California’s cap-and-trade program likely can’t survive in its current form after 2020 without a two-thirds vote of the legislature to reauthorize it.  That’s because a central feature of the program involves auctioning allowances to pollute, which courts are likely to consider to be a “fee” that requires two-thirds approval of the legislature under 2010’s voter-approved Prop 26.

With that high hurdle, advocates have been scrambling to get the needed votes.  Despite having a Democratic super-majority in both houses of the legislature, a number of key Democrats are opposed to (or at least skeptical of) cap and trade, because they fear the program allows polluters to continue polluting disproportionately in “environmental justice” communities — predominantly low-income communities of color.

So advocates have had to seek a bipartisan two-thirds solution, which requires oil-and-gas industry support.  And that means major concessions to the fossil fuel industry.

But at the same time, the fossil fuel industry has lost leverage.  The passage last year of SB 32, to extend the greenhouse gas reduction goals from 2020 to 2030, and AB 197, which allows for direct command-and-control regulation of polluting facilities, has put their back against the proverbial wall.  And they recently lost their lawsuit challenging the legitimacy of the current auction mechanism.  Industry would rather have the more “flexible” cap-and-trade system now, where they can seek reductions in the most economically efficient manner.

So there are some industry concessions and some environmental wins in the apparent consensus bills unveiled on Monday.  First, AB 398 would officially extend the cap-and-trade program to 2030.  In a big win for industry, the legislation would prevent local air districts in California from imposing their own limits on greenhouse gas emissions from sources already covered under cap and trade.  As the San Francisco Chronicle describes, it would “effectively kill long-running efforts by Bay Area air quality regulators to place hard limits on emissions of carbon dioxide and other heat-trapping gases from local oil refineries.”

In another win for industry, the bill puts a ceiling on the price of allowances (permits to emit one metric ton of greenhouse gases under the cap). To date, allowance prices have typically hovered at or near the current price floor.  Consider the ceiling a gift to industry by giving them a maximum penalty they’d have to face for polluting.

But in a concession from industry, the bill would reduce the use of “offsets” (projects outside of the capped facilities that help reduce greenhouse gases) and require that half of them occur in California or have a direct environmental impact on the state.  The use of offsets weaken the sale of allowances by giving industry a cheaper out, so this is good news for the integrity of allowances.

Finally, the bill would prioritize the kind of state programs that could receive funding from the auction proceeds.  The money must first go to efforts to control toxic air pollution from mobile or stationary sources like factories and refineries, second to low-carbon transportation projects, and third to sustainable agriculture programs.

This last provision is potentially a mixed bag on impacts, since it doesn’t necessarily track the highest emitting sources.  But it may allow continued funding for high speed rail, which is on financial life support and at this point is only propped up by cap-and-trade proceeds.  The governor doesn’t want to see the project die, which was part of his motivation for getting the auction reauthorized.

Meanwhile, AB 167 is a must-pass companion bill would require stricter air pollution monitoring around industrial facilities and tougher penalties for violating pollution regulations.  This measure allows environmental justice advocates to claim some victory be securing the promise of direct emissions reductions from nearby polluters.

A number of environmental groups are not happy with the concessions, although the bill has received support from the likes of Environmental Defense Fund and tepidly from billionaire environmental activist Tom Steyer.

For my part, I think it’s an okay but not great deal.  It’s probably worth continuing the state’s cap-and-trade program, if nothing else to try to prove the concept in case it can be workable in other states and nationally.  And the auction proceeds provide some useful funding for everything from weatherization to transit to low-income housing.

Meanwhile, the state still retains a lot of authority over polluters via SB 32 and the state implementation of the Clean Air Act, and multiple complementary policies are still needed and remain in effect to reduce greenhouse gas emissions, such as the renewable energy, energy storage, energy efficiency, and electric vehicle mandates.

The vote could come as soon as Thursday, so stay tuned for the results.

UPDATE: The vote was just postponed to Monday, which could mean they’re having trouble getting the needed votes.