The California Chamber of Commerce has identified a sixth job killer bill that opens new avenues for shakedown lawsuits related to environmental laws.
SB 49 (de León; D-Los Angeles) is an overbroad bill that includes a private right of action for environmental laws similar to the Private Attorneys General Act provisions that have led to shakedown lawsuits for alleged labor and employment law violations.
An attempt to deal with California concerns about the uncertainty at the federal level associated with environmental laws identified in the bill, SB 49 is a premature, overbroad, and vague response to things that could happen in the future while in the present creating substantial uncertainty for businesses in advance of any such potential changes and correspondingly greatly increasing the potential for costly litigation.
SB 49 requires the state agencies to adopt the baseline federal standards in the federal Clean Air Act, the federal Safe Drinking Water Act, the federal Water Pollution Control Act, the federal Endangered Species Act, and “other federal laws” defined as unidentified laws “relating to environmental protection, natural resources, or public health.”
If there is interest in preserving various federal environmental laws, the CalChamber believes a targeted approach where state agencies respond to federal action on a case-by-case basis is more appropriate.
Offering one example of the impact of SB 49, a practicing environmental attorney explained: “If passed, Senate Bill 49 would nearly double the number of listed species under [the California Endangered Species Act (CESA)] by adding 74 animals that are currently only protected under the federal Endangered Species Act (federal ESA). Further, Senate Bill 49 would arguably protect federal listed species from habitat modification that rises to the level of ‘take’ under the federal ESA, a protection those species do not currently enjoy under CESA. This could create many headaches for developers, in particular as they deal with a state agency that does not have the resources or experience to process incidental take permit applications for species listed only under the federal ESA.”
Private Rights of Action
The private rights of action contemplated in SB 49, if triggered, would essentially create a Private Attorneys General Act (PAGA) for environmental laws similar to PAGA in the labor and employment context. PAGA in the labor and employment context has resulted in various shakedown lawsuits that only increase costs to businesses without providing any corresponding benefit to employees.
The private rights of action contemplated in SB 49 would similarly merely create an additional avenue of costly litigation against businesses that will limit their ability to grow their business and workforce in California, while also adding cases to the overburdened dockets of the judicial system.
Moreover, federal courts have created specialized procedures to deal with the citizen lawsuits relating to federal environmental laws due to the complexities created by such lawsuits. Without having such institutional procedures in place, lawsuits under the contemplated private rights of action in SB 49 would most likely hold businesses hostage for an even greater period of time while the overburdened California courts attempt to deal with the influx of such cases and the unique complexities associated therewith.
Vague language in SB 49 as to when the private rights of action would be triggered also raises questions that would need to be settled by the courts, which will result in many pending cases sitting on the dockets for years without any certainty for businesses while they struggle with increased litigation costs.