Green fees

Prop 37 could let polluters off the hook

Liz Maaskant samples Valencia oranges to test for pesticide residue.

Liz Maaskant samples Valencia oranges to test for pesticide residue.

It’s 6 a.m., and Liz Maaskant is driving into a darkened warehouse district south of Broadway. A few blocks off the main street, she pulls into the parking lot of a produce distributor that’s buzzing with activity, even as the neighborhood around it continues to sleep.

“It’s going to be cold in there,” she warns, as she zips up her jacket and quickly unloads the tools of her trade from her white pick-up truck: a clipboard, a stack of paper grocery bags and a collapsible wire shopping basket with wheels.

Maaskant is a pesticide-use specialist who works for the state Department of Pesticide Regulation (DPR), making early morning trips to area produce dealers and bringing back samples to test for pesticide.

Her salary is paid in part by the fees that pesticide manufacturers pay to the DPR to study and mitigate the harmful effects of such chemicals.

But that program, and her job, face an uncertain future because of Proposition 37, a broadly worded state constitutional amendment that will appear on the ballot this November.

Prop. 37, which is backed primarily by oil, tobacco and alcohol companies, is intended to make it harder to impose fees on products to compensate for the damage they cause to the public health or the environment. The measure seeks to reclassify a whole array of fees that are intended to mitigate social or environmental damage as taxes, therefore requiring a two-thirds vote of the Legislature in order to impose new fees or reauthorize existing ones.

Proponents of Prop. 37 bill it as an elimination of “hidden taxes” and an end to governmental abuse of the regulatory fee system. But opponents have dubbed Prop. 37 the “Polluter Protection Act” and say it’s no more than an attempt by big business to shift the cost of pollution onto taxpayers.

“What’s at stake here is the whole principle that the polluter should pay,” said Bill Magavern of the Sierra Club, which is opposing the measure.

For example, the program that Liz Maaskant works for is funded by fees pesticide manufacturers pay to cover the costs of an array of research, training and inspection programs. That assessment has to be re-authorized by the Legislature in two years. DPR officials fear that if voters pass Prop. 37, they may not be able to get the two-thirds vote needed to continue that funding source. The Legislature could decide to take money from the general fund, or it could decide not to replace the money. Either way, pesticide manufacturers would be off the hook.

Prop. 37 backers say they have no problem with the pesticide program in particular, they simply want to close a legal loophole that they say allows the government to raise revenue for all kinds of programs that have little cause-and-effect relationship to the product being taxed.

“It opens the floodgates to whatever your imagination can come up with,” said Austin Lee with the Yes on Prop. 37 campaign.

For example, Yes on 37 campaign literature warns of the possibility of taxes on movie tickets because viewing films may lead to violent behavior or taxes on fast food because people litter.

Lee conceded that these particular examples have yet to materialize.

“It’s more of a preventative measure,” said Lee, explaining that when the economy goes bad again, state and local governments are likely to try to raise revenue with any number of specious fees. Oakland and Santa Cruz both assess a sort of nuisance fee on liquor stores to help fund law enforcement programs.

Lee added that where there is an obvious nexus between a product and a health or environmental problem, Prop. 37 would not apply. For example, fees assessed on oil companies to pay for clean-up of the gasoline additive MTBE would not be affected.

But analysis by the Senate Committee on Environmental Quality and other legislative staff suggests the measure is too ambiguous and too loosely worded to be sure what programs would be impacted.

“The only thing that is clear is that there will be endless litigation,” said Magavern. The end result, he added, would be a chilling effect on government’s ability to regulate in the public interest.

The measure’s two-thirds requirement applies to local government as well. In Sacramento, that could mean that any fee, from those levied on developers for habitat preservation, to fees paid by local industries to clean up air pollution could be threatened. Local fees that are deemed “taxes” under Prop. 37 would have to go before the public on a local ballot, and win 66 percent of the vote, a daunting prospect in any local election.

Prop. 37 is supported by the Chamber of Commerce, the California Manufacturers Association and the California Taxpayers’ Association. As of Sept. 30, backers had raised almost $2.5 million, including $350,000 from Phillip Morris Inc., $275,000 from Anheuser-Busch and $200,000 from Chevron.

By contrast, opponents have raised only $42,000. Prop. 37 is opposed by the American Cancer Society, the California Nurses Association and the Planning and Conservation League, among others.

Back at the produce warehouse, Maaskant moves briskly through the refrigerated rooms, where, with cold and stiffening fingers, she selects a random sample of the wares. This one location is inspected at least once a month, as are all area produce distributors.

Within a few minutes, she has filled a dozen bags with spaghetti squash, Valencia oranges and butter lettuce, among other things, which she will take to a lab down in Meadowview.

There, all of the produce will be liquefied and run through some 200 separate tests to ensure they contain no toxic pesticide residues.

Only about 1 percent of the vegetables tested ever turn out to be contaminated. If the lab finds pesticide residues, the food is immediately quarantined and the DPR begins an investigation to find the source of the contamination.

“Even if there is a problem, there’s usually no public health risk. Our food supply is really quite safe," said Maaskant. Safe, she says, because it is so routinely inspected.