San Diego Gas & Electric Co. v. San Diego County Air Pollution Control District

In this case we hold the San Diego County Air Pollution Control District (district or APCD) may recover actual costs of operation which are not reasonably identifiable with specific industrial polluters (indirect costs) by apportioning them among all monitored polluters according to a formula based on the amount of emissions discharged by a stationary pollution source. In reaching this result, we find the “emissions-based” formula adopted by the district is neither a prohibited “special tax” (see Cal. Const., art. XIII A, § 4 (Prop. 13)) nor beyond the district’s statutory authority. For the following reasons we affirm the judgment.

Factual and Procedural Background

San Diego Gas & Electric Company (SDG&E) unsuccessfully petitioned for mandate challenging a change in the San Diego County APCD’s method of apportioning the costs of its permit programs among stationary sources of pollution required to obtain operating permits under Health and Safety Code section 42311. As explained more fully below, section 42311 was amended in 1982 to allow a local air pollution control district to fully (rather than partially) recover the costs of its permit programs through permit fees,…