Prop 26 would endanger many core enviro laws -- UCLA law center

A California ballot measure that seeks to tighten how the state constitution defines taxes and regulatory fees has been branded a threat to the state's ability to regulate everything from climate change to lead in paint by lawyers at the University of California, Los Angeles.

A study out yesterday from UCLA's School of Law said the referendum -- Proposition 26 -- would fundamentally hinder California's ability to assess environmental fees on polluters of all kinds if it passes next week.

The report argues that Prop 26 would "erect significant barriers to funding many environmental protection programs and public health programs in California" because it would require a two-thirds supermajority vote in the state Legislature to enact new taxes and many fees.

The assessment counters an analysis put forward by advocates of the measure who say their proposition would exempt environmental rules as long as penalties or fees are used for the purposes they are intended to regulate (Greenwire, Oct. 20). The "Yes on 26" campaign has been citing a study by a former general counsel at the California EPA, Maureen Gorsen, that denies the referendum would apply to "legitimate fees" that protect the environment.

UCLA lawyers beg to differ. They claim the measure would reach further into the state's books and affect a number of laws, among them a green chemistry initiative, the state's climate measure, two statutes blocking chemical products in landfills and longstanding rules on lead.


"Proposition 26 would change a basic principle of state law allowing government to charge polluters upfront fees for the external costs they impose on the public, such as health risks and environmental harms," the report said.

The lawyers from UCLA's Emmett Center on Climate Change and the Environment and Evan Frankel Environmental Law and Policy Program go on to assert that a law passed in 1991 to address childhood lead poisoning with a fee imposed on manufacturers would not stand up to legal scrutiny if Prop 26 passes Tuesday.

The fee is used to pay for for community health programs, like lead screenings, designed to detect and treat children suffering from lead poisoning. It was challenged as an unlawful tax, but the California Supreme Court held that the fee was a valid regulatory fee and not a tax.

"In our view, this lead-paint fee would have been struck down as an impermissible tax under Proposition 26's restrictions," the UCLA study said. "It is certainly a state exaction, and it does not appear to fall into any of the proposition's enumerated exceptions."

Prop 26 has drawn attention from environmental groups in the final days of this year's campaign partly because of the contributors behind it. Yes on 26 has received multimillion-dollar contributions from the likes of the California Chamber of Commerce, Chevron Corp., Philip Morris USA Inc. and Anheuser-Busch Cos. Inc. Also contributing are ConocoPhillips and Occidental Petroleum Corp.

The Yes on 26 campaign did not respond yesterday when asked for specific comment on the study.

Click here to view the UCLA report.

Sullivan reported from San Francisco.

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