The History of the California Environmental Protection Agency

The Long Winding Road to Cal/EPA

Californians have long been proud of their commitment to protecting the environment. In virtually all program areas, California has led the nation and created environmental quality statutes and programs that often have served as models at the national level.

In the 1950s, California established the nation’s first air quality program, passed the first comprehensive clean air act, and in 1988 passed an amended California Clean Air Act that subsequently served as the basis for much of what Congress later enacted in the federal Clean Air Act Amendments of 1990. California pioneered advances in vehicle emission controls, air toxics, and control of stationary sources before federal efforts in these areas. The Porter-Cologne Act - the basis of the state’s water quality program - served as the model for the federal Clean Water Act. In other program areas (often referred to as "media" in the profession) - especially recycling under the Integrated Waste Management Act and the public disclosure requirements of Proposition 65 - there are no comparable federal structures to this day.

Cal/EPA Secretary Winston Hickox reviewed how key individuals have played pivotal parts in California’s environmental progress, but Californians as a whole have charted the course, "These things are much broader than one person or even a group of people. I recently wrote to Senator Byron Sher to offer my congratulations that we are close to meeting the objective that he set (when he was an Assembly Member) for the people of California: that we divert 50% of our waste stream from landfills. We are not quite at 50% but, we are substantially there and it’s because of visionary people like Senator Sher that things are different than they might have been.

"The waste issue is just one that we take for granted. There are other issues we Californians have had to deal with. If air pollution had not begun to be addressed as a serious health concern and progress hadn’t been made, Blade Runner would have been more the reality here in the 21st century than I think many of us would care to believe. I think that the issues that are obvious to the senses, like air pollution and water pollution, demand action and it is way beyond any individual, governor, secretary or any single group of people.

"It is ‘us’, as a society that express ourselves and draw the lines in terms of our preferences. Our area is so beautiful and so deserving of preservation that it leads us to protect the coast in a variety of ways: water quality, waste disposal, trash and air pollution as well. There were trends driving us into a damaged environment, but I think the people of California never would have let it happen."

Despite the state’s environmental programs and laws, the creation of a cabinet-level environmental quality agency in California lagged for more than two decades while virtually every other state in the nation established organizations to mirror the programs and missions of the U.S. Environmental Protection Agency. Throughout this period, considerable support existed for creating an environmental quality agency. Three governors chose to create such a post through administrative means. However, formal establishment of a Cal/EPA continued to run up against the same basic questions at each attempt:

• Which programs should be included in the agency?
• How should the agency be established - by legislation or by the governor’s reorganization authority?
• What form should the agency take on, and what authority should the secretary have over the constituent programs?

The process of creating an "EPA" in California was made more difficult by the basic nature of how the state’s individual programs developed. In virtually every other state, the environmental quality programs are housed at the state level in organizations looking very similar to the U.S. Environmental Protection.

California’s environmental evolution took a different path. In almost all policy areas, the programs were created first through state statute focused on a single environmental medium. Both legislative and interest group commitments impacted these individual agencies at the expense of environmental programs, creating an institutional interest in maintaining the organizations just as they were first created.

Another layer was added by California’s tradition of strong local rule. Unlike most states, California’s environmental programs are actually implemented through a large number of local and regional agencies. While some form of reporting or appeal authority exists to the state agencies, these local environmental programs, housed in various offices throughout the state, are responsible for much of the permitting, inspection, and enforcement performed elsewhere by single state agencies.

Taken together, these trends in California combined to spread responsibility for environmental quality throughout both state and local governments. The individual programs have, at various times, resided in bodies as diverse as the departments and commissions of the Resources Agency, Department of Food and Agriculture, Trade & Commerce Agency, Department of Health Services, Energy Commission, Department of Consumer Affairs, Office of Planning & Research, Office of Emergency Services, State Fire Marshal, CalTrans, California Highway Patrol, air districts, county agriculture commissioners, local environmental departments, public works departments, and fire chiefs. The challenge has always been to create a more unified voice for environmental protection through a California Environmental Protection Agency.

Governor Pat Brown

The concept of California’s current agency structure itself does not have that long a history. The agency structure stems from 1961 when California undertook its first -  and to date, only - comprehensive reform of the state’s executive branch since 1929. Previously, the state organization was dominated by an ever-increasing number of departments, boards, and commissions. Under Governor Pat Brown, the special Committee on Organization of State Government recommended creation of the current agency structure to resolve the following concerns:

A. The governorship in California has been weakened by diffusion of authority.

B. Department directors and boards and commissions are unable to communicate to the governor.

C. Departments, boards, and commissions do not have adequate communication with each other.

D. The governor lacks an effective means for the formulation and execution of unified policies.

E. There is not enough high-level attention to program planning and evaluation.

In response to this report, four new agencies - Highway Transportation, Health and Welfare, Youth and Adult Corrections, and Resources - were created through legislation. In a move that would become familiar throughout the development history of Cal/EPA, Governor Pat Brown also created an additional four agencies through administrative order. Although the role of the agencies was subsequently de-emphasized in favor of the departments during the administration of Governor Ronald Reagan, the basic structure remained in place and continues to this day.

Following the executive branch reorganization in 1961, most of the environmental quality programs existing at that time were placed within the Resources Agency along with the traditional natural resources departments and commissions.

California’s commitment to the environment continued to be shown in the following years in the addition of new responsibilities to these programs along with the creation of new environmental quality functions in other state and local agencies.

Spurred by a growing national interest in environmental protection following the Santa Barbara Channel oil spill, Congress proceeded to enact a series of new environmental laws, eventually leading to the 10 comprehensive statutes now administered through the U.S. Environmental Protection Agency. The Agency itself was created through President Nixon’s Reorganization Plan #3 of 1970, leading to efforts in all states including California to develop comparable organizations.

Governor Jerry Brown

Following some 10 years of earlier efforts at reorganizations involving the Air Resources Board, Water Resources Control Board, Regional Boards and the Solid Waste Management Board, the creation of a new California Environmental Quality Agency was among the first proposals of the new Administration of Governor Jerry Brown. This effort was first begun through the administrative creation of a new office of the Special Assistant to the Governor for Environmental Protection. The position added a new responsibility to the existing Chair of the Air Resources Board, and the office was staffed by temporary reassignments from the Air and Water Boards.

Current Cal/EPA Secretary Winston H. Hickox served as Deputy Secretary for Environmental Affairs in those early days and recalls how energy was a major policy concern back then, "That era created a whole new emphasis on conservation and a whole new impetus to conserve. That was the birth of efficiency standards for appliances and buildings. The state led this country into a new era. And it is in great part why today we are, on a per capita basis, the second most energy efficient state in the nation. I think, in 2001, we are going to once again stand tall and show just what we can do when it comes time to conserve because we need to do it."

The actual proposal for the Environmental Quality Agency was submitted to the Little Hoover Commission on March 11, 1975 under the governor’s reorganization authority. In this Reorganization Plan No. 1 of 1975, the new Agency was proposed to consist of the following program components:

• The State Water Resources Control Board and Regional Water Quality Control Boards were proposed to be transferred from the Resources Agency to the new Agency intact.
• The State Air Resources Board, then under the Resources Agency, was proposed to be abolished. The responsibilities for establishing the state ambient air quality standards and vehicle emission standards were proposed to be transferred to a new Air Quality Standards Board. The other duties, powers, and responsibilities of the Air Board were proposed to transfer to a new Department of Air Quality. The only new function added to the Agency was the addition of the vehicle emission inspection program from the Bureau of Automotive Repair, which was proposed to transfer to the new Air Quality Department.
• The Solid Waste Management Board, then also under the Resources Agency, was similarly proposed to be abolished, and split between a new Solid Waste Management Board and Department of Solid Waste Management.

The Legislative debate centered on several issues. Many of these were to be repeated as the agency concept was revisited in subsequent Administrations:

• The use of the reorganization process is always controversial. On one hand, governors tend to prefer this tool as it provides more control over the process and allows for needed reorganizations to take place more quickly. Interest groups on all sides of an issue may also prefer this approach as it makes no changes in the underlying authorities. On the other hand, the role of the Legislature is lessened. They are presented with the simple choice of vetoing or allowing a plan to take effect, with no ability to require or even negotiate changes within the reorganization timeline.
• Another major issue was proposed changes from a board to a department structure for major functions in the air and solid waste programs. Concerns revolved around the potential influence of the secretary and governor over activities of previously independent boards. Counter balancing these concerns were the intended goals of the plan to ensure more accountability within the programs and coordination with the other environmental decision making process.
• The plan was also attacked as shifting functions without making basic changes to address specific problems. This charge reflected the nature of the reorganization process, namely that functions could only be moved and not changed. However, the proposal was perceived as limited and not including other relevant programs, such as the pesticide program whose transfer was then strongly opposed by the agriculture sector.
• One of the statutory criteria for a reorganization plan is the potential for cost savings to state government. In this respect, the plan was criticized as only "adding a new layer of government." The original concept of California’s Cabinet Agency structure was described by the Little Hoover Commission as: Experience to date indicates that the agencies and the agency administrators are not providing just another level of government but rather a missing level.
• The proposed Agency would have been the smallest agency within state government. At the time, the Legislative Analyst questioned the rationale for separating so few programs (i.e., the proposed agency would have had a budget of $65 million and 864 PY, as opposed to the total Resources Agency budget in 1974 of $517 million and 11,427 PY).
• Finally, the Legislature expressed concerns on the potential of the secretary to draw on the resources of the Agency’s boards and departments. While this theme would continue in subsequent proposals for an environmental agency, the reorganization plan in this case contained specific language giving the secretary authority to expend any money appropriated for the constituent boards and departments of the new agency.

Following a rocky reception in the Legislature, the reorganization plan was defeated. However, the post of secretary was created administratively by Governor Brown through Executive Order B2-75. Then Chair of the Air Resources Board, Tom Quinn, was appointed as the first Cabinet-level Secretary of Environmental Affairs. Following his departure, Mary Nichols subsequently served in this post for the remainder of the Brown Administration.

While the reorganization plan was defeated, subsequent legislation confirmed the new dual role for the Air Board Chair. In 1981 legislation was passed stating that the Air Board Chair: . . . shall serve as the principal advisor to the governor on, and shall assist the governor in establishing, major policy and program matters on environmental protection. The chairperson shall also serve as the principal communications link for the effective transmission of policy problems and decisions to the governor relating to the activities of the State Water Resources Control Board and the State Solid Waste Management Board.

Governor Deukmejian

The Environmental Affairs Agency continued in form and expanded to some extent in function under the Deukmejian Administration. Environmental issues in general were becoming more prominent during this period, particularly in areas of drinking water contamination, toxics, and air quality. A continuing need for a Cabinet-level voice on these issues was recognized. Governor George Deukmejian was committed to reducing the growth in government, and generally did not support proposals formally increasing the number of state agencies.

While several proposals to establish the agency in statute were considered during this Administration, none were submitted to the Legislature.

Nonetheless, the Agency increased its presence within State government during the Deukmejian years. The mandate for the Environmental Affairs Agency was renewed early through a memo from the Governor’s Office reaffirming the role of the Secretary for Environmental Affairs, which in part:

• Continued the role of the Chair of the Air Resources Board as a Cabinet-level Secretary of Environmental Affairs as specified in Executive Order B2-75.
• Gave the secretary budgetary and policy coordination responsibilities for the Air Resources Board, Solid Waste Management Board, State Water Resources Control Board, and the Regional Water Quality Control Boards.
• Included the provision that the constituent boards were to "make available such facilities and personnel" necessary for the secretary to perform his duties.

While Environmental Affairs was not formally created in statute, a number of bills during this period began to cite the Agency as functions were added to the secretary’s office. In particular, staffing was provided through a number of sources to conduct several functions providing a more Agency-wide level of activities and that did not fit in neatly with the media-specific boards:

• The secretary also served as the Governor’s Outer Continental Shelf (OCS) Policy Advisor, a function first created administratively but subsequently established in statute. Primarily dealing with the state’s review of offshore oil and gas proposals, a separate Office of Offshore Development was provided with staff from the Governor’s Office of Planning and Research, and served as the bulk of the secretary’s staff.
• Technical staff were added for the hazardous waste management database, environmental assessors program, and an arbitration panel for toxic site clean-ups.
• The secretary also administered two offshore oil and gas mitigation programs, providing grants to coastal counties and cities, and to the commercial fishing industry.

While the Secretary of Environmental Affairs remained on par with the other state agencies, the nature of the Agency and the process by which it was established meant that it was not as big and the expectations for its mission were not as clear:

• While designated a Cabinet officer, the secretary also remained as Chair of the Air Resources Board.
• This dual role also continued to place conflicting time demands on the secretary. Combined with limited Agency-specific resources, this situation limited the range of issues the Agency was able to address. As a result, compared to other state agencies, the Secretary of Environmental Affairs was forced to concentrate on the larger issues affecting all three boards and on cross-media issues involving regulatory relationships between the three boards.

While no action occurred to establish the Agency formally in statute during this period, there was considerable activity revamping and improving the scope of the individual environmental programs.

Major state legislation from this period includes: the California Clean Air Act, Integrated Waste Management Act, Beverage Container Recycling and Litter Reduction Act, Oil Spill Prevention and Response Act, Proposition 65, Drinking Water Well Protection Act, Underground Storage Tank Laws of 1983, Toxic Pits Cleanup Act, Hazardous Waste Management Act, and Hazardous Waste Source Reduction and Management Review Act. These and other additions to the environmental programs continued to increase the need for a coordinating environmental agency.

Governor Wilson

In the gubernatorial election of 1990, both candidates committed to creation of a state environmental protection agency. Environmental issues were a key element in the campaign, spurred in part by the presence on the ballot of the "Big Green" initiative - a collection of various measures supported by a coalition of environmental groups, including establishment of a cabinet level agency.

Shortly after taking office, Governor Pete Wilson confirmed the need for a Cabinet environmental quality secretary by issuing Executive Order W-5-91. This action began the process fulfilling a commitment he first made in early 1990 at a speech to Heal the Bay in Santa Monica. The executive order continued coordination of the programs formerly under the Environmental Affairs Agency, but changed the name of the post to Secretary for Environmental Protection and for the first time created the position separate from the Chair of the Air Resources Board. Support for the new office was provided through facilities and personnel from the constituent boards. James Strock was appointed as the first Secretary for Environmental Protection and continued to serve in this post through most of the Wilson Administration. Peter Rooney succeeded him in the post.

The subsequent proposal for Cal/EPA was again through the governor’s reorganization authority. Submitted to the Little Hoover Commission on April 16, 1991, Governor’s Reorganization Plan Number 1 of 1991 (GRP 1) proposed a Cal/EPA composed of the following programs:

• Office of the Secretary for Environmental Protection, which was reorganized by transferring the program line functions built up under the former Office of Environmental Affairs to the Resources Agency and to the new Toxics Department.
• The Air Resources Board.
• The Integrated Waste Management Board.
• The State Water Resources Control Board and Regional Water Quality Control Boards.
• The Department of Toxic Substances Control, created by transferring the former division from the Department of Health Services.
• The Department of Pesticide Regulation, created by transferring the former Pesticide Regulation program from the Department of Food and Agriculture.
• The Office of Environmental Health Hazard Assessment, created by transferring the environmental components of the Health Hazard Assessment Division of the Department of Health Services and reorganizing the remaining human health risk assessment functions within that Department.

The purposes of the new Agency were spelled out in six primary and four secondary objectives:

• Our most urgent attention must be turned toward those activities, processes and substances presenting the greatest risk to public health and the environment.
• Decisions to set risk-based priorities must be based on rigorous and internally consistent science, at the level widely recognized to be the best available.
• We must act to prevent the creation of pollution in the first instance...
• Environmental protection and economic progress should not be viewed as competing goals, but, to the greatest possible extent, as complementary...
• Vigorous, predictable enforcement must under gird all of our efforts...
• The regulatory decision making process must be opened as far as possible to the public as a whole...
• Create a point of accountability for state environmental programs.
• Assure that this is a Cabinet-level voice for environmental protection across the gamut of issues raised for the governor’s consideration and decision.
• Allow for more rapid deployment of coordinated government action to meet environmental needs.
• Lead to the reduction of overlapping and redundant bureaucracies which create more confusion than environmental improvement.

Legislation was introduced by Senator Art Torres (Senate Bill 51) and then-Assemblyman Byron Sher (Assembly Bill 1122) containing their proposals for Cal/EPA. This interplay between the reorganization and legislative processes become a focal point for debate on the Agency and its proper functions in the subsequent two years.

Many of the same concerns that had hindered earlier reorganization efforts quickly arose as the review process began, particularly those related to the potential costs and benefits of the new Agency and Legislative discomfort with use of the reorganization authority. In addition, this particular plan generated several new issues related to the broader scope of the proposed Agency. Many of these are summarized in the Little Hoover Commission review of the reorganization proposal:

• The structure for assessing and managing risk. A debate quickly developed around the new Office of Environmental Health Hazard Assessment. The concentration of risk assessment in the new office was intended to keep the scientific process of risk assessment separate from the economic and technical considerations of risk management, as previously recommended by the National Academy of Sciences in its report, Risk Assessment in the Federal Government: Managing the Process. This proposal was criticized on several factors, including: perceptions of whether the scientists would be provided the leeway for independent risk assessments; if the benefits of separation outweighed the loss of management oversight integrating the priorities of risk assessments with the regulatory needs and feedback from risk managers; and the fact that OEHHA did not include the risk assessment functions from the new Pesticides and Toxics departments. Many of these debates continue to this day.
• Placement of pesticide regulation in the new agency. Agriculture remained split on this proposal throughout the review process. Some in the industry continued to believe that the program should remain with the Department of Food and Agriculture to ensure that regulatory decisions took adequate account of the economic and social factors related to pesticide and other chemical uses. The concern continued that movement of the program to Cal/EPA would revamp the program focus to one solely devoted to eliminating potential paths of pollution.

While some agricultural groups remained opposed to the proposal, the industry as whole can be best described as "reluctantly accepting" the new Agency due to three factors.

First, the final proposal provided for continued interaction between the new Department and the Department of Food and Agriculture, to ensure continued consideration to timing factors on registration issues that are often driven by growing season, weather changes, and unexpected infestations.

Second, several key players, notably the current Secretary of State Bill Jones, worked diligently to communicate with the industry and help address their concerns in how the Agency would proceed.

Third, many agricultural groups were concerned that the far more draconian pesticide measures of the recently-defeated "Big Green" initiative would be resurrected in a future initiative in the absence of the changes being proposed to the program by Governor Wilson.

• The potential for "one-stop shopping" for those who are being regulated. The new Agency was to provide a single point of accountability and more unified administration of the environmental laws. While the reorganization plan contained few specifics, subsequent administrative and legislative actions by both the Wilson and Davis Administrations created more coordination among program elements.
• The inclusion of other programs in Cal/EPA. In developing the reorganization proposal, a number of other environmental quality and related programs throughout state government were considered for inclusion, but the decision came down to include only the core environmental programs and those that could be transferred largely as intact entities. The issue of which programs belonged in the new Agency continued throughout the review process, however, and the Little Hoover Commission subsequently recommended consideration of several other programs as the Agency evolved. As part of the reorganization plan, the Agency committed to a process of "rolling reorganization," beginning with the core programs but proposing additional reorganizations as they became justified. Subsequent actions on the programs identified by the Little Hoover Commission include the following:
• Department of Conservation’s Division of Recycling. Later in the Wilson Administration, legislative proposals were submitted twice to combine this program with the Integrated Waste Management Board programs. Both efforts failed passage in the Legislature.
• Department of Health Service’s Radioactive Materials Program. This program remained in Health Services primarily due to the controversy over the Ward Valley low-level radioactive waste disposal site and the need to maintain continuity in the administrative oversight of that project’s development.
• State Fire Marshal’s Hazardous Liquid Pipelines Program. This program along with the other State Fire Marshal functions were subsequently reorganized and combined with the Department of Forestry.
• Department of Health Service’s Office of Drinking Water. An initial proposal was made in later years through the Budget process, but no action was taken by the Legislature.
• Office of Emergency Service’s Hazardous Materials Management Program. This program, along with related hazardous materials programs under the State Fire Marshal and State Water Resources Control Board, were reorganized into the Certified Unified Program Agencies (CUPAs). Administered by the Secretary for Environmental Protection, this program consolidated the hazardous materials programs at the local level.
• Department of Fish and Game’s Office of Oil Spill Prevention and Response. With the transfer of Environmental Affairs’ former responsibilities for Outer Continental Shelf issues to Resources Agency, this program was considered more appropriate to remain within the Department.
• Bureau of Automotive Repair’s Smog Check Certification Program. Some consideration was given to moving this program, but subsequent changes to the Smog Check Program instead removed much of the prior overlap between the Bureau and the Air Resources Board.
• Department of Health Service’s Hazardous Materials Lab. This program was later incorporated into the Department of Toxic Substances Control through the Budget process.

Support for the proposal remained mixed. The agriculture industry was split. In the environmental community, some groups, such as Environmental Defense Fund, supported the concept from the beginning; others, such as Planning and Conservation League, became active in support only during the final critical days in the Legislature; and others opposed the process to the end. Other interest groups similarly split along lines of those who preferred the regulatory system they knew, and those who supported more of a "one stop" concept for regulatory decisions.

Days before the expiration of the 60-day review period, an incident occurred which demonstrated the value of the Agency. On July 14, 1991, a freight train derailed at Dunsmuir near Redding, and released thousands of gallons of metam sodium into the Sacramento River. The Secretary for Environmental Protection took the lead in responding to this disaster, and marshaled the resources of the environmental agencies needed to deal with the water quality, air quality, toxics, and disposal consequences of the spill. This quick response influenced the public debate through a clear demonstration of the need for a state environmental agency.

The final day for Legislation action on GRP 1 also fell on the last day for action on the 1991-92 Budget. With the debate extending into the evening hours, the Senate eventually adjourned without acting on the plan. In the Assembly, however, the resolution disapproving GRP 1 continued to move forward, but failed on a vote of 43 to 14. As a result, GRP 1 went into effect, and the new California Environmental Protection Agency was born on July 17, 1991.

Governor Davis

With the appointment of Winston Hickox as his Secretary for Environmental Protection, Governor Gray Davis cemented Cal/EPA as an ongoing function within state government.

The Agency’s efforts to improve our environment while assisting our neighbors have paid dividends in the form of agreements with the governments of Mexico, Baja California and some of its cities. The March 2001 visit of President Vicente Fox to Governor Gray Davis was marked by the signing of agreements to cooperate on northern Mexico’s first smog check program; industrial wastewater monitoring and treatment in three border cities and research and sustainable development in the Sea of Cortez area.

Other examples of reaching across divided jurisdictions include two units within Cal/EPA inaugurating an effort to tackle the 21 st century problem of e-waste (computer monitors and other electronic discards), concentrating efforts on environmental justice, dealing with previous policies on MTBE in gasoline, cleaning up Brownfields and one of Cal/EPA’s offices initiating an assessment of the potential hazards of hexavalent chromium in drinking water. That effort is in cooperation with the University of California and the Department of Health Services.

The Davis Administration also provides the opportunity for further growth in developing the necessary coordinating relationships between the individual program elements. With the notable move of the boards and departments into a single building, the opportunity now exists more than at any other time in the development of the Agency to foster the necessary interactions and achieve the goal begun some 30 years ago to ensure an effective and truly coordinated environmental program in California.

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