Proposition 26 will not stop AB 32

CARB Chair: “Prop 26 does not impair the scoping plan adopted in 2008 or any regulations developed under that plan. AB 32 is on track.”

Some commenters were worried that California proposition 26 would somehow vitiate the overwhelming win on killing Prop 23, which preserved California’s landmark climate and clean energy bill.  I was on a press call where Mary Nichols, Chair of the California Air Resources Board, explained to reporters that it would not.

Kristin Eberhard, Legal Director for NRDC’s Western Energy and Climate Projects in Santa Monica, has a good post on the subject that I will reprint below:

California voters gave AB 32 and clean energy a strong vote of confidence last Tuesday by resoundingly rejecting Proposition 23. Close to 4.5 million people voted against Proposition 23 – more than voted for or against any other item on the ballot. No on 23 got more votes than the winning candidates for governor or US Senate or Chief Justice of the State Supreme Court (who was unopposed). Even counties that voted for Republican candidates voted against Proposition 23, including Butte County, home to the initiative’s author, Assemblyman Dan Logue from Chico. Proposition 23’s defeat was an undeniable victory for environmental and public health advocates and clean energy proponents.

However, the lesser-known and poorly understood Proposition 26 squeaked by under the radar.  The measure’s vague language and broad sweep have led many to ask: how will it impact AB 32?

The answer: not at all.

Mary Nichols, Chair of the California Air Resources Board (CARB – the agency responsible for implementing AB 32) said this week that “Prop 26 does not impair the scoping plan adopted in 2008 or any regulations developed under that plan. AB 32 is on track…”

Here’s why:

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.

Propositions 23’s overwhelming defeat constitutes a clear mandate from California voters that they want the state to continue to take action on climate change and move towards a clean energy future. The unfortunate result on Proposition 26 does not change that.

That doesn’t mean that Proposition 26, a measure funded by oil, alcohol and tobacco interests, won’t threaten environmental, public health, and public safety programs across the state and make the budget even harder to balance. It will blow a $1 billion hole in the state budget immediately, and will cost the state General Fund $1 billion annually, according to the Legislative Analyst’s Office. Public transit agencies will likewise lose millions of dollars in expected funding.

Proposition 26 limits the funding and tools that will be available to hundreds of state programs including environmental, public, health, and public safety ones. Some examples of the types of programs and fees that will likely be impacted are:

  • Tobacco mitigation and deterrence fees
  • A fee imposed to mitigate the significant environmental impacts of a project
  • Road damage fees to mitigate damage to streets caused by heavy truck traffic and spills
  • Fees used to cover immunizations for children
  • Hazardous waste fees to support hazardous waste disposal
  • Fees that help reduce the burden on the 911 emergency system

These and other programs are critical for safeguarding our environment, and our health and safety.  They may now be subject to the same paralysis we have seen in the state budget process for the past several years.

Programs that are already underway, like AB 32, will continue apace.

— Kristin Eberhard


7 Responses to Proposition 26 will not stop AB 32

  1. Sasparilla says:

    Nice on Prop 26, we could use some (relatively) good news…

  2. Janhavi says:

    Great news- and thanks for answering the question, Joe!

  3. John Hollenberg says:

    Good news about the lack of effect on AB 32, although not good news for California otherwise.

  4. darth says:

    I was one of the worried ones – this is good to hear. Thanks for the update.

  5. Chris Winter says:

    KQED’s Craig Miller has a slightly less optimistic view of Prop 26:
    The Next Battle Front for AB 32
    November 3, 2010, 11:51 am • Posted by Craig Miller

    Links to a Google Map showing names, Locations and amounts of donors giving more than $100,000 for or against California Proposition 23.,-100.634766&spn=25.135533,57.568359&z=4

  6. Mike S. says:

    This is hopeful, but I respectfully disagree with Kristin. Prop 26 may be a major obstacle to local governments passing fees on fossil fuel burning and using those revenues to promote renewables and other climate programs. It may also lead to lawsuits that could delay auctioning permits under a C&T system. The Sinclair Paint “nexus” ruling was already a problem for the polluter pays principle in CA. The good news is that I think Jerry Brown understands this, and he is not beholden to special fossil interests. We will need his help to pass a law to reverse Prop 26 and maybe even Sinclair Paint, and make “polluter pays” a central part of 21st century California.