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In this comprehensive talk, two environmentalists, Mary Nichols and John Cruden, discuss automotive standards, low carbon fuel standards, and describe measures taken to reach regulation requirements.
About Law & Nature:
Discussions of Environmental Law & Policy developed by the EarthxLaw Advisory Council
Law & Nature promises lively discussions by environmental thought leaders on legal and policy issues of critical importance to environmental protection. This series is developed by the EarthxLaw Advisory Council, a blue ribbon board of prominent environmental law practitioners brought together by EarthX to assist in developing programs and facilitating dialog on environmental law and policy.
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In this comprehensive talk, two environmentalists, Mary Nichols and John Cruden, discuss automotive standards, low carbon fuel standards, and describe measures taken to reach regulation requirements.
About Law & Nature:
Discussions of Environmental Law & Policy developed by the EarthxLaw Advisory Council
Law & Nature promises lively discussions by environmental thought leaders on legal and policy issues of critical importance to environmental protection. This series is developed by the EarthxLaw Advisory Council, a blue ribbon board of prominent environmental law practitioners brought together by EarthX to assist in developing programs and facilitating dialog on environmental law and policy.
EarthX
Love Our Planet.
The Official Network of Earth Day.
About Us:
At EarthX, we believe our planet is a pretty special place. The people, landscapes, and critters are likely unique to the entire universe, so we consider ourselves lucky to be here. We are committed to protecting the environment by inspiring conservation and sustainability, and our programming along with our range of expert hosts support this mission. We’re glad you’re with us.
EarthX is a media company dedicated to inspiring people to care about the planet. We take an omni channel approach to reach audiences of every age through its robust 24/7 linear channel distributed across cable and FAST outlets, along with dynamic, solution oriented short form content on social and digital platforms. EarthX is home to original series, documentaries and snackable content that offer sustainable solutions to environmental challenges. EarthX is the only network that delivers entertaining and inspiring topics that impact and inspire our lives on climate and sustainability.
EarthX Website: https://earthxmedia.com/
Follow Us:
Instagram: https://www.instagram.com/earthxmedia/
LinkedIn: https://www.linkedin.com/company/earthxmedia
Facebook: https://www.facebook.com/EarthXMedia/
TikTok: https://www.tiktok.com/@earthxmedia
YouTube: https://www.youtube.com/@EarthXMedia
How to watch:
United States:
- Spectrum
- AT&T U-verse (1267)
- DIRECTV (267)
- Philo
- FuboTV
- Plex
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#EarthDay #Environment #Sustainability #EcoFriendly #Conservation #EarthX
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TVTranscript
00:00Hi, I'm Jeff Sivins, chair of the EarthX Law Advisory Council, and I've been happy
00:10to be involved in a number of the law and nature series that we've done featuring prominent
00:17environmental thought leaders, and today is no different.
00:20We have an outstanding program.
00:22I'm privileged to introduce John Cruden, principal at Beverage Diamond, one of the
00:30legends of environmental law, and today he's going to interview another legend of environmental
00:35law.
00:36Take it away, John.
00:38Jeff, thank you so much for your leadership, and thank you for EarthX for giving me the
00:43opportunity to talk with and have a conversation with one of my heroes.
00:49I think everybody needs heroes in their world, and here's somebody that in my life has stood
00:55out as an extraordinary individual in so many ways.
01:00For over a half century, Mary Nichols has been a leader in advancing environment at
01:06state, local, federal, for Republican and Democratic governors.
01:12She was the longest-standing head of the California Air Resources Board.
01:16She has initiated many of the reforms in California that the Biden administration is now adopting
01:22or endorsing as a path toward environmental progress, reducing greenhouse gases, and getting
01:29international countries involved.
01:32She was supervised and personally negotiated in one of the largest settlements in the history
01:39of the federal government.
01:40There's literally no one, no one that I know at any level that has done more, accomplished
01:44more, been more seen on environmental issues in our lifetime than Mary Nichols.
01:53She's been referred to in the paper as the Queen of Green and described as the most influential
01:58environmental regulatory person in history.
02:02Mary, thank you so much for being here and giving a chance to the audience to learn something
02:07about your career and the impact that you've had on environmental progress.
02:12Thanks, John.
02:13It's always a pleasure to sit and just receive compliments.
02:17So I want to start, you know, you're in California right now, but that's not where you started.
02:22You started in, you were born in Minnesota and raised in New York, and tell us something
02:26about growing up and your parents.
02:28What was that like?
02:29Oh, sure.
02:30I was born shortly before the end of the Second World War, so I'm actually even older than
02:37a baby boomer, right?
02:39I was born in 1945.
02:41My dad had been shipped overseas and he was at the Battle of the Bulge, and my mom went
02:46home to Minnesota, where she was from, to have me.
02:50But as soon as he was discharged, my dad came back to resume his education at Cornell.
02:58He dropped out of college in order to go enlist to fight in the Second World War, and my mother
03:04was able to be with him as he traveled around the country doing training.
03:08He was an electrical engineer, which was a much in-demand profession.
03:13And when he finished, actually before he even graduated with his bachelor's degree, he was
03:19being recruited by the then brand new computer industry.
03:25He was interested in radio wave communications.
03:30So at one point during his time at Cornell, he went and spent a year up in Alaska, but
03:35the family got to go on studying the Northern Lights and their effects on communication.
03:40So it was pretty fun.
03:43My mother got her PhD before my father did, and her field was French, Spanish, Italian,
03:50romance languages.
03:52But because of the rules that were in effect in those days at Cornell, which hopefully
03:58they're ashamed of now, they wouldn't allow two married people to be in the university
04:05teaching, even in totally different schools or departments.
04:10So she ended up being an editor for a while at the University Press, and then went down
04:16the hill to the public high school and taught languages for most of her career.
04:23And she was very proud of the fact that because of her doctorate and because of New York State's
04:29progressive policies, she actually earned more money than my father did for most of
04:35their career.
04:36And the two of them also sort of tag teamed in local politics.
04:40I come from a long line on both sides of very left people.
04:45My grandparents were the ones who immigrated to America, but they were, in the case of
04:51my father's family, they were communists, and my mother's were socialists.
04:57So that was a lot to argue about at the dinner table.
05:01But they ended up being progressive Democrats, and my father served three terms as the mayor
05:08of Ithaca, which is one of those towns like Berkeley and Madison, Wisconsin, that are
05:13famous for pioneering progressive policies.
05:18In his case, he installed a clerk who was willing to allow him to marry gay people before
05:27that was allowed by the laws of New York State, but they did it in Ithaca anyway.
05:32They banned discrimination based on weight, which was really a great cause, in my opinion,
05:39and other things.
05:42It sounds a little bit humorous, and it's certainly, you can chuckle sometimes at things
05:47like the Ithaca currency that they created, which was a way of doing bartering in a university
05:53town where a lot of people could do very interesting things but couldn't necessarily make money
05:59at them and worked out ways to do exchanges.
06:03So it was an interesting, great place to grow up.
06:07But I was the first person in my family to become a lawyer.
06:11That was my distinction.
06:13My mother's-
06:14Absolutely.
06:15So when you went to Cornell, that was just like hometown for you, but then how did you
06:19do that?
06:20How did you go from Cornell to Yale?
06:23I did it via New York.
06:25I actually graduated early because I was ready to leave Ithaca by that point, my junior year,
06:33and I'd been working all the way through school as a writer for the university's public relations
06:41and alumni news and all that sort of stuff.
06:45And my boss, who was the head of that department, was friends with the then New York bureau
06:52manager for the Wall Street Journal.
06:54And the Wall Street Journal editor, whose name was William Claby, asked my boss if he
07:01knew of any girls who might be interested in coming and working for the journal because
07:06they wanted to have a girl reporter.
07:09They didn't have one, and they thought that would be a good thing to do.
07:11This was in 1966.
07:15So I finished my degree and moved to New York and spent two years working as a reporter.
07:24Well, reporter and then for the Vera Institute of Justice, which is really what got me to
07:29law school.
07:30But even before that, I'd formulated the idea that I would like to be a lawyer because I
07:35spent a summer and most of the year actually working in the civil rights movement.
07:41So I went south and I had an opportunity to see some of the world's best lawyers at that
07:49point up close.
07:51And when I thought I'd like to go to law school, I went to see one of them, Burke Marshall,
07:56who was on the Vera Institute board and told him of my interest.
08:01And he said, well, you better go to Yale because that's really the only place worth going to.
08:07He actually did say that.
08:08And so that was the only place I applied.
08:11And luckily for me, I got in.
08:13You know, but during this time period now, now we started having the moments.
08:20We have our very first Earth Day.
08:22We have the creation of EPA, the 1970 Clean Air Act.
08:30And so somehow you find yourself in California suing Los Angeles over air problems.
08:36How did you do that?
08:38It turned out when I got to L.A. that there was a new environmental law firm that was
08:43just getting started.
08:45At that point, it was formed by four guys who all left O'Melveny and Myers, the big
08:53L.A. law firm, and had gotten their first grant.
08:56And they were just about to get started.
08:59And they took me on as a law clerk because I hadn't taken the California bar yet.
09:04So while I was studying for the bar, I was also working part time for them.
09:08And that is also about the same time that the Clean Air Act was coming into force.
09:14And so as I was getting ready to hopefully actually launch my career as a lawyer, we
09:22were approached by the city of Riverside and the city of San Bernardino, both of which
09:26are downwind from Los Angeles and receive a daily dose of pollution that's borne in
09:33by the wind from the Pacific Ocean.
09:37And they were anxious to find a way to do something to stop this horrible assault.
09:45And so they came to us and asked us if we would sue Los Angeles.
09:51And I was assigned the job of doing the research to see if there was any way they could do
09:56that.
09:57And the answer was pretty much no.
09:59But there was this new law that said that there was essentially the right to have a
10:07plan that would clean up your air and get it to make whatever it took, efforts to achieve
10:15federal air quality standards.
10:17And if the state didn't prepare a plan that met that test, then EPA had to step in and
10:23do it.
10:24So it was pretty clear that the state hadn't done it.
10:27They'd submitted a plan, but it said we can't meet these federal standards because they're
10:31too strict.
10:32They're going to make us do things that are impossible, like restrict the amount of driving
10:37and we can't do that.
10:38So that was what they handed in to EPA.
10:42EPA basically just took it and sat on it.
10:45And so we sued EPA and it was an open and shut case.
10:52There wasn't anything to have a trial about.
10:54It was strictly a case on summary judgment.
10:57Well, right after that time period.
11:02So I clerked on the California Supreme Court for Stanley Moss.
11:07The year before me, his clerk was Jerry Brown.
11:12So Jerry Brown, you know, because Jerry Brown's dad had appointed Stanley Moss to the bench.
11:18And so this was reciprocal, I guess, to bring him in as a clerk.
11:23Well, Jerry Brown obviously went on to do better things several different times.
11:27But on this time around, he becomes governor.
11:30And one of his appointments must have been a very young Mary Nichols to the California
11:35Air Resources Board.
11:37Was CARB that old then?
11:39Was that a new institution?
11:40No, CARB was actually created under Jerry's father, Pat Brown.
11:47And Ronald Reagan appointed the man who's credited with having discovered the chemical
11:54formula for smog, Dr. Ari Hagen-Schmidt, who was a professor of chemistry, chemical engineer,
12:01actually, at Caltech.
12:03And so Dr. Hagen-Schmidt became the first chair of the Air Resources Board.
12:09He was a crusty guy, but he didn't like smog either.
12:16The mandate of the board was essentially to deal with automobiles.
12:22They knew the problem that they were facing was primarily the emissions from cars.
12:29And so they were going to try to force Detroit to do something about cleaning up the cars.
12:36But they lacked some tools, and mostly they lacked any meaningful political support coming
12:42from the governor's office at that time.
12:45So when Jerry ran, part of his platform was that he was going to clean up the air.
12:52And he had a Blue Skies pledge.
12:56And his campaign manager, Tom Quinn, who had grown up in Los Angeles and really had very
13:04strong feelings about wanting to do something about the car companies and their flagrant
13:10disregard for the health and well-being of the people in California, asked for the job
13:17of chair of the Air Resources Board, which up until that time had not been considered
13:21to be a political plum appointment.
13:24And in fact, it wasn't even a full-time job.
13:26He had to get the governor to agree to make him a member of the governor's staff so that
13:32he could get a full-time salary.
13:35But since it is a board, it had to operate under California rules as a board.
13:41So he needed to have two other people, at least, in order to actually conduct any business.
13:48And he needed to have them fit certain criteria that were spelled out in the statute.
13:54So one of the positions could be for a lawyer, actually a lawyer, a chemist, or a farmer.
14:01So I qualified as a lawyer.
14:04And another position was for an automotive engineer.
14:08And that was Professor Robert Sawyer, who was a very distinguished emeritus professor
14:14of combustion engineering.
14:17It isn't lost on me what you talk about going from Yale to a four-person male law firm of
14:22which you're the first female.
14:24Now you're talking about going to California Air Resources Board.
14:28It doesn't sound like there are women all over the place in the Air Resources Board.
14:34This sounds like you're elbowing your way into a guy organization.
14:40Well, ARB was essentially an engineering organization.
14:45And there were very, very few women engineers at that point.
14:48But I graduated from Yale in 1971.
14:52I was a member of the largest cohort of women that they'd ever had.
14:57There were 18 of us out of a class of 160.
15:01And that was twice as many as they'd ever had.
15:04And the only reason for that was the Vietnam War.
15:08The law school was facing the fact that a lot of their normal group of guys were going
15:17to defer in some way or another to avoid the draft order.
15:21So they needed to fill up the class.
15:23And they did it with women.
15:26So at some stage, you evolved from CARB.
15:31Now this is your NGO time.
15:33Now you're helping start or start the Los Angeles office of the Natural Resources Defense Council.
15:41So two questions.
15:42I want you to think broadly, what was that like at that stage?
15:46And then now, years later, what do you think about the role of NGOs
15:52and where it fits in the environmental progressive world?
15:57I joined NRDC to help them start their Los Angeles office
16:03because I felt very strongly, and I still do,
16:07that Los Angeles was overlooked by the national environmental community.
16:13Everybody who had a West Coast office after they all started on the East Coast, basically,
16:20all the big organizations, except for the Sierra Club, which is in a class by itself.
16:24It has a different history.
16:27But the NGO organizations that were formed in the 70s are all East Coast-based.
16:36And then after they start to get established, they create an outpost in the West.
16:43And it's always in San Francisco, just like all the federal agencies that have a West Coast office
16:50have their office in San Francisco, because that's the city.
16:53And Los Angeles is the Wild West.
16:56And they were just wrong about that, I believe.
16:59I think they, first of all, just failed to understand that Los Angeles was not this hopeless, smog-bound place.
17:07It was a place that had a lot of people in it who actually appreciated and loved
17:12the coast and the mountains and the out-of-doors,
17:15and that it was also the fastest-growing part of the state and was going to be,
17:20and by that time actually already was, politically much more important than San Francisco,
17:26which remains a lovely city.
17:27I'm very fond of San Francisco, like to visit it.
17:30But the power really was in the South.
17:35And more to the point for the organizations that were trying to fund their West Coast operations,
17:41the money was in the South.
17:43And so NRDC decided to allow one of their lawyers who really wanted to come to Los Angeles
17:53to open up an office here.
17:55And he came to visit and asked if I'd be willing to serve on their advisory board.
18:00And I said, no, but I'll come to work for you.
18:03So they accepted me.
18:06And it was wonderful.
18:08It was a lot of fun.
18:09And during that time, we made some important things happen.
18:14We also wrote a book called The Amazing L.A. Environment, A Handbook for Change,
18:19which for the first time in one place explained in sort of ordinary laypeople's language
18:26where the electricity comes from, where the water comes from, where the sewage goes,
18:31all those things that sort of describe the basic interest,
18:34the environmental infrastructure of Southern California.
18:38And it was a big success.
18:42And that helped provide kind of a calling card for NRDC.
18:45So that's the past.
18:48EDF shortly thereafter started a Los Angeles office and other groups sprang up.
18:54I think we may not have as many groups on the ground as the Bay Area does.
19:00In fact, I know we don't.
19:02But what Los Angeles has, I think, is a very cohesive environmental community
19:08and also one that has been diverse from day one,
19:13not just in terms of having women, but of having people of color as members and as staff members
19:19and as taking on equity issues as a part of their portfolio
19:26without even thinking about it, really, other than just this is what you do.
19:31The very first case that the Center for Law and the Public Interest brought in L.A.,
19:36which was when I was just beginning there as a clerk,
19:39was a case to stop a freeway called the Century Freeway,
19:42which ran through a historically Black community in South L.A.
19:47and was a plan to take out hundreds and hundreds of working class houses
19:56and kind of destroy some small cities in order to basically fulfill the visions
20:01of the Caltrans engineers of another East-West freeway.
20:07And we went out and recruited, essentially.
20:12We did recruit the plaintiffs in that case,
20:15who were, in addition to the cities that wanted to stop the freeway,
20:18we recruited the Sierra Club and the NAACP as co-plaintiffs.
20:23And that was just, I mean, that was just the way it was.
20:26And, you know, people today act as though it's a new discovery
20:31that Black and brown people are disproportionately impacted
20:36by all kinds of bad decisions about where to put infrastructure.
20:42But it's not new.
20:45It's just been rediscovered and hopefully with stronger political backing.
20:52So you're at the opening moments, essentially,
20:55of the entire environmental movement, which I still date from about 1970.
20:59And by this time, you've already done private practice a bit.
21:01You've already been in state government.
21:03Now you've been in the NGO.
21:05Bill Clinton becomes the President of the United States,
21:08and he picks you as the Assistant Administrator for AIR.
21:12I think this is the first time that I saw you, really,
21:15first time I knew of you.
21:17I was at Department of Justice then.
21:19But you became well known for acid rain and cap and trade programs,
21:25some of those things now that we were just hearing about for the first time.
21:30You look upon that as a building block for some of the things
21:34that you've been doing since that time.
21:36How did that work being in federal government for the first time?
21:41I've often said that some of the best people I ever met and worked with
21:46were the staff at the AIR program at EPA.
21:49They were really pioneers in many respects,
21:53and they were also determined and brave people
21:58because, although nothing will ever match the kind of assault
22:02that Donald Trump made on EPA,
22:04they had not always received a high degree of support
22:08from administrations in the past either.
22:11And the AIR program has been the tip of the spear for EPA.
22:14It's always the thing that gets the most attention
22:17because the Clean Air Act is such a powerful piece of legislation,
22:21and it contains this marvelous provision that allows for citizen suits.
22:28The idea that if you are a citizen, a grieved person anywhere,
22:34you can sue the agency to force them to carry out their duties under the law
22:39was remarkable,
22:42and it has meant that that office has had its agendas set for them,
22:50in many cases by environmental activist organizations.
22:54And so, as the Assistant Administrator for AIR,
22:58even though I was one of them, I came from the NGO community,
23:02I was not spared at all by my colleagues.
23:06I was sued on a regular basis,
23:10but what we were able to do was to sit down and negotiate
23:14and not just fight every issue in court,
23:19but really try to find ways to comply,
23:22which is extremely difficult because the provisions of the law
23:26require EPA to do things that they almost never have enough funding
23:30or political support to do.
23:32But this is, as I recall, Bill Clinton was a Democrat,
23:38which probably means so were you.
23:41All of a sudden, Jerry Brown isn't governor any longer,
23:45and a former bodybuilder movie actor comes in to California,
23:51who, as I recall, is a Republican.
23:54How does it work that you, as a Democrat in the Clinton administration,
23:59go back to California and get picked by a Republican governor
24:04to now go back to the California Air Resources Board?
24:08Well, there's a few permutations along the way there,
24:13but let's just skip to Arnold.
24:16Arnold took office after a recall.
24:19Remember, Ray Davis, who had been Jerry Brown's chief of staff
24:26and became governor, was recalled shortly after he was elected to his second term.
24:34There were a lot of issues at the time,
24:36but most people, I think, would agree with me that the recall wouldn't have worked
24:41if it hadn't been for the fact that Arnold threw his hat into the ring
24:46and agreed to become the candidate for governor.
24:50So all of a sudden, you had a movie star, a celebrity,
24:53who vowed to change everything and had an image that went along with the idea
24:59that he was going to come in there and break up all the bad stuff in Sacramento
25:05and return power to the people, et cetera.
25:08And the fact of the matter is that he didn't succeed in doing a lot of the things
25:14that he set out to do and wanted to do,
25:17some of which were impossible because of structural issues
25:21like the way the tax system works,
25:24and some of which just turned out to be too heavy a lift.
25:29But it turned out that, and I think this is something
25:33that I wish more Republicans agreed with him,
25:36there are a few, and hopefully there are getting to be more,
25:39but he completely failed to get the memo that said,
25:44if you're a Republican, you have to be against environmental protection.
25:49In fact, he thought that the issue was completely nonpartisan.
25:55He had what I think of as kind of a European attitude
25:59about the government's responsibility to provide a healthy environment.
26:06He was and is a passionate lover of the state of California
26:11and all of its wonderful resources.
26:14And he wanted to have a state that was leading the way in environmental protection.
26:21He understood that global warming was a global issue.
26:26And again, California is a state that doesn't just compare itself against other states.
26:30It also looks to the world as its benchmark for things.
26:35And so when the Democrats in the legislature started to make noises
26:43about passing a comprehensive bill on climate change, he welcomed it.
26:49He negotiated for a couple of things that he wanted,
26:54but the main thing he negotiated for was the ability to have a market-based program,
27:02a cap-and-trade program as a tool, if not the principal tool,
27:09for achieving the goals of reaching the same levels of reduction
27:16in greenhouse gas emissions as the Kyoto Treaty.
27:19So the statute that he signed, AB 32, is a pretty slim piece of legislation,
27:26but it commits the state to being a party, in effect, to the global agreement
27:33on how much reduction there needed to be to deal with the problem of global warming
27:40and created a program to make that happen,
27:45basically a mandate for the state to achieve those reductions,
27:49building on what the state had already done in terms of requiring reductions in emissions from vehicles.
27:59So they first passed a law that said ARB had to set limits on GHG emissions from cars,
28:07and then after that came the Comprehensive Global Warming Solutions Act of 2006, as it's called.
28:15But anyway, that was Arnold's bill.
28:17So my predecessor, Bob Sawyer, same guy who I had served with under Jerry Brown,
28:25got crosswise with the governor.
28:30I don't think anybody will ever know entirely what transpired between the two of them,
28:35but the governor just didn't think that Bob had the same kind of political view of all of this that he did
28:44or that he was going to be able to carry out this piece of legislation,
28:48which, like many other things, even before the ink was dry, people were fighting over what it meant
28:54and how it was going to be implemented and how much it was going to cost.
28:58And he ended up firing him at the last—it was a midnight firing kind of situation.
29:06There was all kinds of consternation, and the legislature, the Democrats, immediately seized on it to say,
29:12we told you so. He didn't really mean it. He doesn't really care about this at all.
29:17And the governor's chief of staff had to go out looking for somebody who would come in and take over the board
29:24and rescue this program, which was the governor's signature program.
29:28So she called me and asked me if I knew of anybody, and I said, yeah, me.
29:36So this is another example of, you know, stick up your hand and you get chosen.
29:41So in fact, that was what happened. It was not quite that simple.
29:48I did have to actually be interviewed for the job by the governor, who had lots of questions.
29:54But when he found out that I'd been responsible for the acid rain program
29:58and had already run a cap-and-trade program—in fact, the only cap-and-trade program up to that point
30:05that had ever been operated at the federal level—that seemed to seal the deal.
30:14Mary, our audience is across the world right now, people listening to you.
30:20Many of them are experienced and would know what the California Air Resources Board do
30:25because it's such a unique agency, but many do not.
30:27Would you just take a minute and let the audience know just a snapshot of why
30:35that organization would be so extraordinarily important
30:38in something like the climate bill, implementing it for California?
30:44Sure. Well, California Air Resources Board was created to deal with the problem of smog,
30:52which persists but has been dramatically reduced over time
30:56as a result of regulations that the board has adopted.
31:00So over the course of several decades, first by setting strong standards based on science,
31:08and then by taking steps to mandate the car companies, manufacturers of engines,
31:15people who operate power plants and refineries, and any other major sources of pollution
31:23have been subjected to the regulatory power that the board has.
31:30Over the years, the board ends up getting new members.
31:34What started as a five-member board is now a 14-member board
31:38with two ex-officio legislators who don't vote but sit on the board,
31:43representing the assembly and the state senate.
31:47And the board gets overseen and audited and otherwise critiqued,
31:56but they also keep being given more authority because it turns out to have been a very
32:03competent agency in terms of actually getting things done.
32:08So ARB is one of those fairly rare, I think, bureaucratic agencies which,
32:17under both Republicans and Democrats, has not only survived but enjoyed a great deal of support.
32:26And I have to say that support from the regulated community as well as from
32:33the more populist elements of the society is also an important factor because you have to have
32:40the people who are actually creating jobs and running the economy
32:45have to be willing to not just go along but support good regulation.
32:52And I would be remiss if I didn't say that when Governor Schwarzenegger
32:57signed AB 32, the organization that probably deserves most of the credit,
33:04at least co-equal with the green groups, would be the Silicon Valley
33:10business organizations that came in and lobbied because they believed that
33:15by having a strong first in the nation program that mandated California to be
33:24out front in trying to address the problem of global warming,
33:28California would also benefit. And they would benefit because they would be able to
33:35sell their inventions or their investment companies they were investing in all over the world.
33:44So if AB 32 represents pretty much the first of its kind of a comprehensive
33:51a market-driven program to reduce greenhouse gases, it was enormously controversial.
33:57People outside of California thought the economy of California would now fall apart completely.
34:04I mean, ultimately, there is a recall. How did you go about that? How were you implementing
34:10something that was that controversial at a time where this was all new? It was absolutely new.
34:18Well, first of all, I need to clarify that the market-based program that the governor wanted
34:24did make it into our final plan, and it is in effect today. But it is not the principal tool
34:31for reducing greenhouse gases in California. We developed a comprehensive plan that contains
34:38a portfolio of measures. And the measures that achieved the largest reductions that were designed
34:44to achieve the largest reductions were things like the automotive standards, the low-carbon
34:51fuel standard, which is a model in its own right and something that's just now really being looked
34:56at seriously at the federal level as a way to clean up the vehicle fuel supply and to create
35:05incentives for people to invent newer, cleaner kinds of fuels. The reason why it worked was
35:11because it was a mix of measures and not just any one thing. And the reason why we did it that
35:17way wasn't just because we were politically smart, although I think we were, but it was mostly that
35:23we thought that would be the most cost-effective and durable way of actually getting to the levels
35:30of reductions that we needed to meet the requirements of the law. And as it has turned
35:38out, and it's been looked at now by quite a number of economists, not all of whom started
35:43out favorably, disposed towards the California program, people generally have agreed that this
35:51mix of different measures was the best that we could have done to achieve that result.
35:59Lessons for us now, that experiment, that experience that you have now as we face an
36:06existential crisis right now with greenhouse gases, what do we learn from your experience of
36:12bringing AB 32 into reality? Again, I think one of the most important lessons to be learned
36:19from this is that there is no single magic bullet. There's a lot of buckshot out there
36:25and you have to try a lot of things. You have to be prepared to set ambitious goals that you're not
36:31sure how you're going to achieve, but that are based on a science that exists that tells you
36:36what you need to have. And this is a lesson from the Clean Air Act going back to the very beginning
36:41where air quality standards were set based on not what we thought was doable, but based on what you
36:47need to have if you're going to prevent the air from making people sick. So you set levels of
36:54reduction in your goals based on what the science tells you you've got to have, and then you devise
37:00a plan that will get you to it, understanding that some of the things that you try are not going to
37:05work. Others may work better than you thought they were going to, and you have to have the
37:10ability to be flexible and to make changes along the way that keep you moving towards the goal.
37:18Well, one of the criticisms along the way of greenhouse gas reductions in general is that
37:24we'll do all this domestically, but there won't be enough of an international coalition so that,
37:31and this is a global problem, not just a national problem, but that was not lost on you either,
37:36was it? You went to Canada, you were at the Paris Accords. How did you see California's role
37:45when you're talking to foreign countries, and were they responsive? Did you feel that it was
37:52more than just us that was trying to make these changes? This goes back again to Governor
38:00Schwarzenegger, who I have to give credit for positioning California on the global stage,
38:06and he took advantage of his celebrity as a movie star to go to the conference of parties,
38:12or if he didn't go himself to send a delegation, and to hold up California's example as one that
38:20would give encouragement and help to recruit others from around the globe. So under Schwarzenegger
38:31and then under Jerry Brown, this amplified enormously. We actually created a coalition
38:38of sub-nationals, as they're called. Not a very lovely term, but it covers states and regions,
38:47and we have now international associations of cities, all of which have not only made pledges
38:54and said, yeah, we want to do something, but are actually taking very concrete, specific steps and
39:01supporting each other and holding up each other's work. And when we go to the international UN
39:08conferences, even though we are not parties, we're not allowed in the room where the official
39:14delegates are negotiating the language that will be in their treaties or accords or agreements,
39:23but the side events, as they're called, and the work that's being done there is every bit as
39:30important and is in fact now considered essential to the national governments that are trying to
39:36work their way towards a global agreement, because they can't do this job without the support of the
39:45sub-national entities that are in every part of the world, the place where most of the decisions
39:54about land use development, most of the decisions about where the electricity is going to come from
40:00in a particular facility or a particular region, many of the decisions about are you going to be
40:08mining, are you going to be developing oil, etc., are made at the local and regional level,
40:15and the political support to do this stuff comes from there, literally the ground up.
40:23I'm about to move you back into where you started us out. You started out saying
40:31I'm in Los Angeles and we have air problems, it's largely cars. Now I'm moving you toward the
40:40Obama administration, and we're coming out of the recession, and it turns out that California
40:49has somewhat unique authority in cars and vehicle standards that other states can either
40:56emulate or not, and now looking at ways that we can impact greenhouse gas issues,
41:07trying to do that and marry together two disparate agencies of EPA and the
41:16National Transportation Safety Administration, and you're there because part of the leverage
41:22of getting them together is the so-called California cars. What are those, Mary? What
41:28are California cars, and how did that work? How are you playing in that historical compromise
41:35that occurred early on in the Obama administration that really did have an impact on transportation?
41:41So your question sort of assumes the fact that I'll just say again that the reason why California
41:48occupies the unique position that it does in the national debate about auto standards, cars,
41:56and trucks, and other mobile sources is that the Federal Clean Air Act, the 1970 Clean Air Act,
42:05gave us authority which no other state has. The industry wanted complete preemption. They wanted
42:12one set of standards at the federal level. This is what industries always want. They don't want
42:18to have to negotiate state by state, but California refused to go along with the Clean Air Act, and we
42:25had a big delegation then, as we do now, if it meant giving up their authority because they
42:32knew that the federal standards were never going to be as strong as what California would want.
42:39California's pollution problem was worse. California was willing to be an experimenter
42:45in pushing for better design and better technology from vehicles, and so that was what
42:53they held out for. Ronald Reagan fought for that, as has every other governor of the state. Pete
42:58Wilson, again, Democrats, Republicans, every time this issue has come up, have insisted that
43:04California maintain the right, and again, instead of just maintaining, over the years, the law has
43:11actually afforded other states the ability to opt into the California standards if they want to,
43:17so we now have 40 percent plus of the United States, which by law require California standards
43:28rather than the national standards. Every once in a while, the two actually catch up with each other,
43:34and this is what happened when Obama was elected. When it became clear that it was quite likely that
43:42he would be the next president, the auto industry actually came to us, came to me, and by that time,
43:51we all knew each other fairly well and said, we would like to find a way to get California
44:00on board with a national program whereby we would agree to enough reductions in pollution and
44:08emissions that California could accept that as being the equivalent of having your own standards,
44:18so that, in effect, there would be a national standard, and California would agree,
44:24while not giving up its standards, although they would have preferred that we give them up, but we
44:29didn't do that, but we said we would accept the compliance with the federal standards as being the
44:35equivalent of compliance with the California standards. You, as a lawyer, are, I'm sure, thinking,
44:42how did they do this? And it's complicated. I mean, the actual regulatory agreement that we
44:49made is complicated, but it's workable, and it has worked to achieve the result, which is that
44:59cars that are sold in the United States as a group, as a class, have met the California
45:07standards for greenhouse gas emissions, and so we were able to move the whole country forward,
45:13but that was because President Obama insisted that EPA give California the waiver that we'd
45:21been fighting for to keep our own standards, and then had his EPA and DOP sit down with us
45:28under White House supervision and negotiate this set of standards that covered both fuel economy
45:36and greenhouse gas emissions, so it was an incredible piece of lawyering, and a lot of
45:43very, very smart, good people worked on it, but it couldn't have happened without the recognition on
45:49the part of the industry that this was something that they needed to come up with a way to go along
45:55with as well, and that's probably one of the reasons why we felt so betrayed when, after
46:05President Trump took office, the industry went to him and said they wanted relief
46:10from those very standards that they had negotiated not so long before.
46:17So we have a whole administration where California is held out as a model of
46:25greenhouse gas reductions, as a model of reducing transportation
46:29problems, and not just greenhouse gas, it was also reducing nitrogen oxide and particulate
46:36matter and sulfur dioxide and others, and then all of a sudden a new president comes in. This
46:44transportation was not the only issue that you were fighting through in the Trump administration.
46:49What was that like going from being a leader in the area and all of a sudden being a defendant
46:54in cases? Well, we weren't mostly a defendant. We fought most of the lawsuits ourselves, and
47:03we had a strategy which was agreed upon at the very beginning that if we were going to save
47:10the Clean Air Act and save California's program and our vision of how the world should work,
47:18that we were going to have to not accept, we were just going to have to stand against
47:24anything that the Trump administration wanted to put up that was going to weaken any aspect of
47:33environmental law. And so we filed dozens and dozens of cases, not ever all by ourselves. We
47:42always had other states or NGOs or both. Sometimes we had industry coalitions with us as well,
47:52but we were determined that we were just not going to let them get away with anything.
47:57And we had a wonderful attorney general, Javier Becerra, now President Biden's choice for running
48:07the Health and Human Services program to represent us in all this litigation, and a governor,
48:16of course, who was happy to be part of it. I want to turn to one particular type of
48:23vehicles. It was toward the end of 2015. I had been leading the negotiations against BP for the
48:34Deepwater Horizon oil spill, and it wasn't public, but we had pretty much finished all the negotiations
48:41and we just are inking the last bit of the consent decree. And I get a call from Cynthia
48:52Giles, who was then a head of the Office of Enforcement, who said, pretty much,
48:57you're not going to believe what Mary Nichols just told me, something to that effect.
49:02And it was Volkswagen. That's what it is. And because I think all Volkswagen, you know,
49:14broke through you all there. Talk about that. Talk about how that happened and then how this
49:22whole thing started, you know, the beginning. And I think we were all surprised at those early
49:29moments. Well, first of all, I do think it's important to remember that EPA and California,
49:37in good times and bad, that is when we've disagreed and when we haven't,
49:41then when we have been in agreement about everything from a policy perspective,
49:47both have been committed to sharing the burden of enforcing clean air regulations. And our
49:56laboratory and their laboratory share information on a regular basis. And we've divided up some of
50:05the work of enforcement where EPA took most of the responsibility for the heavy duty engines because
50:14they had better testing capacity. And we took a larger share of work on the light duty vehicles,
50:23the passenger cars and light trucks. And so when California uncovered the cheating that was going on
50:35by Volkswagen, that information was shared immediately with EPA. And in the end,
50:42as you know, because you were the chief of our negotiating team, the federal presence,
50:50the federal power was key. I mean, California couldn't have achieved what we did all by
50:59ourselves. So I need to acknowledge you in that respect as well, and EPA, our colleagues at EPA.
51:06But as it happened, it was people that were working with California who were the ones who
51:12both figured out that there was something wrong, because the measurements that we were getting
51:20in the lab and on the road were so different from the certification data that we had from Volkswagen
51:28for these diesel vehicles. So we knew there was something amiss. And when the company actually
51:36confessed, one of their officials explained what they had been doing. It was California that
51:45received that information. And so we were the first to go forward with it. But the enforcement
51:54effort was a joint effort. The mechanism that the company had used to avoid compliance was
52:07not all that sophisticated, I guess, in the sense that it relies on the fact that
52:13you can manipulate software to decide what the vehicle is actually going to do at any given point
52:21while it's being operated. And so they were able to come up with a system that basically defeated
52:27the emissions control system when the car was actually in use. And that produced amazingly
52:36high fuel economy. It really is great in terms of making the cars operate much better than the
52:45norm that people expect, which is that the numbers that you see on the sticker are much better
52:51than what you achieve in the real world when you get a new car. In the case of these diesel
52:56vehicles, it was the opposite. People were getting better fuel economy. And so they were totally happy.
53:01And that was one of the reasons why we were concerned going into this enforcement action,
53:07is that the customers who had purchased these vehicles were going to say, wait a minute,
53:14what do we care? OK, so it may not be meeting its emission standards, but hey, we're getting
53:19great fuel economy. And so it was, I think, one of the things about this whole enforcement case that
53:27I'm happiest about in many ways is that we were able to succeed in keeping the support of the
53:34public behind us and saying, it's not OK to cheat on your smog test that you actually, this matters.
53:43Because that wasn't obvious at the beginning that that would be how it would all work out in the
53:49end. Anyway, it was a long negotiation, many meetings, changes in the company's team along
54:00the way. But of course, the thing that happened that's really the most amazing about this story
54:06is that after all the bad publicity and after all the money that they had to pay in penalties as
54:15damages, et cetera, the company transformed itself. And they really are a different company
54:22than they were when we first started down this path because their own government, which had been
54:30pretty lax, if not actually encouraging of Volkswagen's attitudes, what they could get
54:38away with, came down hard on them. And their own leadership decided that if they were going to
54:44maintain their success and go on to survive as a global manufacturer, they were going to have to
54:53do something different. And they did. And they've turned themselves into now a competitor, a
55:00contender for one of the leading, if not the leading, manufacturer and marketer of zero
55:08emission vehicles in the world. So the audience will not know this, but I'll tell you anyway in
55:15Mary's talking about the negotiations, which were largely done at the Department of Justice,
55:20but there was never a time, there was never a time where either Mary was not sitting right with me
55:27or her general counsel was not sitting with me and would not have happened, would not have happened,
55:32not just without California, but without those individuals. But one of the issues that you put
55:37your finger on and your stamp is very clear in those, that old settlement that when Attorney
55:44General Loretta Lynch announced it, she announced it as the largest settlement of its type in the
55:48history of the government, was zero emission vehicles, promoting zero emission vehicles,
55:56not just in California, but across the nation. Have you seen that play out locally? Have you
56:01seen that as being a beneficial issue, that settlement aspect of it? Absolutely. Shortly
56:08after we settled the cases, Volkswagen spun off a company that was created to comply with the
56:20settlement. And they were under an obligation to file a plan that showed exactly how they were
56:27going to achieve the levels of investment that the agreement called for. And it started off,
56:37I suppose, a little bit shaky, but pretty quickly developed into a relationship where
56:46people in California at the local level, within the city of Sacramento, within the legislature,
56:52understood that we were going to be the recipients of the largest investment ever
56:59in vehicle electrification, and that this was a rare opportunity to accomplish something that
57:06California had been trying to do for years. And so people came up with all kinds of
57:13ideas and suggestions and matching funds and programs to assist in the effort to really
57:23make this place a leader in electric transportation. And it's built from there.
57:31So to our EarthX audience, I hope you now appreciate why I started out telling you that
57:36this is a great honor for me to talk with and present questions to a hero of mine,
57:44to the people who put this together, Trammell Crowe and Bruce Fogarty and Jeff Simmons and
57:49others, thank you for giving us the chance to show to you, the Queen of Green, to show you
57:56the most influential environmental regulator in history, my friend, somebody I deeply admire,
58:02Mary Nichols. Mary, thank you so much for being our person today. Thanks so much.