Utility Calls It Unconstitutional : SDG&E; Sues to Block New Emissions Fee Plan

San Diego County’s largest industrial polluter, San Diego Gas & Electric Co., filed a lawsuit Wednesday seeking to block implementation of a new emissions fee system that would require the utility to pay the biggest single share of the county’s air-monitoring costs.

SDG&E; alleges that the fee schedule, approved by the Board of Supervisors in May in their guise as the county Air Pollution Control District, is an unconstitutional tax, illegal because it was not approved by the voters.

The fees were imposed on a 12-month test basis to make up for the county’s $400,000 cut in the district’s budget during the year that began July 1. Based on the amount of pollution its plants emit, SDG&E; would pick up about one-fourth of the shortfall under the new fee schedule, according to Richard Smith, deputy director of the pollution district.

Small industry and environmental groups supported the fee system. And when representatives from a broad spectrum of groups, including heavy industry, met after the fees were adopted to review their implementation, they agreed that the emission-based fees were fair if they were legal, Smith said.

A legal test of the permit fees was expected, he said.

Under the county’s old fee structure, the county’s 12 largest polluters generated a third of all air pollution but paid only 10% of the fees collected for monitoring emissions, according to a coalition of environmental groups and small businesses that studied the permit system. Small businesses produced less than half the pollution, but paid 87% of the fees.

Other pollution districts also have adopted permit fees based on emission levels, though only the South Coast Air Quality Management District in Los Angeles received a specific OK from the California Legislature for such a fee schedule, Smith said.

County attorneys have issued an opinion saying the San Diego district’s plan is legal, he added.