The California Supreme Court rejected an effort from state Attorney General Kamala Harris to minimize the statewide effect of a recent Court of Appeals decision regarding tiered water rates.
In early June, Harris wrote the Supreme Court justices and requested that they depublish the Fourth District Court of Appeal’s opinion in Capistrano Taxpayers Association v. the City of San Juan Capistrano.
On Tuesday, July 22, without any explanation, the Supreme Court merely issued the following decision: “Depublication request denied.”
Depublication would not have overridden the San Juan case, but it would have limited its use in future water rate cases throughout the state.
“Depublication requests are very rarely granted, so the Supreme Court’s denial of the depublication request is not surprising,” said Michael Lauffer, chief counsel of the State Water Resources Control Board. “Conservation pricing is an important tool to limit wasteful water use. While the Court of Appeal’s decision makes it more difficult for local agencies to justify their water conservation rates, the decision does not foreclose conservation pricing.
“The State Water Board will continue to work on implementation of the governor’s April 1 Executive Order and will continue to assist local agencies in developing effective and lawful conservation pricing mechanisms,” he added in his email.
In her letter, Harris said, “The board is concerned that unnecessary and overbroad language in the opinion may lead to misuse of the opinion in future litigation and could have an immediate chilling effect on urgently needed water conservation efforts.”
In April, the appellate court upheld a lower court’s decision, which invalidated the city’s rate structure because it did not comply with Proposition 218. While the court upheld the right of imposing a tiered rate structure, Prop 218, which state voters approved in 1996, requires special districts and government agencies to establish fees based on the cost of providing the service.
When it denied a petition for rehearing, the appellate court modified its opinion to clarify that a special district or governmental agency could still use tiered rates without basing them on the costs of providing service if they obtained the approval of the voters consistent with Proposition 218.