential to entrench our negative social attitudes toward people incarcerated for violent offenses – even if they are elderly, ill or have redeemed themselves over a long period of time. </p>
<p>Moreover, the initiative does not clearly explain what parole proceedings for low-level felons would look like. Would these cases receive the kind of attention awarded to lifers – or would they be abbreviated processes? Given the increased caseload, would the board rely more on the existing <a href="http://ucicorrections.seweb.uci.edu/files/2013/12/Development-of-the-CSRA-Recidivism-Risk-Prediction-in-the-CDCR.pdf">software to predict risk</a>and less on their interviews with particular inmates? What would be the role of victims, who <a href="http://www.cdcr.ca.gov/victim_services/Victim_Rights.html">currently have an extensive right to be heard</a> in lifer hearings? Can California afford to provide inmates with the rehabilitative programs they need to prepare them for a law-abiding life after release? </p>
<h2>Reasons for optimism</h2>
<p>There are plenty of reasons to be optimistic about the governor’s new initiative. In the decades since Martinson published his pessimistic study, <a href="http://www.d.umn.edu/%7Ejmaahs/Correctional%20Assessment/Articles/cullen_bookreview_creativemodel.pdf">we have found new and convincing evidence</a> that, when conducted and evaluated properly, educational and vocational programs in prison can and do decrease reoffending. But we should not accept wholesale the premise that parole boards are categorically better than prosecutors at setting sentence length. </p>
<p>Governor Brown is now seeking enough signatures to place his initiative on the California ballot. Many Californians who are dismayed by the injustice and expense of mass incarceration are likely to support it. If it passes, this initiative would be the first step in undoing determinate sentencing across the country.</p>
<p>In the next few months, I hope that supporters of the initiative will carefully consider how to hold parole hearings, so that we may learn from the past, rather than repeat it.</p><img src="https://counter.theconversation.com/content/53934/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hadar Aviram does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the 1970s, California Governor Jerry Brown helped pioneer mandatory sentencing. Now he’s working to overturn the practice.Hadar Aviram, Professor of Criminal Justice and Corrections, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.