Court of Appeal Upholds State Air Resources Board Regulations Imposing Fees on Manufacturers

American Coatings Association v. State Air Resources Board
(2021) (Case No. C085042)

California Health and Safety Code section 39613 (the Code) requires the State Air Resources Board (the Board) to impose fees on manufacturers who sell consumer products and architectural coatings that emit volatile organic compounds (VOCs) of 250 tons or more per year.  To implement this statute, the Board adopted regulations (the Regulations) that impose a uniform fee on the covered manufacturers.  American Coatings Association, Inc. (the Association) filed a complaint for declaratory and injunctive relief and a petition for writ of mandate, challenging the constitutionality of the Code and the Board’s implementing Regulations.  The trial court denied the Association’s petition and complaint and, on April 12, 2021, the Court of Appeal for the Third District issued its decision (American Coatings Association, Inc. v. State Air Resources Board (2021) Case No. C085042) affirming the trial court’s judgment.

The Association’s petition sets forth various causes of action, including: (1) the Code and Regulations violate due process because the manufacturers pay more than their fair share under the fee; (2) the Code and Regulations violate equal protection by drawing an arbitrary classification between manufacturers; (3) the Code and Regulations violate Proposition 13 because the fees are actually taxes; (4) the Code is an unconstitutional delegation of legislative power to the Board; and (5) the fees violate due process and equal protection because the fees are arbitrary and capricious and do not relate to any reasonable legislative goal.  Ultimately, the Court held the Association failed to meet its burden to show the fees were unreasonable; the Code was not an unlawful delegation of power; and the Code did not violate due process or equal protection laws.

Proposition 13 requires any change in a state tax to be passed by a two-thirds majority of the Legislature.  Thus, if the fee imposed by the Regulations were a tax, it would be illegal because the Regulations were not passed by a two-third Legislative majority.  Whether the Regulations constitute a tax is a question of law, which the Court decided under an independent standard of review.  Although the distinction between a fee and a tax is “frequently blurred,” the Court considers whether the fees would exceed the cost of administering the permit program, whether the fees generate excess revenue, and whether any class of fee payers is shouldering too large a portion of the associated regulatory costs.  In this case, the Court found there was no evidence that the funds were spent for purposes unrelated to the regulatory activities to which the fees were charged; the Board’s fee calculation methodology was reasonable; and the fees on the manufacturers bore a reasonable relationship to the manufacturer’s pollution impacts.  Overall, the Association failed to meet its burden and show why the Board’s Regulation was unreasonable.

The Court then held the Code was not an unconstitutional delegation of power to the Board.  The Code does not give the Board authority to regulate; rather, the Code allows the Board to establish a fee to support its regulatory activities that are authorized by other statutes.  Moreover, the Code requires the Board to use the collected fees for specific mitigatory programs.  The Court concluded, “[w]e invalidate a legislative enactment as an unlawful delegation of legislative power only in the event of a total abdication of that power, through failure either to render basic policy decisions or to assure that they are implemented as made.  [Citation.]  We find no such abdication.”

Lastly, the Court addressed the Association’s due process and equal protection claims.  Under the rational basis standard of review, the Court upheld the trial court’s determination that the Code and Regulations did not violate due process or equal protection.  The Court explained, “[t]he disparities the Association points to as violating equal protection and due process are fundamentally the Legislature’s decision to exempt sources that emit less than 250 tons and the Board’s decision to impose a single per-ton rate … We cannot find there was no reasonable basis for treating affected manufacturers, including the Association, differently than other sources of emissions.”

Overall, the Court of Appeal’s decision reflects a deferential standard of review, which favors the agency’s action.  To overcome this standard, a challenger needs to make a strong prima facie showing of unreasonableness or lack of any rational basis in the agency’s action.

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