Pacific Swell | Southern California environment news and trends

Legal experts disagree on Prop 26's effect on AB 32

Will Prop 26 make it difficult to enforce regulations under AB 32? That’s been the fear of many environmentalists since the initiative passed on Tuesday. After all, AB 32 — California’s landmark global warming law — will require tough new regulations to enforce, while Prop 26 — a successful initiative that will requires a two-thirds majority to impose fees that address “health, environmental, or other societal or economic concerns” — makes passing new regulations tough, to say the least.

But according to environmental nonprofit National Resources Defense Council’s Western Energy and Climate Projects legal director Kristin Eberhard, the answer is no. In a post boldly titled “Proposition 26 will not stop AB 32” on NRDC’s Switchboard blog, Kristin explains why AB 32 will be affected by Prop 26 “not at all”:

Proposition 26 redraws the line between taxes and fees under California law. It states that it applies to “any change in state statute” that occurs after January 1, 2010. The Legislature passed AB 32 and the Governor signed it into law in 2006, well before Proposition 26 comes into effect. Although AB 32 implementation is ongoing, CARB’s authority to impose fees on polluters under AB 32 will not require “any change in state statute” post January 1, 2010. Accordingly, Proposition 26 does not change CARB’s authority to move forward with implementing AB 32.

Kristin’s interpretation of Prop 26 assumes that regulations intended to enforce AB 32 will fall under AB 32′s umbrella instead of being considered a new state statute. That interpretation’s quite unlike the interpretations of environmental groups that campaigned against Prop 26, calling the measure “Prop. 23’s evil twin,” “a sneak attack,” and “the most dangerous measure you haven’t heard about,” according to the LA Times. In fact, NY Times reported that “an analysis released last week by the law school at University of California, Los Angeles, found that Prop 26 could ‘erect significant barriers’ to many environmental programs in California, including A.B. 32.”

Clearly, Kristin’s interpretation’s much bolder than those of other green legal experts, like Daniel Firger, associate director of the Columbia Center for Climate Change Law, who assumes new taxes intended to enforce AB 32 will be considered new state statutes. In Grist, Daniel writes that we can’t know yet what effect Prop 23 will have on AB 32 because much “depends on how Prop 26 is ultimately interpreted by the California courts”:

This is because Proposition 26 defines “tax” broadly, as “any levy, charge, or exaction of any kind imposed by the State.” The definition admits few exceptions…. Such narrow exceptions may make a GHG emissions permitting regime under AB 32 more difficult to impose, because the requirement for utilities and refineries to hold emissions allowances could be considered a tax within the meaning of Prop 26.

Which interpretation do you find more convincing?