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Chapter 5. Greenhouse Gas Market-based Compliance Mechanisms And Linkages To The State of California Government Code >> Division 3. >> Title 2. >> Part 2.5. >> Chapter 5.
(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.
(d) The Chairperson of the State Air Resources Board and the Secretary for Environmental Protection, as the California voting representatives on the Western Climate Initiative, Incorporated, shall report every six months to the Joint Legislative Budget Committee on any actions proposed by the Western Climate Initiative, Incorporated, that affect California state government or entities located within the state.
(e) For purposes of this section, "link," "linkage," or "linking" means an action taken by the State Air Resources Board or any other state agency that will result in acceptance by the State of California of compliance instruments issued by any other governmental agency, including any state, province, or country, for purposes of demonstrating compliance with the market-based compliance mechanism established pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code and specified in Sections 95801 to 96022, inclusive, of Title 17 of the California Code of Regulations.
(f) A state agency, including, but not limited to, the State Air Resources Board, shall not link a market-based compliance mechanism established pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code and specified in Sections 95801 to 96022, inclusive, of Title 17 of the California Code of Regulations with any other state, province, or country unless the state agency notifies the Governor that the agency intends to take such action and the Governor, acting in his or her independent capacity, makes all of the following findings:
(1) The jurisdiction with which the state agency proposes to link has adopted program requirements for greenhouse gas reductions, including, but not limited to, requirements for offsets, that are equivalent to or stricter than those required by Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(2) Under the proposed linkage, the State of California is able to enforce Division 25.5 (commencing with Section 38500) of the Health and Safety Code and related statutes, against any entity subject to regulation under those statutes, and against any entity located within the linking jurisdiction to the maximum extent permitted under the United States and California Constitutions.
(3) The proposed linkage provides for enforcement of applicable laws by the state agency or by the linking jurisdiction of program requirements that are equivalent to or stricter than those required by Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(4) The proposed linkage and any related participation of the State of California in Western Climate Initiative, Incorporated, shall not impose any significant liability on the state or any state agency for any failure associated with the linkage.
(g) The Governor shall issue findings pursuant to subdivision (f) within 45 days of receiving a notice from a state agency, and shall provide those findings to the Legislature. The findings shall consider the advice of the Attorney General. The findings to be submitted to the Legislature shall not be unreasonably withheld. The findings shall not be subject to judicial review.
(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.
(d) The Chairperson of the State Air Resources Board and the Secretary for Environmental Protection, as the California voting representatives on the Western Climate Initiative, Incorporated, shall report every six months to the Joint Legislative Budget Committee on any actions proposed by the Western Climate Initiative, Incorporated, that affect California state government or entities located within the state.
(e) For purposes of this section, "link," "linkage," or "linking" means an action taken by the State Air Resources Board or any other state agency that will result in acceptance by the State of California of compliance instruments issued by any other governmental agency, including any state, province, or country, for purposes of demonstrating compliance with the market-based compliance mechanism established pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code and specified in Sections 95801 to 96022, inclusive, of Title 17 of the California Code of Regulations.
(f) A state agency, including, but not limited to, the State Air Resources Board, shall not link a market-based compliance mechanism established pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code and specified in Sections 95801 to 96022, inclusive, of Title 17 of the California Code of Regulations with any other state, province, or country unless the state agency notifies the Governor that the agency intends to take such action and the Governor, acting in his or her independent capacity, makes all of the following findings:
(1) The jurisdiction with which the state agency proposes to link has adopted program requirements for greenhouse gas reductions, including, but not limited to, requirements for offsets, that are equivalent to or stricter than those required by Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(2) Under the proposed linkage, the State of California is able to enforce Division 25.5 (commencing with Section 38500) of the Health and Safety Code and related statutes, against any entity subject to regulation under those statutes, and against any entity located within the linking jurisdiction to the maximum extent permitted under the United States and California Constitutions.
(3) The proposed linkage provides for enforcement of applicable laws by the state agency or by the linking jurisdiction of program requirements that are equivalent to or stricter than those required by Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(4) The proposed linkage and any related participation of the State of California in Western Climate Initiative, Incorporated, shall not impose any significant liability on the state or any state agency for any failure associated with the linkage.
(g) The Governor shall issue findings pursuant to subdivision (f) within 45 days of receiving a notice from a state agency, and shall provide those findings to the Legislature. The findings shall consider the advice of the Attorney General. The findings to be submitted to the Legislature shall not be unreasonably withheld. The findings shall not be subject to judicial review.
(a) The Legislature finds and declares both of the
following:
(1) California's participation in the Western Climate Initiative, Incorporated, requires that its sole purpose be to provide operational and technical support to California in its implementation of Division 25.5 (commencing with Section 38500) of the Health and Safety Code and to provide support to the greenhouse gas emissions reduction programs of other jurisdictions. Given its limited scope of activities, the Western Climate Initiative, Incorporated, does not have the authority to create policy with respect to any existing or future program or regulation undertaken pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(2) The state recognizes the ongoing efforts of the Western Climate Initiative, Incorporated, have resulted in policies that are consistent with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) as well as bylaws that meet the requirements of this section.
(b) The California membership of the Board of Directors of the Western Climate Initiative, Incorporated, as established pursuant to Section 12894, shall participate on the board so long as the Western Climate Initiative, Incorporated, maintains policies and bylaws according to all of the following:
(1) An open meetings policy that is and remains consistent with the general policies of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1) and affords the public the greatest possible access consistent with the other duties of the Western Climate Initiative, Incorporated.
(2) A records availability policy that is and remains consistent with the general policies of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) and affords the public access to corporate records consistent with the operating needs and other duties of the Western Climate Initiative, Incorporated, and all applicable legal privileges.
(3) Bylaws that limit the activities of the Western Climate Initiative, Incorporated, to the technical and operational support of the greenhouse gas emissions reduction programs of California and other jurisdictions. These bylaws shall not allow the Western Climate Initiative, Incorporated, to have policymaking authority with respect to these programs.
(c) The State Air Resources Board shall provide notice to the Joint Legislative Budget Committee for all procurements over one hundred fifty thousand dollars ($150,000) proposed by the Western Climate Initiative, Incorporated, that are expected to result in a contract no later than 30 days prior to the execution of those contracts.
(d) Commencing January 1, 2014, the State Air Resources Board shall include information on all proposed expenditures and allocations of moneys to the Western Climate Initiative, Incorporated, in the Governor's Budget.
(1) California's participation in the Western Climate Initiative, Incorporated, requires that its sole purpose be to provide operational and technical support to California in its implementation of Division 25.5 (commencing with Section 38500) of the Health and Safety Code and to provide support to the greenhouse gas emissions reduction programs of other jurisdictions. Given its limited scope of activities, the Western Climate Initiative, Incorporated, does not have the authority to create policy with respect to any existing or future program or regulation undertaken pursuant to Division 25.5 (commencing with Section 38500) of the Health and Safety Code.
(2) The state recognizes the ongoing efforts of the Western Climate Initiative, Incorporated, have resulted in policies that are consistent with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) as well as bylaws that meet the requirements of this section.
(b) The California membership of the Board of Directors of the Western Climate Initiative, Incorporated, as established pursuant to Section 12894, shall participate on the board so long as the Western Climate Initiative, Incorporated, maintains policies and bylaws according to all of the following:
(1) An open meetings policy that is and remains consistent with the general policies of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1) and affords the public the greatest possible access consistent with the other duties of the Western Climate Initiative, Incorporated.
(2) A records availability policy that is and remains consistent with the general policies of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) and affords the public access to corporate records consistent with the operating needs and other duties of the Western Climate Initiative, Incorporated, and all applicable legal privileges.
(3) Bylaws that limit the activities of the Western Climate Initiative, Incorporated, to the technical and operational support of the greenhouse gas emissions reduction programs of California and other jurisdictions. These bylaws shall not allow the Western Climate Initiative, Incorporated, to have policymaking authority with respect to these programs.
(c) The State Air Resources Board shall provide notice to the Joint Legislative Budget Committee for all procurements over one hundred fifty thousand dollars ($150,000) proposed by the Western Climate Initiative, Incorporated, that are expected to result in a contract no later than 30 days prior to the execution of those contracts.
(d) Commencing January 1, 2014, the State Air Resources Board shall include information on all proposed expenditures and allocations of moneys to the Western Climate Initiative, Incorporated, in the Governor's Budget.
(a) There is in the Business, Consumer Services, and Housing
Agency a Department of Business Oversight containing the Division of
Corporations, which has the responsibility for administering various
laws. In order to effectively support the Division of Corporations
in the administration of these laws, there is hereby established the
State Corporations Fund. All expenses and salaries of the Division of
Corporations shall be paid out of the State Corporations Fund.
Therefore, notwithstanding any provision of any law administered by
the Division of Corporations declaring that fees, reimbursements,
assessments, or other money or amounts charged and collected by the
Division of Corporations under these laws are to be delivered or
transmitted to the Treasurer and deposited to the credit of the
General Fund, all fees, reimbursements, assessments, and other money
or amounts charged and collected under these laws shall be delivered
or transmitted to the Treasurer and deposited to the credit of the
State Corporations Fund.
(b) Funds appropriated from the State Corporations Fund and made available for expenditure for any law or program of the Division of Corporations may come from the following:
(1) Fees and any other amounts charged and collected pursuant to Section 25608 of the Corporations Code, except for fees and other amounts charged and collected pursuant to subdivisions (o) to (r), inclusive, of Section 25608 of the Corporations Code.
(2) Fees collected pursuant to subdivisions (a), (b), (c), and (d) of Section 25608.1 of the Corporations Code.
(b) Funds appropriated from the State Corporations Fund and made available for expenditure for any law or program of the Division of Corporations may come from the following:
(1) Fees and any other amounts charged and collected pursuant to Section 25608 of the Corporations Code, except for fees and other amounts charged and collected pursuant to subdivisions (o) to (r), inclusive, of Section 25608 of the Corporations Code.
(2) Fees collected pursuant to subdivisions (a), (b), (c), and (d) of Section 25608.1 of the Corporations Code.
(a) This section applies to every action brought in the name
of the people of the State of California by the Commissioner of
Business Oversight before, on, or after the effective date of this
section, when enforcing provisions of those laws administered by the
Commissioner of Business Oversight which authorize the Commissioner
of Business Oversight to seek a permanent or preliminary injunction,
restraining order, or writ of mandate, or the appointment of a
receiver, monitor, conservator, or other designated fiduciary or
officer of the court, except actions brought against any of the
licensees specified in paragraphs (1) through (8), inclusive, of
subdivision (b) of Section 300 of the Financial Code that are
governed by other law. Upon a proper showing, a permanent or
preliminary injunction, restraining order, or writ of mandate shall
be granted and a receiver, monitor, conservator, or other designated
fiduciary or officer of the court may be appointed for the defendant
or the defendant's assets, or any other ancillary relief may be
granted as appropriate. The court may order that the expenses and
fees of the receiver, monitor, conservator, or other designated
fiduciary or officer of the court, be paid from the property held by
the receiver, monitor, conservator, or other court-designated
fiduciary or officer, but neither the state, the Business, Consumer
Services, and Housing Agency, nor the Department of Business
Oversight shall be liable for any of those expenses and fees, unless
expressly provided for by written contract.
(b) The receiver, monitor, conservator, or other designated fiduciary or officer of the court may do any of the following subject to the direction of the court:
(1) Sue for, collect, receive, and take into possession all the real and personal property derived by any unlawful means, including property with which that property or the proceeds thereof has been commingled if that property or the proceeds thereof cannot be identified in kind because of the commingling.
(2) Take possession of all books, records, and documents relating to any unlawfully obtained property and the proceeds thereof. In addition, they shall have the same right as a defendant to request, obtain, inspect, copy, and obtain copies of books, records, and documents maintained by third parties that relate to unlawfully obtained property and the proceeds thereof.
(3) Transfer, encumber, manage, control, and hold all property subject to the receivership, including the proceeds thereof, in the manner directed or ratified by the court.
(4) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof to any person who committed, aided or abetted, or participated in the commission of unlawful acts or who had knowledge that the property had been unlawfully obtained.
(5) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof made with the intent to hinder or delay the recovery of that property or any interest in it by the receiver or any person from whom the property was unlawfully obtained.
(6) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof that was made within one year before the date of the entry of the receivership order if less than a reasonably equivalent value was given in exchange for the transfer, except that a bona fide transferee for value and without notice that the property had been unlawfully obtained may retain the interest transferred until the value given in exchange for the transfer is returned to the transferee.
(7) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof made within 90 days before the date of the entry of the receivership order to a transferee from whom the defendant unlawfully obtained some property if (A) the receiver establishes that the avoidance of the transfer will promote a fair pro rata distribution of restitution among all people from whom defendants unlawfully obtained property and (B) the transferee cannot establish that the specific property transferred was the same property which had been unlawfully obtained from the transferee.
(8) Exercise any power authorized by statute or ordered by the court.
(c) No person with actual or constructive notice of the receivership shall interfere with the discharge of the receiver's duties.
(d) No person may file any action or enforce or create any lien, or cause to be issued, served, or levied any summons, subpoena, attachment, or writ of execution against the receiver or any property subject to the receivership without first obtaining prior court approval upon motion with notice to the receiver and the Commissioner of Business Oversight. Any legal procedure described in this subdivision commenced without prior court approval is void except as to a bona fide purchaser or encumbrancer for value and without notice of the receivership. No person without notice of the receivership shall incur any liability for commencing or maintaining any legal procedure described by this subdivision.
(e) The court has jurisdiction of all questions arising in the receivership proceedings and may make any orders and judgments as may be required, including orders after noticed motion by the receiver to avoid transfers as provided in paragraphs (4), (5), (6), and (7) of subdivision (b).
(f) This section is cumulative to all other provisions of law.
(g) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
(h) The recordation of a copy of the receivership order imparts constructive notice of the receivership in connection with any matter involving real property located in the county in which the receivership order is recorded.
(b) The receiver, monitor, conservator, or other designated fiduciary or officer of the court may do any of the following subject to the direction of the court:
(1) Sue for, collect, receive, and take into possession all the real and personal property derived by any unlawful means, including property with which that property or the proceeds thereof has been commingled if that property or the proceeds thereof cannot be identified in kind because of the commingling.
(2) Take possession of all books, records, and documents relating to any unlawfully obtained property and the proceeds thereof. In addition, they shall have the same right as a defendant to request, obtain, inspect, copy, and obtain copies of books, records, and documents maintained by third parties that relate to unlawfully obtained property and the proceeds thereof.
(3) Transfer, encumber, manage, control, and hold all property subject to the receivership, including the proceeds thereof, in the manner directed or ratified by the court.
(4) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof to any person who committed, aided or abetted, or participated in the commission of unlawful acts or who had knowledge that the property had been unlawfully obtained.
(5) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof made with the intent to hinder or delay the recovery of that property or any interest in it by the receiver or any person from whom the property was unlawfully obtained.
(6) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof that was made within one year before the date of the entry of the receivership order if less than a reasonably equivalent value was given in exchange for the transfer, except that a bona fide transferee for value and without notice that the property had been unlawfully obtained may retain the interest transferred until the value given in exchange for the transfer is returned to the transferee.
(7) Avoid a transfer of any interest in any unlawfully obtained property including the proceeds thereof made within 90 days before the date of the entry of the receivership order to a transferee from whom the defendant unlawfully obtained some property if (A) the receiver establishes that the avoidance of the transfer will promote a fair pro rata distribution of restitution among all people from whom defendants unlawfully obtained property and (B) the transferee cannot establish that the specific property transferred was the same property which had been unlawfully obtained from the transferee.
(8) Exercise any power authorized by statute or ordered by the court.
(c) No person with actual or constructive notice of the receivership shall interfere with the discharge of the receiver's duties.
(d) No person may file any action or enforce or create any lien, or cause to be issued, served, or levied any summons, subpoena, attachment, or writ of execution against the receiver or any property subject to the receivership without first obtaining prior court approval upon motion with notice to the receiver and the Commissioner of Business Oversight. Any legal procedure described in this subdivision commenced without prior court approval is void except as to a bona fide purchaser or encumbrancer for value and without notice of the receivership. No person without notice of the receivership shall incur any liability for commencing or maintaining any legal procedure described by this subdivision.
(e) The court has jurisdiction of all questions arising in the receivership proceedings and may make any orders and judgments as may be required, including orders after noticed motion by the receiver to avoid transfers as provided in paragraphs (4), (5), (6), and (7) of subdivision (b).
(f) This section is cumulative to all other provisions of law.
(g) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.
(h) The recordation of a copy of the receivership order imparts constructive notice of the receivership in connection with any matter involving real property located in the county in which the receivership order is recorded.
