Pennsylvania Governor Tom Wolf (Photo by Mark Makela/Getty Images)
The coming weeks are poised to demonstrate what happens when a governor seeks to enter a regional climate agreement without the legislative approval required by the state constitution, as well as what happens when legislators seek to pass a tax increase without the voter sign-off required by state law. Such efforts are underway respectively in Pennsylvania and Colorado
“The proposal currently on the table would add a fee to the purchase of a gallon of gas,” the Colorado Sun’s John Frank reported in January, just before the new session of the Colorado legislature kicked off. “The proposal to implement a fee would allow lawmakers to bypass the requirement for voter approval under the Taxpayer’s Bill of Rights because it doesn’t count as a tax hike.”
Frank added that the proposed “road-use fee would only apply to certain businesses that currently track driving patterns, such as ride-sharing services, and food- and package-delivery companies.”
The problem with state legislators in Denver thinking they can raise taxes or fees by themselves is that doing either requires voter approval in Colorado. Some Colorado lawmakers, however, seem to think they can impose a fee increase without voter approval, despite voters approving a ballot measure last November requiring just that for all fee increases.
While Colorado’s Taxpayer’s Bill of Rights, a constitutional amendment enacted in 1992, requires all tax increases to receive voter approval, fee increases now too require voter approval thanks to a new law approved by Colorado voters in 2020. In the November 2020 elections Colorado voters approved Proposition 117, a ballot measure that subjects fee increases to voter approval, just as tax hikes in Colorado have be subject to for nearly 40 years. Efforts to legislatively impose a new gas or road usage fee without voter approval appear to violate Proposition 117 both in letter and spirit.
“Colorado voters in November emphatically endorsed tougher rules to keep our state’s politicians from violating the spirit of the Taxpayer’s Bill of Rights, or TABOR,” writes Jesse Mallory, state director at Americans for Prosperity-Colorado. “Now, only a little over two months later, those politicians are cooking up a new plan to create an end run around TABOR that would cost the state’s drivers millions….This new fee — whose cost has yet to be determined — would be in addition to the state’s 22-cents per gallon gas tax (which is in addition to the federal 18.4 cents per gallon tax).”
At the same time that Colorado legislators are pondering whether to impose a fee increase without the voter approval required by law, Pennsylvania Governor Tom Wolf (D) is moving to unilaterally and, as it appears to many, unconstitutionally impose what is effectively a carbon tax on the Keystone State economy. Wolf is moving to do so by signing Pennsylvania onto a regional carbon cap and trade scheme known as the Regional Greenhouse Gas Initiative (RGGI) without seeking approval from the Pennsylvania state legislature. Kevin Mooney, an investigative reporter for the Commonwealth Foundation, a Harrisburg-based think tank, explains hour RGGI works:
“Widely known as RGGI, the compact includes 10 New England and Mid-Atlantic states where regulators place an upper limit or ‘cap’ on the amount of carbon dioxide emissions that power plants can emit. Energy companies then trade Co2 ‘allowances’ back and forth during quarterly auctions. The rationale behind cap-and-trade is to provide energy companies with financial incentives to reduce emissions. Companies that meet or exceed emissions targets may sell any excess allowances back to companies that have not.”
Governor Tom Wolf has made clear his intention to sign Pennsylvania up for RGGI, all of its requirements and associated costs, all without seeking an up or down vote for of approval from elected representatives in Harrisburg. In response, a bipartisan, near-veto-proof majority of Pennsylvania state legislators passed a bill requiring Wolf to get legislative approval in order to sign Pennsylvania onto the regional pact.
“The House version of the bill attracted seven of Wolf’s own Democrats as co-sponsors while the Senate version fell just one vote shy of a veto proof majority last September with five Senate Democrats voting against their governor,” Mooney reported. “In a bipartisan memo addressed to colleagues, the lead House sponsors describe Wolf’s planned regulatory scheme as a ‘major energy and fiscal policy decision, which must be made by the legislative branch of the government.’”
That bill requiring Governor Wolf to obtain legislative approval in order to join RGGI was ultimately, but not surprisingly, vetoed by Wolf.
“The idea of allowing elected representatives to debate and then vote on proposed regulations that would raise electricity prices, shutdown power plants and redirect economic activity to other states is a little too 18th century for Wolf,” Mooney added.
Based on testimony from legal experts, Governor Wolf’s move to unilaterally sign Pennsylvania up for a regional climate pact appears subject to legal challenge. As K&L Gates GTES -4.1% partner Anthony Holtzman testified to state legislators, Governor Wolf lacks the constitutional authority to sign Pennsylvania up for a regional agreement like RGGI without approval from state legislators.
“Because the Pennsylvania Constitution does not provide the Governor or any other Executive Department official or entity with the power to enter into interstate compacts or agreements, the General Assembly alone possesses that power,” Holtzman stated. “The General Assembly, in this regard, has plenary power, and therefore, unless the Constitution says otherwise, it has authority over and may enact legislation regarding any subject.”
While there are Colorado lawmakers who don’t feel the need to seek voter consent for higher fees even though that is required by state law, Governor Wolf doesn’t deem it necessary to seek the consent of elected state representatives before signing the entire commonwealth onto a regional pact that will drive up energy costs according to the Wolf administration’s own estimates.
“Wolf’s Department of Environmental Protection estimates that Pennsylvania’s annual RGGI revenue from auction proceeds will exceed $300 million annually and that the carbon tax will produce about $2.4 billion over the next decade,” Mooney reported.
“If our legislators spend half as much time developing innovative solutions to challenging problems as they do trying to finagle their way around voter-approval, they could get a lot more accomplished,” Mallory said of Colorado legislators’ latest ploy to obtain more tax revenue. That statement, or some version of it, could also apply to Governor Wolf’s use of time in Pennsylvania, as well as that of many politicians in other state capitals across the U.S.
I am Vice President of State Affairs at Americans for Tax Reform, a Washington-based advocacy and policy research organization founded in 1985 at the request of President