Initiative Watch: The Polluter Accountability Act

Joe Caves -- The Brains Behind the Polluter Accountability Act

California’s Legislature did manage last year to stanch some of the state’s initiative craziness when it passed a law mandating that all initiative appear on the general election ballot, not the primary ballot.  Now, our ballot “pamphlets” won’t resemble a phone book every election.  (The fact that general elections get higher turnout, and thus tend to favor Democrats, was I’m sure totally and completely coincidental).

But that also means that we’ll get a real walloping of them come November, and one just submitted figures to set up a real battle royal: the Polluter Accountability Act.  The PAA is simple: it allows the Legislature to enact fees on polluters by a simple majority.  It thus overturns in part last year’s Proposition 26, which requires a 2/3 vote for all such fees.

State progressives — and particularly the environmental community — were completely outworked and outthought by Proposition 26’s proponents, because they were so focused on Proposition 23, which would have repealed California’s landmark climate change law.  The No on 26 campaign was poorly run, and the celebrations over the defeat of 23 were accompanied by thoughts of, “one more victory like this and we shall all be lost.”

Whatever happens with the PAA, though, its backers will not be out-strategized: the initiative’s chief proponent is Joe Caves, one of the savviest political operators in the state.  Caves’ Conservation Strategy Group is the nerve center for environmental politics in the state capital.  But they will probably be out-spent: look for oil and gas companies, and really any industry that pollutes, to throw hundreds of millions of dollars into the “No” campaign.  Also look for the state’s Chamber of Commerce, which despite its name is no more than a shill for right-wing agitprop, to label the initiative a “job-killer.”  On the other hand, not only will the state’s environmental movement back the measure, but so will a wide variety of other interests, who will see that the money potentially raised by the measure could backfill the state budget.  I wouldn’t be surprised to see big players like producer Steve Bing also get involved.

One interesting legal question will arise if the PAA passes: it specifies that any fees collected will be

used solely to mitigate the actual or anticipated adverse impacts of the activities subject to the fees, penalties or charges including reasonable enforcement costs and costs to reduce or prevent future impacts from the pollution or activity subject to the fees, penalties or charges.  

Thus, the key question is: what will count as mitigation?  What if the Legislature enacts a “fossil fuel fee” and uses it for public transit?  (Expect commercials about how the Legislature wants to raise your taxes to pay for high-speed rail.).  If future impacts of climate change will affect water supply, will the fees be able to be used for underground water storage?  If higher densities could reduce future climate impacts, can it be used for higher-density afforable housing?

But that’s getting ahead of ourselves.  First, the thing has to win.  We’ll outsource the next few months’ politics to Bette Davis:


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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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