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Nos. C075954 and C075930
COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
CALIFORNIA CHAMBER OF COMMERCE, et al. Plaintiffs and Appellants,
v. CALIFORNIA AIR RESOURCES BOARD, et al.
Defendants and Respondents; NATIONAL ASSOCIATION OF MANUFACTURERS,
Intervener and Appellant, ENVIRONMENTAL DEFENSE FUND, et. al,
Interveners and Respondents.
MORNING STAR PACKING COMPANY, et al., Plaintiffs and Appellants,
v. CALIFORNIA AIR RESOURCES BOARD, et al.
Defendants and Respondents; ENVIRONMENTAL DEFENSE FUND, et. al,
Interveners and Respondents.
On Appeal from the Superior Court of Sacramento County . (Case No. 34-2013-80001464, Hon. Timothy M. Frawley, Judge)
APPLICATION TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL
CENTER, OWNER-OPERATED INDEPENDENT DRIVERS ASSOCIATION, INC., AND ASSOCIATED CALIFORNIA
LOGGERS IN SUPPORT OF APPELLANTS
NFIB SMALL BUSINESS LEGAL CENTER Luke A. Wake (264647) 921 11th St., Ste. 400 Sacramento, CA 96814 Telephone: (916) 448-9904 Facsimile: (916) 916-5104
BENBROOK LAW GROUP, PC Bradley A. Benbrook (177786) Stephen M. Duvernay (250957) 400 Capitol Mall, Ste. 1610 Sacramento, CA 95814 Telephone: (916) 447-4900 Facsimile: (916) 447-4904
Attorneys for Amici Curiae NFIB Small Business Legal Center
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TABLE OF CONTENTS
A:e:eLICATIO "l\.T TO E'ILE A 7l!TTCI CTTRI"AE BRIDF _ ......... 2 ......... ··------,-·---··--·-·· - • - - ~- • ~ - -l~-- ,_,_ -- •S •- •••..t:1:.LV1.4" - • -•-•• •- ••l:J•~ ~ " -£1..a '' •- • - - • • .._..11J. · •• •..•.• ~ •.• ~.-·.-,~ •.• -.,-.-···-·····-'·-· ••••• t ·-
AMICI CURIAE BRIEF .................................................................... 7
INTRODUCTION ... , .......................................................................... 7
QUESTIONS PRESENTED .................................................... : ........ 9
STATENIENT OF CASE ................................................................... 9
ARGUMENT ..................................................................................... 9
I. Regulatory Authority Cannot be Inferred From Statutory Silence ...................................................................................... 9
A. State Agencies Have No Authority, Except What is Expressly Delegated ........ ; .................. ; .............................. 9
B. CARB's Theory of Unbounded "Gap-Filling Authority" is Untenable .......................................................................... 12
1. Agencies Have Authority to Act Only Within the Scope a Statutory Charge-to Directly Advance the Legislature's Regulatory Goals ............................................................. 14
11. It is Improper to Assume "Gap-Filling" Authority ..... 17
111. A General Grant of Authority Must be Construed __ Narrowly in Consideration of the Canons of ..... ··-
Construction .................................................................. 19 ./'Ii
II. The Legislature Denied CARB Authority to Auction Emission Allowances .......................................................... 21
A. Authority to Restrict GHG Emissions Does Not Authorize Monetary Exactions ....................................... 21
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B. The Act Entails Textual Cues that the Legislature Did Not Intend to Authorize Auctions and Intended to Minimize the Cost of Compliance ................................... 25
CONCLUSION ........................................................ ; ....................... 29
WORD COUNT CERTIFICATION ................................................ 30
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TABLE OF AUTHORITIES Cases
Am. Fed'n of Labor v. Unemp't Ins. Appeals Bd., 1° n l 4+t. 101,.., 11996'.'I- ··········--·-·-··-····-·····---···--·········-·······---··-···-·········--····--···········--·--·····--· .. ··---·-·····-··--9 --···--··-·-····--···--. ···--·······-··-- ·0-1.::1·a, tri"l ·t \ J , .... ., , • , .... ., .... ,, ...... , ...... , ...... , .... , , .. , , , .. , .... , .. .. .. •
Ass'n of Cal. Insurance Cos. v. Jones, 235 Cal.App.4th 1009 (2015) ................................................ passim
Bearden v. U.S. Borax, Inc., 138 Cal.App.4th 429 (2006) .................................................. ; ......... ·9
Cal. Ass'n of Health Facilities v. Dept. of Health Servs., 16 Cal.4th 284 (1997) .................................................................... 20
Cal. Redev. Ass'n v. Matosantos, 53 Cal.4th 231 (2011) .................................................................... 19
Engine Mfrs. Ass'n v. Cal. Air Resources Bd., 231 Cal.App.4th 1022 (2014) ........................................................ 16
Envtl. Prot. Info. Ctr. v. Dep 't of Forestry & Fire Prot., 43 Cal.App.4th 1011 (1996) .................................................... 11, 17
First Indus. Loan Co. of Cal. v. Daugherty, 26 Cal.2d 545 (1945) ............................................................. passim
Ford Dealers Ass'n v. Dept. of Motor Vehicles, 32 Cal.3d 34 7 (1982) .............................................................. ; 14, 15
In re Williamson, 43 Cal.2d 651 (1954) ........ .; ........................................................... 20
Koontz v. St. Johns River Management District -- ses--e.s. __ .;, 1ss-s. ct. 25-Sff c2orsJ .................. : .......... .-.: .......... :2·s
Kugler v. Yocum, ·--~ 69 Cal.2d 371 (1968) ..................................................................... 15
Morris v. Williams, 67 Cal.2d 733 (1967) ............................................................... 11, 23
111
People v. Chandler, 60 Cal.4th 508 (2014) .................................................................... 28
O'Grady v. Super. Ct., 139 Cal.App.4th 1423 (2006) .................................................. 20, 27
Physicians & Surgeons Labs., Inc. v. Dep 't of Health Servs., 6 Cal.App.4th 968 (1992) .................................................. 10, 13, 17
Reno v. Baird, 18 Cal.4th 640 (1998) .............................................................. 21, 25
Ry. Labors Execs. Ass'n v. Nat'l Mediation Bd., 29 F.3d 655 (D.C. Cir. 1994) ......................................................... 13
State ex rel. Nee v. Unum provident Corp., 140 Cal.App.4th. 442 (2006) ................................................... 13, 23
Verdugo v. Target, 59 Cal.4th 312 (2014) .............................................................. 20, 25
W States Petroleum Ass'n v. Bd. of Equalization, 57 Cal.4th 401 (2013) .................................................................... 11
Water Replenishment Dist. of S. Cal. v. City of Cerritos, 202 Cal.App.4th 1063 (2012) ........................................................ 10
Whitcomb Hotel v. Cal. Emp't Comm'n, 24 Cal. 2d 753 (1944) .; .................................................................. 18
Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457 (2001) '. ....................................................................... 19
Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal.4th 1 (1998) ........................................................................ 11
Constitutional Erovisions
California Constitution. Cal. Const., art. XIIIA, § 3 .............................. 28
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I Statutes l Cal. Code Regs., tit. 17, § 95802 ............................................................. 21
Cal. Code Regs., tit. 17, § 95811 ............................................................. 21
Cal. Code Regs., tit. 17, § 95812 ............ : ................................................ 21
Cal. Code Regs., tit. 17, § 95830-95834 .................................................. 22
Cal. Code Regs., tit. 17, §§ 95910-95914 ................................................ 22
Cal. Code Regs., tit. 17, § 98541. ............................................................ 21
Gov't Code § 16428.8 ............................................................................... 22
Health & Saf. Code§ 39712 .................................................................... 22
Health & Saf. Code § 39716 .................................................................... 22
Health & Saf. Code 39718 ....................................................................... 22
Health & Saf. Code § 39713 .................................................................... 22
Health & Saf. Code § 38570 .................................................................... 22
Health & Saf. Code§ 38597 .............................................................. 27, 28
Health & Saf. Code§§ 38500 et seq ........................................................ 21
T Health & Saf. Code § 38562 .............................................................. 18, 26
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Other Authorities
Cass R. Sunstein, Interpreting Statutes in the Regulatory State Law ,,Jt. .
and Administration After Chevron, 90 Col um. L. Rev. 2071 (1990) .. 17
Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983) ..................................................................................... 10
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Nathan Sales & Jonathan H. Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497 (2009) .......................................... '. ................................. 10, 17
Hugh D. Spitzer, Taxes vs. Fees: A Curious Confusion, ···· ---%8-Efonz:-b:·-Rev:-··3·3·5-(2tl03}":::·.:·:-.:·::·~:.: ... ::.;::.: .... :.:.:· .... : ........ :.: ....... :24
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APPLICATION TO FILE AMICI CURIAE BRIEF To the Honorable Presiding Judge of the Court of Appeal,
Third Appellate District:
Pursuant to Rule 8.200(c) of the California Rules of Court, the
National Federation of Independent Business Small Business Legal
Center ("NFIB Legal Center") and Associated California Loggers
respectfully apply for leave to file an amici curiae brief in support of
Plaintiffs and Appellants, California Chamber of Commerce, et al.,
and Morning Star Company, et al., in these consolidated cases.1
The NFIB Legal Center is a nonprofit, public interest law firm
established to provide legal resources and be the voice for small
business in the nation's courts through representation on issues of
public interest affecting small business. The National Federation of
Independent Business (NFIB) is the nation's leading small business
association representing members in Washington, D.C., and all 50
state capitols. Founded in 1943 as a nonprofit, nonpartisan
organization, NFIB's mission is to promote and protect the rights of
its members to own, operate and grow their businesses.
NFIB represents approximately 350,000 members nationwide
and its membership spans the spectrum of business operations,
ranging from sole proprietor enterprises to firms with hundreds of
1 As a courtesy, NFIB Legal Center notified Defendants-Respondents and Intervener-Respondents of its intention to file this amici brief, and respectfully requested their consent, on April 28, 2015. Defendants-Respondents stated that they do not oppose this application for leave to file the proposed amici curiae brief. Intervener-Respondents did not reply.
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employees. While there is no standard definition of a "small
business," the typical NFIB member employees 10 people and
reports gross sales of about $500,000 a year. The NFIB membership
is-a reflection of American small business. . ... - . . .
To fulfill its role as the voice for small business, the NFIB
Legal Center frequently files amici briefs in cases that will impact
the small business community. NFIB Legal Center seeks to file in ·"
this case because it raises an important issue for the small business
comm unity-and one that arises frequently in regulatory cases.
Specifically, this case raises the fundamental question of how courts
should review potentially ultra uires regulations. As NFIB Legal
Center recently explained in a letter brief to the California Supreme
Court, "where a regulation is adopted without lawful authority, real
lives are affected-often placing additional burdens and financial
strains on small businesses that are already struggling." Letter Br.
NFIB Legal Center, PaintCare u. Mortensen, Cal. Sup. Ct. Case No.
8225105 (Apr. 17, 2015). Accordingly, the question presented in this
case is not only of doctrinal importance, but also of tremendous
practical importance for the small business community. Thus NFIB
Legal Center's interest in this case transcends the substantive issue
at hand.
Y et1 __ t]:ie . NFIB Legal Center also wishes t_o ~VO!_~~ _ f3_J:!l:all
business concerns over the auction emission regulations at issue .)\';
here because those regulations drive up the cost of complying with
the California Air Resources Board's (CARE) Cap-and-Trade
Regulations. Those added compliance costs will directly affect those
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small businesses subject to CARB's cap-and-trade regime, and will
predictably affect other small businesses in their capacity as
consumers. The small business community is especially concerned
-that-tne 1rffsn.iled a:trctiori ···em1ssi6n.re·gulafiOiis-wilT resiiTfin-liigne-r . . energy costs.
The cost of energy is already a top concern for small business
owners nationally, and these concerns are heightened here in
California as small business owners fear that CARB's cap-arid-trade
regime-and the auctioning of emission allowances in particular-
will exacerbate the problem of rising energy costs. Indeed, these
interests are so great that the NFIB sought to intervene in this case.
And though that application was denied as untimely, small business
owners still have an interest in the questions presented. For these
reasons NFIB Legal Center seeks to file an amici brief at this
juncture.
The Owner-Operated Independent Drivers Association, Inc.
("OOIDA"), is a trade association made up of independent, small
business, and professional truck operators, many of whom operate in
California. OOIDA is a not-for-profit corporation incorporated in
1973 in the State of Missouri, with its principal place of business in
Grain Valley, Missouri. OOIDA is the largest international trade
association representing the interests of independent owner-- -·---
operators, small business motor carriers and professional drivers.
The 150,000 meri:ibers of OOIDA are professional drivers and small
business men and women located in all 50 states and Canada. One-
truck motor carriers represent nearly half the total number of active
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motor carriers operating in the United States while approximately
96 percent of active motor carriers operate 20 or fewer trucks.
OOIDA joins this amici coalition out of concern that CARB's
· -dHcisionto--a'Uction Bmtssion allowances, -.,_fnderit1:rcap-and-trade··--·-----·--
program, will result in higher fuel costs-and therefore higher
operating costs-for independent truckers. The assailed auction
emission regulations directly raise compliance costs for covered
entities, which includes fuel suppliers operating in California. Those
fuel suppliers are expected to pass those added compliance costs on
to consumers by charging higher rates to fuel distributors who will
ultimately charge truckers more for their fuel needs. Thus OOIDA
has keen interest in this proceeding because OOIDA has an interest
keeping transportation costs economical for its members.
The Associated California Loggers (ACL) is an association
representing small and independent family owned logging
businesses in California. ACL advocates on behalf of its members on
issues impacting the logging industry and seeks to educate its
members on pertinent regulations impacting their businesses. ACL
shares NFIB Legal Center's concern over the impact that CARB's
auction emission regulations will have on energy costs. ACL believes
the auctioning of emission allowances will result in higher operating
costs for ACL members. Further, ACL believes that at least some of ·- --- -··--···-----·-- --· ·---·-·---------·· ------- - -- - . -- --- ·-
its members may be directly subject to CARB's cap~and-trade
regulations and'·'\nay therein be directly burdened by the decision
auction emission allowances because these auctions raise the cost of
compliance for covered entities.
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Amici have reviewed the briefs of the parties and is familiar
with the issues presented. Amici believe that the proposed brief will
assist the Court by addressing the fundamental doctrinal issues . -·----------·-·-~·---~~~~~-- ---~-· -~"~--·~~ ~""°"-=-=·-·-.. ~-- - .......... . - ... -·- --- ·- -~ - ·--------- --· --~--··--~-·~··-----"~---·---~· -~~ ·----·------------ ·-·-- - . - ··---.--·"----·-··"'- -------
pre sen te d in this case. This amici curiae brief should prove
especially helpful · in fleshing-out the doctrinal problems with
Defendant-Respondents' "gap-filling" theory, which the superior
court errantly invoked in concluding that CARE had authority to
promulgate auction emission regulations in the face of glaring
statutory silence. Specifically, the proposed brief addresses first
principles of administrative law, and explains the irreconcilable
conflict between the superior court's analytical approach and the
well-established doctrine of California law that agencies are not
entitled to deference on questions of their own jurisdiction.
Accordingly, NFIB Legal Center respectfully urges this Court
to grant this application and file the attached amici curiae brief.
Dated: May 15, 2015
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Respectfully submitted,
NFIB Small Business Legal Center Luke A. Wake
Benbrook Law Group, PC Bradley A. Benbrook
~t,L__~ Luke A. Wake
Attorneys for Amici Curiae NFIB Small Business Legal Center
AMICI CURIAE BRIEF
INTRODUCTION The question here is whether AB 32's general authorization
-- --··-~~~--·-•~M-~••-'•~=~-~~ .. ~,••o-..,o ... ~ •-•••....-.·~-,·---....,,--" ··~.,- -~~--'-~·--~···~·--•--.,,-•·-· ~'•"-·~--~""""···~~,~~,u-,.~•••·--~·~·-----~--~--"·"--~·-.. -•,.••• ------•-•·--••••-• -·~--~~·-·--
for the California Air Resources Board (CARE) to create a "market-
based compliance mechanism." and to "design" a system. for the
"distribution of emissions allowances" entails the authority to raise
billions of dollars, through the auctioning of emission allowan.ces, as
a by-product of cap-and-trade regulation. Of course a necessary
component of any cap-and-trade regime is a program for distributing
emission allowances. For this reason, authority to create a cap-and-
trade program necessarily entails authority to make an initial
allocation of credits. But, that does not necessarily entail-or even
fairly imply-any authority to exact money from. the regulated
comm.unity. To be sure, in this case CARE would accomplish the
very same regulatory goal of reducing greenhouse gas ("GHG")
emissions to 1990 levels by the year 2020 if the agency had chosen to
equitably distribute emission allowances among covered entities at
no cost.
Whether distributed at no cost, or by auction-as CARE has
chosen-the regulatory effect is the same: covered entities must
reduce their aggregate emissions in order to remain in compliance,
and--m-ust-fu.Tther reduce emissions each year as GARB~ Fed-uces the
annual supply 01,.allowance credits. Therefore, CARE's decision to
auction emission allowances must be viewed as ultra vires because
the act of exacting money from covered entities is not germane to
goal of reducing GHG em1ss10ns. The auctions are entirely
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superfluous to that regulatory goal.
CARB defends its decision to auction emission allowances on
the view that AB 32 has conferred a broad and open-ended authority
on the agency to fill-in gaps where the Legislature was silent. Thus
despite the fact that the Act said nothing whatsoever about
auctioning emission allowances, or for what purpose auction
revenues might be devoted, CARB maintains that this Court should
defer to its judgment that the Legislature intended to authorize the
auctioning of emission allowances. The argument is circular-
assuming delegation of gap-filling authority because the CARB has
concluded that its authority should be so construed. But this free-
wielding theory of "gap-filling authority" contravenes first principles
of administrative law and conflicts with the well--established
doctrine that California courts will not defer to an agency's
interpretation on a jurisdictional question. Ultimately, CARB's
proffered interpretation must be rejected as untenable in
consideration of the canons of construction, including the canon
expressio unius est exclusio alterius and the fundamental principle
that courts will not infer a departure from common-law standards in
the absence of a demonstrably clear affirmation oflegislative intent.
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QUESTIONS PRESENTED Administrative agencies often claim broad "gap-filling authority"
to regulate on matters for which the governing statute is silent. This
case squarely raises these issues:
1. Does the Air Resources Board have authority to auction
emission allowances under its cap-and-trade program?
2. Is it proper to infer that the Legislature intended to confer
"gap-filling authority" to carry out regulatory acts that are not
germane to-and do not directly advance-the Legislature's
stated regulatory goal?
STATEMENT OF CASE Amici adopt the statement of case and facts set forth in
Plaintiffs-Appellants' respective briefs. Amici refer to Plaintiff-
Appellants and Plaintiff-Intervenor collectively as "the Regulated
Industry."
ARGUMENT I. Regulatory Authority Cannot be Inferred From
Statutory Silence
A. State Agencies Have No Authority, Except What is Expressly Delegated
Agencies are creatures of statute. Am. Fed'n of Labor v.
Unemp't Ins. Appeals Ed., 13 Cal.4th 1017, 1042 (1996) ("It is well
settled that administrative agencies have only the powers conferred
on them."). They mdst solely by virtue oflegislative enactments. For
this reason they have no inherent powers or prerogatives. See, e.g.,
Bearden v. U.S. Borax, Inc., 138 Cal.App.4th 429, 435-36 (2006);
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Water Replenishment Dist. of S. Cal. v. City of Cerritos, 202
Cal.App.4th 1063, 1072 (2012).
Agencies have no inherent powers, only delegated ones.
That is why they are called 'administrative agencies'-
they are created to administer programs established by
[the Legislature], and in doing so they act as the
[Legislature's] agents. As Professor Monaghan noted,
"[T]he universe of each agency is limited by the
legislative specifications contained in its organic act."
This means that [the Legislature] must delegate an
agency power to act. If [the Legislature] [does] not act,
the agency [has] no authority.
Nathan Sales & Jonathan H. Adler, The Rest is Silence: Chevron
Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill.
L. Rev. 1497, 1504 (2009) (quoting Henry P. Monaghan, Marbury
and the Administrative State, 83 Colum. L. Rev. 1, 14 (1983)).
Accordingly, the agency bears the burden of demonstrating
that it has been affirmatively authorized to undertake a challenged
action. See First Indus. Loan Co. of Cal. v. Daugherty, 26 Cal.2d 545,
549-550 (1945) (explaining that an agency must demonstrate that a
regulation "falls within the power specifically conferred upon the
[agency]"). In keeping with the understanding that an agency's
lawful authority is limited by the text of the governing statute, ,.;'1,
California courts hold that no deference is owed to an agency's
interpretation of jurisdictional language. Physicians & Surgeons
Labs., Inc. v. Dep 't of Health Servs., 6 Cal.App.4th 968, 982 (1992)
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("Thus, the first task of the reviewing court is to decide [whether]
the agency reasonably interpreted its legislative mandate as
regulations that alter or amend the statute or enlarge or impair its
scope are void."); Enutl. Prat. Info. Ctr. u. Dep 't of Forestry & Fire
Prat., 43 Cal.App.4th 1011, 1022 (1996). In the absence of a clear
and unambiguous textual grant of authority, the agency bears a
heavy burden to justify an assertion of regulatory authority. See W.
States Petroleum Ass'n u. Ed. of Equalization, 57 Cal.4th 401, 415
(2013) (affirming that courts exercise independent judgment "when
an implementing regulation is challenged on the ground that it is 'in
conflict with the statute' ... or does not 'lay within the lawmaking
authority delegated by the Legislature"') (quoting Yamaha Corp. of
Am. u. State Ed. of Equalization, 19 Cal.4th 1, 10-11 & n.4 (1998)).
vVhere the statute is seemingly silent on a specific matter for
which an agency asserts regulatory authority, it is necessary to
engage in a critical analysis of the statutory framework-employing
the canons of construction to ascertain the meaning of jurisdictional
language. See Envtl. Prat. Info. Ctr, 43 Cal.App.4th at 1022. In some
cases, authority is implicitly derived from an express authorization
to carry out a given act because a specific authorization necessarily
entails authorization to carry out those actions necessary to
a~d~_9.1.1:~t~~rc~1:?1J2lete the task. See Morris v. William[!, 67 Qal]
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demonstrating that its proffered interpretation is the most
reasonable-taking into account the structure of the act as whole,
pertinent legislative history, and all of the canons of construction.
See Ass'n of Cal. Insurance Cos. v. Jones, 235 Cal.App.4th 1009
(2015) ("[N]either the trial court nor we are required to give
deference to an administrative agency's interpretation of the scope of
its own authority.").
B. CARB's Theory of Unbounded "Gap-Filling Authority" is Untenable
In the absence of any specific statutory authorization for its
conduct, CARE contends that the Legislature has conferred "gap-~
filling authority" in the general charge to reduce greenhouse gas
emissions, and in the broad authorization to create a market-based
cap-and-trade system. 2 But this invocation of the "gap-filling"
2 As a threshold matter, CARE argues that the statutory authorization to "design" a system for the "distribution of emissions allowances" constitutes a direct authorization to auction emission allowances. But that argument still infers authority from silence. CARE assigns meaning to this language that is neither plain nor compelled from context. The most natural reading of this authorization is that the Legislature intended to make explicit what was already implicit-i.e., that the Legislature has given CARE the tools necessary to establish a cap-and-trade program, which necessarily requires a system for distributing emission allowances. Indeed, every cap-and-trade program must include some program for distributing credits among regulated entities. But as the Regulated Industry has demonstrated, there are many cap-and-trade programs that distribute emission allowances without auctioning credits. See E.g., Cal. Envtl. Protection Agency, South Coast Air Quality Mgmt. Dist., Rule Book (outlining rules for a cap-and-trade program predating AB 32, which distributed credits without charge), online at http://www.arb.ca.gov/drdb/sc/cur.htm.
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doctrine is misplaced. CARB's approach must be rejected because it
would give administrative agencies free-wielding powers to do
anything not expressly prohibited by the statute, so long as the
agency's interpretation seems consistent with the spirit, or the
purpose, of the regime.
Indeed, a presumption of "gap-filling authority" would turn
first principles of administrative law on their head. State ex rel. Nee
v. Unumprovident Corp., 140 Cal.App.4th. 442, 452-53 (2006)
(reaffirming the principle that "[a] ministerial officer may not ...
under the guise of a rule or regulation vary or enlarge the terms of a
legislative enactment or compel that to be done which lies without
the scope of the statute and which cannot be said to be reasonably
necessary ... ") (quoting First Indus. Loan Co., 26 Cal.2d at 550); see
also Ry. Labors Execs. Ass'n v. Nafl 111ediation Ed., 29 F.3d 655, 659
(D.C. Cir. 1994) (reasoning that a presumption of delegated power
absent an express withholding of such power "comes close to saying
that the [agency] has power to do whatever it pleases merely by
virtue of its existence .... "). An agency's authority simply cannot be
presupposed. Such an assumption runs contrary to the basic precept
that agencies have only those powers expressly delegated-and
contrary to the doctrine that agencies are not entitled to deference
on questions of their own jurisdiction. Physicians & Surgeons Labs.,
6 Cal.App.4th at 982.
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i. Agencies Have Authority to Act Only Within the Scope a Statutory Charge-· to Directly Advance the Legislature's Regulatory Goals
CARB cites Ford Dealers Ass'n u. Dept. of Motor Vehicles, 32
Cal.3d 34 7 (1982), in support of its assertion that the Legislature
has delegated authority for it to "'fill up the details'" of AB 32's
"complex and multi-pronged regulatory program." (Resp.'s Br. of Cal.
Air Resources Bd. at 29.) But that decision does not stand for the
proposition that an agency may fill-in gaps on matters for which the
governing statute is utterly silent, where-as in this case-the
contested act is not germane to any explicit authorization. Ford
Dealers did not endorse an untethered theory of "gap-filling
authority" that would enable an agency to write text into a statute.
On the contrary, that case explains that, when confronted with
vague language, an agency may promulgate regulations to clarify its
meaning-consistent with the agency's statutory charge. Id. at 362-
63. That rule is consistent with the first rule of administrative law:
that agencies only have those powers that the Legislature has
affirmatively delegated.
In Ford Dealers, a trade association contested the Department
of Motor Vehicle's authority to promulgate regulations defining
certain communications as deceptive because the Legislature had
not specifically identified those communications as deceptive in the
governing statute. Icf,. at 356-57. But the Supreme Court rejected
those arguments because DMV was vested with the authority to
promulgate regulations as necessary to regulate deceptive
advertisements; the Court reasoned that this charge to enforce a
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prohibition on deceptive advertisements required the agency to
interpret what the Legislature intended to be covered. Id. at 363
("DMV clearly has the discretion to decide that statements such as
-those at issue here are inherently misfeading."). Thus the Court
recognized that DMV had authority to "fill up the details" of that
regulatory regime-but only because it determined that DMV was
drawing within the statutory lines. Id. at 362 (quoting Kugler u.
Yocum, 69 Cal.2d 371, 376 (1968)).
This understanding is confirmed on examination of the line of
cases that Ford Dealers relied upon. Specifically, the Court cited
Kugler, which dealt with the question of whether the Legislature
could constitutionally delegate powers to an agency to fill-in details
of a regulatory regime. 69 Cal.2d at 376. There, the Court explained
that "[t]he Legislature may, after declaring a policy and fixing a
primary standard, confer upon executive or administrative officers
the 'power to fill up the details' by prescribing administrative rules
and regulations to promote the purposes of the legislation and to
carry it into effect . ... " Id. (quoting First Indus. Loan Co., 26 Cal.2d
at 549 (1945) (emphasis added)). Likewise, First Industrial Loan Co.
affirmed the Legislature's power to delegate authority to an agency
to promulgate rules and regulations consistent with a "policy" or
"p~~~~!l st~~~~~~" fixe_~ by statute, which might in_dllde "g-ap·f~lli11,g-_ authority"-if expressly conferred. 26 Cal.2d at 549 .
• _J\1
Those cases stand only for the unremarkable proposition that
an agency may be delegated the authority to fill-in the details of a
statute within the scope of a general authorization, such that an
15
authorization to regulate greenhouse gas emissions may authorize
CARB to take a whole host of regulatory actions directly advancing
that regulatory objective. See, e.g., Engine Mfrs. Ass'n v. Cal. Air
Resources Bd., 231 Cal.App.4th 1022, 1039-41 (2014) (concluding
that CARB's mandate to adopt regulations to reduce GHGs
conferred broad enough authority to require compliance testing on
in-use heavy-duty engines). But none of those cases support CARB's
free-wielding assertion that an agency may invoke "gap-filling
authority" to carry out an act that is in no way germane to the direct
advancement of regulatory goals set forth by statute. 3 Such a rule
would enable an agency to supplement its delegated powers to
accomplish tangential goals that the Legislature never
contemplated. Here CARB seeks to contort the concept of"gap-filling
authority" in a manner that would validate any regulatory action
that the agency thinks promotes sound policy-so long as it is not
inconsistent with the text of AB 32. That is a perversion the "gap-
3 In each of the cases CARB that relies on, the regulation was logically within the field of authority conferred and directly advanced the Legislature's explicit regulatory objectives-as determined by a court in review of the full statutory regime. Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 182-83 (1968) (holding that a broad statutory authorization to "foster and encourage the orderly wholesale marketing and wholesale distribution of beer" could reasonably be construed as conferring authority to prohibit quantity discounts on the sale of beer); Credit Ins. Gen. Agents Ass'n of Cal. v .
.•. 'j,.
Payne, 16 Cal.3d 651, 656-57 (1976) (reading a general rulemaking. provision, in conjunction with other provisions authorizing the insurance commissioner to disapprove of insurance forms that are determined to be "unjust, unfair, inequitable,"· etc., as authorizing regulation of commission rates for insurance agents).
16
filling" doctrine because it infers "gap-filling" powers from utter
silence.
ii. It is Improper to Assume "Gap-Filling" Authority
Where an agency claims '1gap-filling" authority to regulate on
a matter that is arguably within the scope of a general statutory
charge, California courts do not defer to that assertion of authority.
See Envtl. Prat. Info. Ctr., 43 Cal.App.4th at 1022 ("[The] standard of
review is one of respectful nondeference."). Such deference would be
inappropriate because jurisdictional language is, by its very nature,
intended to limit the scope of powers conferred. Sales & Adler,
supra, at 1541-43. Indeed, to defer to an agency on a question of the
scope of its own powers would be to let foxes guard the hen-house.
See Cass R. Sunstein, Interpreting Statutes in the Regulatory State
Law and Administration After Chevron, 90 Colum. L. Rev. 2071,
2097 (1990) (observing that, "in Anglo-American law, those limited
by law are generally not empowered to decide on the meaning of the
limitation.").
Deference toward an agency's assertion of jurisdiction would
encourage self-aggrandizement of power. Sales & Adler, supra, at
1501-02. It would enable an agency to exploit any ambiguity in
jurisdictional language to advance its proffered policies, and, more
realistically, its institutional interests. Id. at 1548. For all of these
reasons, California c@urts rightly hold that agencies are not entitled
deference on questions of their own jurisdiction. Physicians &
Surgeons Labs., Inc., 6 Cal.App.4th at 982; see also Sales & Adler,
supra, at 1535 ("However much expertise agencies may have at
17
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answering technical or policy questions, they have no institutional.
advantage in resolving jurisdictional questions.").
In the face of this doctrine CARE contends that this Court
should assume the agency's authority to auction emission
allowances. The argument holds that through the general mandate
to reduce California's GHGs, and the general authorization to create
a cap-and-trade system, the Legislature has conferred broad "gap-
filling authority" upon the agency to "design" the cap-and-trade
program in whatever manner CARE thinks most prudent. CARE
contends that the only substantive limitations on its authority were
set forth in discrete requirements to take into account certain
considerations in the process of promulgating its cap-and-trade
regulations; however, by that logic an agency could convert general
language in any statute into a free-wielding power to act in any
manner not explicitly forbidden by the statute. 4 Accordingly, this
Court must reject CARB's unfettered "gap-filling" view of
administrative law by affirming that no deference is owed to an
agency's assertion of authority. See Ass'n of Cal. Ins. Cos., 235
Cal.App.4th at 1009 (holding that an assertion of gap-filling
authority must be rejected in light of the canon expressio unius est
exclusio alterius). "Whatever the force of administrative construction
... final responsibility for the interpretation of the law rests with
the courts." Whitcomb Hotel v. Cal. Emp't Comm'n, 24 Cal. 2d 753,
757 -58 (1944). .,
4 Health & Safety Code section 38562, subdivision (b)(l) sets forth those considerations that CARE was required to weigh in designing its system for allocation of emission allowances.
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iii. A General Grant of Authority Must be Construed Narrowly in Consideration of the Canons of Construction
Every delegation of regulatory authority must be construed to
have principled limitations-otherwise it would run afoul of the non-
delegation doctrine. First Indus. Loan Co., 26 Cal.2d at 549. On a
more fundamental level, every delegation must be understood to
entail limits because a conferral of jurisdictional authority
necessarily outlines the nature-and therefore the scope-of the
authority conferred. Id. at 550. But even where the text of a statute
suggests a seemingly broad delegation of regulatory authority, it is
important to remember that statutory provisions are never read in
isolation; they must be harmonized within the larger statutory
,regime. Ass 1n of Cal. Ins. Cos., 235 Cal.App.4th at 1009 ("We deduce
that authority from the language of the statute itself by applying
familiar maxims of statutory construction.") This means that in
many cases an otherwise broad conferral of authority must be
understood as cabined by a rational construction of the Act as a
whole. Id.
In this case it is especially important to keep in mind that an
assertion of regulatory authority is highly questionable on a matter
for which one would expect the Legislature to have spoken more
directly or specifically. Cal. Redev. Ass'n v. Matosantos, 53 Cal.4th
231, 260-61 (2011) (qbserving that "drafters oflegislation 'do not ...
hide elephants in mouseholes."') (quoting Whitman v. Am. Trucking
Ass'ns, Inc., 531 U.S. 457, 468 (2001)). For example, where a statute
expressly authorizes an agency to regulate X and Y, but makes no
19
mention of Zed, the only logical conclusion is that the Legislature
did not intend to authorize regulation of Zed. O'Grady v. Super. Ct.,
139 Cal.App.4th 1423, 1443 (2006) (affirming the principle that
statutes are "presumed to exclude things not mentioned"). Even if
the agency could point to general language that might justify its
regulation of Zed, if read in isolation, the more specific provisions
outlining the requirements to regulate X and Y-but neglecting any
mention of Zed-belie any assertion that the Legislature intended to
confer "gap-filling authority" to regulate Zed. See In re Williamson,
43 Cal.2d 651, 654 (1954) (recognizing specific language must be
given effect over more general language).
Another relevant principle of construction holds that an
interpretation should not be presumed if it would displace common
law standards or principles. '"[U]nless expressly provided, statutes
should not be interpreted to alter the common law, and should be
construed to avoid conflict with common law rules."' Verdugo v.
Target, 59 Cal.4th 312, 326 (2014) (quoting Cal. Ass'n of Health
Facilities v. Dept. of Health Servs., 16 Cal.4th 284, 297 (1997)).
Accordingly, if the statutory text is silent on a question, and there
are two proffered interpretations, the better interpretation is that
which protects settled expectations. Id. In such a case, it must be
presumed that the Legislature would have spoken more clearly if it
intended a departure from the status quo. Id. at 326-27. Thus, an
interpretation should be rejected-especially when inferred from
silence-if it would impose substantially greater burdens on
individuals exercising common law rights than would be necessary
20
under an alternative reading that just as well advances the same
regulatory goal. See Reno v. Baird, 18 Cal.4th 640, 652 (1998)
(rejecting an interpretation that would impose severe adverse effects
on the regulated comm unity-but with only "minimal potential
[public] benefit[s]"-on the presumption the Legislature would not
have intended such a result).
II. The Legislature Denied CARB Authority to Auction Emission Allowances
A. Authority to Restrict GHG Emissions Does Not Authorize Monetary Exactions
The Global Warming Solutions Act charges CARB with
promulgating regulations to achieve the legislative goal of reducing
GHG emissions to 1990 levels by 2020. Health & Safety Code §§
38500 et seq. To that end, CARE was authorized to implement a cap-
and-trade program utilizing a "market-based compliance
mechanism." Id., §§ 38505(k); 38570. And the agency has decided to
move forward with plans to implement a cap-and-trade regime-
w herein "covered entities"5 are required to obtain "emission
allowances"6 in order to continue emitt_ing GHGs. 7 Cal. Code Regs.,
tit. 17, §§ 98541.
5 Entities in specified industries-for example, the food processing industry-are considered "covered entities" if they annually emit 25,000 metric tons of GHGs. Cal. Code Regs., tit. 17, §§ 95802(a); 95811; 95812.)
.. \\ 6 Each emission allowance authorizes the holder to "emit up to one metric ton ... of any GHG specified in§ 95810, subject to ... [specified limitations]." Cal. Code Regs., tit. 17, § 95820.) 7 Each year the regulations provide that CARB will issue fewer and fewer emission allowances, therein ensuring that over time
21
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To make the system work, the CARE needed to determine how
emission allowances should be allocated among covered entities. One
option would have been to freely distribute each year's emission
allowances in an equitable manner. Instead, CARE decided to
auction the remaining portion to the highest bidder-therein
exacting billions of dollars from the regulated community. Cal. Code
Regs., tit. 17, §§ 95830-95834, and 95910-95914.)
CARE invokes AB 32 as its authority to conduct these
auctions; however, AB 32 never mentions the word "auction." Nor
does the Act include the words "proceeds" or "revenues." For that
matter, AB 32 never gives any indication that the Legislature
contemplated how auction proceeds might be used. 8
CARE can only point to general language authorizing it to
implement a cap-and-trade regime. Health & Safety Code§ 38570 (c)
(stating CARB "shall adopt regulations governing how market-based
compliance mechanisms may be used by regulated entities subject to
greenhouse gas emission limits ... to achieve compliance."). But,
whilethe statute clearly authorized CARE to impose GHG emission
restrictions using a "market-based compliance mechanism," CARB's
assumed authority to raise revenues in allocating emission
"covered entities" are forced to reduce their aggregate emissions. 8 The Legislatu;re subsequently enacted statutes to appropriate any revenues collected through CARB's auctions; however, those enactment do not speak to whether CARE was authorized, under AB 32, to auction emission allowances. (Gov't Code § 16428.8 (b)-(d); Health & Saf. Code §§ 39712(a)-(c), 39716(a)-(c), 39718(a)-(b); § 39713(b).)
22
allowances-through an auction-is based on a highly questionable
inference.
The problem is that authority to auction emission allowances
cannot be inferreclfrom the general grant of authority to establish a
cap-and-trade regime because it not reasonably necessary to raise
revenues through an auction in order to either enforce compliance
with a market-based cap-and-trade system or to meet AB 32's
regulatory goal of reducing GHG em1ss10n levels. See
Unumprovident Corp., 140 Cal.App.4th at 452-53 (emphasizing that
an explicit authorization only confers implicit authority to do what is
"reasonably necessary" to carry out the general charge); First Indus.
Loan Co., 26 Cal.2d at 550 (same); Morris, 67 Cal.2d 733 at 737
(same).
When scrutinized, it is plain that ARB does not seek to color
within the lines, but to draw outside the lines that the Legislature
established with enactment of AB 32. ARB is authorized to create a
cap-and-trade regime, but this authorization must be understood in
context. See Ass'n of Cal. Ins. Cos., 235 Cal.App.4th at 1009. The
Legislature delegated regulatory authority only for the purpose of
effecting a statewide reduction in GHG emissions. Viewed through
that contextual lens, ARB's asserted authority to auction emission
allowances is misplaced because it is unrelated to the goal of
reducing GHGs.
To be sure, ARB would achieve its regulatory goals in the
same manner whether emission allowances are equitably allocated
at no charge among covered entities, or auctioned to the highest
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·bidder.Both distribution methods yield the very same result. Either
way, covered entities are forced to reduce their aggregate statewide
emissions to conform with ARB's descending annual cap on GHG
emissions-which is (either way) proportional to the number of
emission allowances that ARB chooses to issue in any given year.
The only difference is that in auctioning emission allowances ARB
can exact monies from. covered entities.9
Thus it is evident that ARB's asserted authority to auction
emission allowances is extraneous: it falls beyond the scope of the
general authorization to design a system for the distribution of
emission allowances. See First Indus. Loan Co., 26 Cal.2d at 550
(affirming that a general authorization only confers power to do that
which is "reasonably necessary or appropriate to subserv[e] or
promot[e] the interests and purposes of the statute."). And that
understanding-implicit in the very structure of the Act-is only
confirmed by the fact that ARB's interpretation would result in
substantially greater compliance costs for the regulated comm unity,
a result that would only make sense if the Legislature had been
explicit in authorizing the auctioning of emission allowances.
Indeed, the decision to auction emission allowances adds
tremendously to the burden of compliance because covered entities
must not only find ways to reduce emissions, but must-under
9 Amici maintain that this exaction constitutes an illegal tax. But either way, the exaction ofm.oney-whether viewed as a fee or a tax-achieves something extraneous to the goal of forcing regulated entities to reduce GHGs. See Hugh D. Spitzer, Taxes vs. Fees: A Curious Confusion, 38 Ganz. L. Rev. 335, 343 (2003).
24
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ARB's regulations-pay for the right to continue emitting where
they would otherwise be afforded that right at no cost. 10
B. The Act Entails Textual Cues that the Legislature Did Not Intend to Authorize Auctions and Intended to Minimize the Cost of Compliance
In the absence of clear and definitive language, it would be
unreasonable to assume that the Legislature intended to impose
billions of dollars in added compliance costs on the regulated
community. 11 Cf. Verdugo, 59 Cal.4th at 326. Further, in this case
there are firm textual clues-in the plain language of the Act-
10 In the coming years CARE plans to auction up to half of its aggregate annual emission allowances; however, under CARB's view the agency might just as well choose to auction all of emission allowances: That would radically drive up compliance costs for the regulated community all the more. Further, CARB's theory would seemingly enable the agency to ratchet up compliance costs further by raising the floor price at which it might sell emission allowances. Simply put, CARB's construction would enable the agency to exact far greater revenues than the estimated $12-$70 billion that the current regime is anticipated to raise for the State. Amici maintain the Legislature would have spoken more clearly if it had intended to write ARB a blank check to exact unbounded revenues. 11 Clearly the Legislature intended a departure from the common law in authorizing imposition of a cap-and-trade regime because the Legislature was explicit in authorizing CARE to regulate GHG emissions that covered entities would otherwise be free to emit. But CARB's purported authority to auction emission allowances presumes a further departure from common law standards, wherein property owners must not only obtain a permission slip to continue emitting GHGs, but most now pay for that right. For this reason as well, CARB's interpretat_ion should be rejected. Reno 18 Cal.4th at 652 (emphasizing that a statutory construction should be rejected if it would impose significant added regulatory burdens without substantially advancing the statute's
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confirming that the Legislature intended ARB to choose a system of
allocation that minimizes compliance costs. For example, AB 32
provides that ARB should: "[d]esign ... regulations, including
distribution of e:rnissions allowances where appropriate, in a manner
that is equitable, seeks to minimize costs and maximize the total
benefits to California, and encourages early action to reduce
greenhouse gas emissions." Health & Safety Code § 38562 (b )(1)
(emphasis added).
ARB suggests that its decision to auction emission allowances
is reasonable because, in charging the regulated community billions
of dollars for those credits, the agency believes it may encourage
early compliance by "reward[ing] those firms that reduce emissions
in order to avoid purchasing allowances." (ARB Br. at 14.) But this
reliance on the mandate to consider a distribution system
"encourag[ing] early action" is misplaced. First, as an empirical
matter, it is highly debatable whether ARB's plans to auction
emission allowances did much-if anything-to encourage covered
entities to reduce GHG emissions early on. Second, ARB's logic
utterly ignores the statute's requirement that ARB should "seek to
minimize costs and maximize the total benefits to California .... "
Health & Safety Code§ 38562(b)(l). To be sure, ARB's rationale for
why the regime might (theoretically) encourage early compliance is
entirely predicated upon the fact that the auctioning of emission
allowances results in added compliance costs that will be financially
painful for California's business community-and ultimately
regulatory goals).
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consumers. Third, these provisions can be perfectly harmonized if
interpreted as authorizing an equitable distribution of emission
allowances at no cost to covered entities. 12 Clearly, this approach
would further the Legislature's goal of reducing GHG emissions to '
1990 levels without imposing unnecessary costs on the regulated
comm unity and consumers.
Finally, ARB's theory of broad "gap-filling authority" cannot
justify the auctioning of emission allowances because the
Legislature explicitly authorized ARB to exact monies from covered
entities in the provision authorizing the exaction of fees. Health &
Safety Code§ 38597. This demonstrates that the Legislature knows
how to authorize the exaction of monies when it intends to confer
· such authority. Indeed, under the maxim expressio unius est exclusio
alterius, the inclusion of an express authorization to exact fees in
one provision strongly implies the denial of any inferential authority
to exact monies under a more general provision. O'Grady, 139
Cal.App.4th at 1443; Ass'n of Cal. Ins. Cos., 235 Cal.App.4th at 1009.
That presumption is all the greater here because the auctioning of
emission allowances enables ARB to exact far more than is
12 Amici maintain that one reasonable approach-and perhaps a more equitable solution-would have simply awarded proportionally more emission allowances (at no cost) to smaller entities. This would encourage larger entities-which have greater capital assets and or access to capital-to invest in green technologies. This approach would have minimized costs to Californians while achieving the same regulatory goals, and would further avoid the inequitable problems that arise with auctioning of emission allowances, whereby larger firms have an unfair competitive advantage over smaller firms.
27
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authorized under the provision authorizing the collection of fees.
r Health & Safety Code § 38597. Indeed, it is unfathomable that the
Legislature would explicitly spell out authority to exact a modest
fee, but wo;id i;tend for an inference of authority to effect a far greater monetary exaction. 13
13 The canon of constitutional avoidance offers yet another compelling reason to reject a construction authorizing CARB to exact billions of dollars from the regulated comm unity. People v. Chandler, 60 Cal.4th 508, 524 (2014). Regardless of whether the exaction is characterized as a "tax" or "fee"-CARB's construction raises serious constitutional problems. If understood as a tax, the auctioning of emission allowances violates the California Constitution. Cal. Const., art. XIIIA, § 3. But if understood as imposing monetary fees on the regulated community, the auctioning of emission allowances raises a constitutional problem under the Takings Clause of the United States Constitution. The U.S. Supreme Court made this clear in 2013 with its decision in Koontz v. St. Johns River Management District, which held that the Takings Clause prohibits government from conditioning the right to use private property on a requirement to pay a fee-except in cases where the fee bears a nexus, and is roughly proportional, as determined on an individualized basis, to an adverse impact that the owner's conduct might have on the public. 568 U.S. ---,133 S. Ct. 2586 (2013);LukeA. Wake &JarodM. -Bona, Legislative Exactions After Koontz v. St. Johns River Management Distri'ct (forthcoming in Geo. Int'l Envtl. L. Rev., fall 2015) (observing that "Koontz calls into question permitting regimes requiring applicants to pay into special funds-regardless of which public goals they seek to advance.") (manuscript at 46, online at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=2564205).
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CONCLUSION
For the foregoing reasons, amici respectfully urge this Court
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I to reverse the decision of the Superior Court. I
" ~-------------·-··········· ·········-····-···•"''----·--·-·•«•••«·-······-···-.. -·---.. --.;
Respectfully submitted, Ii
Dated: May 15, 2015
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NFIB Small Business Legal Center Luke A. Wake
Benbrook Law Gro~p, PC Bradley A. Benbrook
-~.~ ~s-LukeA. Wake
Attorneys for Amici Curiae NFIB Small Business Legal Center
WORD COUNT CERTIFICATION I certify, pursuant to Rule 8.204(c) of the California Rules of
Court, that the at~9:ched brief, including footnotes, but excluding the
caption page, tables, and this certification, as measured by the word
count of the computer program used to prepare the brief, contains
5,663 words.
Dated: May 15, 2015
~-£.=----LukeA. Wake
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PROOF OF SERVICE
CASE NO. C075954 and C075930
-----------·---··---''''''"'"-"'''""'-''"'-··-,,,,,,,,_,,,,_,,, ___ ,, __ ,,_,,,, .. ,------... -The undersigned hereby certifies as follows:
I am an employee of the law firm of Benbrook Law Group, PC, 400 Capitol Mall, Suite 1610, Sacramento, California. I am over 18 years of age and am not a party to the within action.
On May 15, 2015 I served a true copy of the foHowing document:
APPLICATION TO FILE AMICI CURIAE BRIEF AND AMIC{CURIAE BRIEF OF THE NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER, OWNER-OPERATED INDEPENDENT DRIVERS ASSOCIATION, INC., AND ASSOCIATED
. . CALIFORNIA LOGGERS IN SUPPORT OF APPELLANTS
on the party(ies) in this action by placing a true copy thereof in a sealed envelope( s ), addressed as follows:
--Theodore Hadzi-Antich Pacific Legal F0tmdation 930 G Street Sacramento, CA 95814
Attorney for: Morning Star Packing Co.
Matthew Dwight Zim1 Shute Mihaly & Weinberger, LLP 396 Hayes Street San Francisco, CA 94102
Attorney for: Environmental Defense Fund James R. Parrinello Nielsen, Merksamer, Parrinello, Gross & Leoni 2350 Kerner Boulevard, Suite 250
-Sancl{afaelrCA.-949-01. - . --·
Attorney for: California Ch'1mber of Commerce --~
Gavin Geraghty McCabe Offiice of the Attorney General PO Box 70550 Oakland, CA 94612-0550
Atiorney for: California Air Resources Board
David Alexander Zonana Office of the State Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550
Attorney for: California Air Resources Board et al.
Erica Morehouse Martin Environmental Defense Fund 1107 9th Street, Suite 1070 Sacramento, CA 95814
Attorney for: Environmental Defense Fund Robert E. Asperger Office of the State Attorney General P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA-94244 -- .. - -----· - ------ ...
Attorney for: California Air Resources Board
Sean A. Commons Sidley Austin LLP 555 West 5th Street Los Angeles, CA 90013
Attorney for: National Association of Manufactures
PROOF OF SERVICE
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Eric D. McAlihur Paul J. Zidlicky Sidley Austin LLP Sidley Austin LLP 1501 K Street NW 1501 K Street NW Washington, DC 20005 • Washinb,ton, DC 20005
Attorney for: National Association of Attorney for: National Association of M1:1.1,rnfactures . - - ·--- ---···-- ··-- . . Manufactures .. . .... Roger R. Martella, Jr. Matthew Dwight Zinn Sidley Austin LLP Shute Mihaly & Weinberger 1501 K Street NW 396 Hayes St Washington, DC 20005 San Francisco, CA 94102
Attorney for: National Association of Manufactures
Attorney for: Environmental Defense Fund
Sean H. Donahue Erica Morehouse Martin Donahue & Goldberg Environmental Defense Fund 2000 L Street, NW, Suite 808 1107 9th Street, Suite 1070 Washington, DC 20036 Sacramento, CA 95814
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I declare under pen'alty of perjury under the laws of the United States of America and the
State of California that the foregoing is true and correct.
Dated: May 15, 2015 Kelly McConnen
PROOF OF SERVICE
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