Industry seeks to evade accountability by labeling a 'fee' as a 'tax'...

Ernest A. Canning Byon 10/27/2010, 9:35am PT

Guest editorial by Ernest A. Canning

If the just released Los Angeles Times/USC poll is accurate, California voters have been able to appreciate that, despite its Orwellian label, "The California Jobs Initiative," Proposition 23 is nothing more than a scam advanced by industry polluters which would destroy both jobs and the environment.

Prop 23 represents a frontal assault on Assembly Bill-36, a landmark piece of bi-partisan green energy legislation, passed by a Democratic-majority state legislature, signed into law by a Republican Governor. That voters have come to recognize Prop 23 as a scam comes as no real surprise, especially since the "No on 23" campaign, courtesy of several Silicon Valley tycoons, raised more than $28 million to more than offset the $9 million spent by the industry polluters --- two Texas oil companies, Valero and Tessoro, along with the infamous Koch Industries --- in support of this oily and deceptive initiative.

Setting aside what this says about the sorry state of our electoral process in which the public must rely upon white-hat corporate donors, as opposed to the mainstream media "news" for the information vital to informed consent, the open question remains whether the public will be taken in by the more subtle, Chevron/Exxon-Mobil/ConocoPhillips/Occidental Petroleum-backed Proposition 26 --- what Bill Magavern of Capital Weekly aptly described as "The Polluter Protection Act", especially in the face of the slick and deceptive industry ads (see video below) used to advance the measure...

Prop 26 Renaming Fees as Taxes Previously Rejected by CA Supreme Court

In 1991 California passed the Childhood Lead Poisoning Prevention Act, which described the numerous health hazards children face when exposed to lead toxicity and declared four state "goals," namely, (1) evaluating, screening, and providing case management for children at risk of lead poisoning, (2) identifying sources of lead contamination responsible for this poisoning, (3) identifying and utilizing programs providing adequate case management for children found to have lead poisoning, and (4) providing education on lead-poisoning detection and case management to state health care providers.

The act assessed fees against manufacturers to specifically offset the cost of mitigating the harm caused by their products.

In Sinclair Paint Co. v. State Bd. of Equalization, industry challenged the Act, contending that the "fee" was actually a "tax" and, as such, was not valid because it had not been passed by a 2/3 majority of the Legislature.

The argument was rejected by a unanimous California Supreme Court, which described the Act as containing a "bona fide regulatory fee":

It requires manufacturers and other persons whose products have exposed children to lead contamination to bear a fair share of the cost of mitigating the adverse health effects their products created in the community.

The court went on to note California's police powers were "broad enough to include mandatory remedial measures to mitigate the past, present, or future adverse impact of the fee payer's operations."

A question of who should pay

In his excellent article, Bill McGavern aptly described the issue at hand:

The core question raised by Prop 26 is: who pays? Who pays to clean up air pollution, oil spills and toxic waste? Who pays for the health consequences of tobacco and alcohol addiction, of lead poisoning and diesel exhaust? Exxon, Phillip Morris and the other special interests behind Prop 26 want you, the taxpayers, to pay. They want to get off the hook for mitigating the damage they do.

Where the ad (below) deceptively suggests that taxes are being leveled against ordinary citizens, Prop 26 would actually saddle taxpayers with costs that should be borne by industry polluters. Where the ad suggests that politicians pass these "fees" to pad their own expense accounts, in actuality the fees are designated for a specific purpose --- mitigating the damages these corporations cause.

Hopefully, there are only a select few naive enough to believe these corporations would pass the money they avoid paying in "fees" onto consumers, as opposed to over-inflated CEO salaries.

Seeing through the Prop 23 deception

While a Public Policy Institute of California (PPIC) poll reflects a much higher percentage of opposition to the other deceptive ballot measure, Prop 23, amongst college graduates, 55%, as compared to 37% for those with a high school diploma or less, a statement made by 45-year old truck driver, Tobias Martinez, in relation to the more recent Los Angeles Times/USC poll underscores the importance of exposing who the corporate backers are:

"When you see that they are funding it, it begins to look like this is something just to benefit them. They want to be able to produce more pollutants.... It doesn't make sense that stopping the improvement of air quality would create jobs."

The absurdity of calling Prop 23 a "California Jobs Initiative" was actually underscored by the gaping hole in the argument presented by Meg Whitman during the third Whitman/Brown debate. Whitman suggested that since only 3% of California jobs fall within the green technology sector, a one year moratorium on AB-36 --- which doesn't kick in until 2012 anyway --- should be imposed to save the other 97%.

Of course, the fact that 3% of the work force is now involved in the production of clean energy by no means suggests that 97% are engaged in the production of dirty energy. To the contrary, most jobs, doctors, nurses, police officers, fire fighters, teachers, food service workers, and on and on, have nothing to do with energy production. Clean energy technology offers a major source of new jobs that do not now exist.

Support for Prop 25

The same corporate wealth which is backing Prop 26, has funded a slick campaign against CA's Proposition 25. Despite that, the same Los Angeles Times/USC poll reveals that 58% of California voters support Prop 25, a measure that would replace the 2/3 voter requirement for budget passage in CA with a simple majority --- ending what we described in "Engineering California's Economic Collapse" as the ability of a minority of Republican legislators to hold the state hostage in order to advance their radical-right privatization schemes.

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The oil industry’s deceptive Yes on 26 ad follows...





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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



