Taxes, Fees and “Something Else”: California’s Morning Star Decision

On April 6, the Third District California Court of Appeal decided Morning Star Packing Company v. California Air Resources Board, a case that challenged California’s cap-and-trade auction process as an unconstitutional tax because it was not enacted by two-thirds majorities in both chambers of the State Legislature, as required for new taxes by the California Constitution (propositions 13 and 26). The appeal pursued by Morning Star Packing Company against State Air Resources Board et al. was consolidated with a separate suit filed by the California Chamber of Commerce and by intervener National Association of Manufacturers. That decision is important not only to the future of the auction process, but also as to the key question of what is a tax as opposed to a fee or, in this case, as opposed to a “something else.”