CALIFORNIA:

Little-noticed Prop 26 squeaks through in dead of night

The same California voters who rejected a proposition yesterday that would have suspended the state's climate change law also approved a separate ballot referendum that could undermine how cuts in greenhouse gas emissions are implemented by changing the definition of environmental fees.

Proposition 26, which passed officially early this morning, will tighten how the state constitution defines taxes and regulatory fees. It has been called the "evil twin" of Proposition 23 by environmental activists who fear it would inhibit the state's ability to regulate carbon emissions.

Proposition 23 would have delayed the state's climate law, A.B. 32, until unemployment dropped to 5.5 percent for a full year. The measure was roundly rejected, with more than 60 percent of the electorate voting against it (ClimateWire, Nov. 3).

But the same voters either did not see a connection between Prop 26 and climate policy or did not care. They voted to approve Prop 26, which will require a two-thirds supermajority vote in the state Legislature for many fees and new taxes.

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 (Greenwire, Oct. 27). This despite claims by the "Yes on 26" campaign (and supporters like Chevron Corp.) that the measure would simply make it more difficult to increase taxes.

Political analysts reached last night as election results were coming in said a victory for Prop 26 could mean not only confusion at the local level, where governments rely on fees to regulate business, but also a broader paralysis in the state Legislature and among state regulators.

"It will make environmental regulation more difficult in many areas -- not just climate change -- as its reach is quite broad," said Louise Bedsworth, a research fellow at the Public Policy Institute of California. "Fees are an important funding source for environmental programs. I am not sure what it says about voters or the public and their support for climate change per se, but it could certainly make implementation and funding of climate change programs much more difficult."

Jon Costantino, a senior adviser at Manatt, Phelps & Phillips in Sacramento and a former climate official at the California Air Resources Board, said the vote sends a mixed signal.

"Uncertainty is always a problem for businesses, and that's exactly what these split results have brought to both traditional industry and the clean technology sector," Costantino wrote in an e-mail. "This uncertainty leaves California businesses without clear direction on how to move forward with reducing their greenhouse gas emissions and/or what the regulatory future holds in this area."

Jack Pitney, a politics professor at Claremont McKenna College, said Prop 26 passed simply "because people saw it as a way to limit how much money the government takes from them." He doubts they saw much beyond that because of its technical nature.

"It takes a two-thirds vote of the legislature to raise taxes, and people thought the same idea should apply to fees," Pitney said.

Others predicted the result would lead to a court fight, given the arguable disparity between rejecting Prop 23 while approving Prop 26.

Shaun Bowler, a political scientist at University of California, Riverside, said odd voting patterns often spark lawsuits, and referenda have been thrown out as a consequence.

"Prop 26 will end up in court," predicted Bowler, who said it is poorly worded and fails to clearly define "fee."

"You can always try to litigate [ballot measures] out of being implemented," he added. "That's likely going to happen here."

Sullivan reported from San Francisco.