Untitled California Attorney General Opinion ( 1996 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-214
of :
: September 16, 1996
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE CALIFORNIA AIR RESOURCES BOARD has requested an opinion on the
following questions:
1. May an air pollution control district adopt a regulation specifying a number of
alternative means of emission reduction from which employers must choose, where one of the options
is to implement an employee trip reduction plan?
2. May an air pollution control district adopt a regulation requiring a parking
subsidy equivalency program, mandated by state law, as part of a required employer-based trip
reduction plan or as one of a number of alternative means of emission reduction from which employers
must choose?
CONCLUSIONS
1. An air pollution control district may adopt a regulation specifying a number of
alternative means of emission reduction from which employers must choose, where one of the options
is to implement an employee trip reduction plan, provided that the alternatives presented are reasonably
practicable.
2. An air pollution control district may not adopt a regulation requiring a parking
subsidy equivalency program, mandated by state law, as part of a required employer-based trip
reduction plan or as one of a number of alternative means of emission reduction from which employers
must choose.
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ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Health & Saf. Code, ''
39000-44257)1 to provide "an intensive, coordinated state, regional, and local effort to protect and
enhance the ambient air quality of the state" (' 39001). Local and regional air pollution control
districts ('' 40000-41267; "districts") have primary responsibility for nonvehicular sources of air
pollution, while the State Air Resources Board ('' 39500-39905; "Board") has primary responsibility
for the control of air pollution caused by motor vehicles. ('' 39001, 40000.)
We have previously examined the powers and responsibilities of a district to control
nonvehicular sources of air pollution in various circumstances. (See, e.g., 76 Ops.Cal.Atty.Gen. 11
(1993); 75 Ops.Cal.Atty.Gen. 256 (1992); 74 Ops.Cal.Atty.Gen. 196 (1991).) In this opinion we
consider the authority of a district to implement trip reduction ("ridesharing") plans for employers and
provide parking subsidy equivalency programs. We generally conclude that although a district may
adopt a trip reduction plan as one of several alternatives for employers to choose in reducing
automobile emissions, it may not enforce a parking subsidy equivalency program.
Before addressing the specifics of the two questions, we note that districts are
authorized to adopt and enforce rules and regulations to achieve and maintain state and federal ambient
air quality standards within their respective jurisdictions. ('' 40001, 40702.) Section 40716,
subdivision (a) provides in pertinent part:
"In carrying out its responsibilities pursuant to this division with respect to the
attainment of state ambient air quality standards, a district may adopt and implement
regulations to accomplish both of the following:
"(1) Reduce or mitigate emissions from indirect and areawide sources of air
pollution.
"(2) Encourage or require the use of ridesharing, vanpooling, flexible work
hours, or other measures which reduce the number or length of vehicle trips."
For purposes of section 40716, "indirect . . . sources of air pollution" would include a place of
employment which attracts vehicular sources of air pollution. (See 76 Ops.Cal.Atty.Gen., supra,
12-13.)
Pursuant to subdivision (a) of section 40717, a district is required to "adopt, implement
and enforce transportation control measures for the attainment of state or federal ambient air quality
standards to the extent necessary to comply with section 40918, 40919, or 40920." "Transportation
control measures" are defined as "any strategy to reduce vehicle trips, vehicle use, vehicle miles
1
All section references are to the Health and Safety Code unless otherwise indicated.
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traveled, vehicle idling, or traffic congestion for the purpose of reducing motor vehicle emissions." ('
40717, subd. (g).) Sections 40918, 40919, and 40920 prescribe a set of measures to be included in the
attainment plans for districts having moderate, serious, and severe air pollution, respectively. (See 76
Ops.Cal.Atty.Gen., supra, 14, 18.)2 Increasingly stringent transportation control measures are required
for each successive district category. ('' 40918, subd. (c); 40919, subd. (d); 40920, subd. (c).) In
order to meet specified requirements to reduce the rate of increase in passenger vehicle trips and
vehicle miles traveled per trip, and to achieve a specified average vehicle occupancy during weekday
commute hours, a number of districts have adopted and enforced employer-based trip reduction plans.
In 1995, however, the Legislature enacted section 40929 (Stats. 1995, ch. 607, ' 1) as
follows:
"(a) Notwithstanding Section 40454, 40457, 40717, 40717.1, or 40717.5, or
any other provision of law, a district, congestion management agency, as defined in
subdivision (b) of Section 65088.1 of the Government Code, or any other public agency
shall not require an employer to implement an employee trip reduction program unless
the program is expressly required by federal law and the elimination of the program
will result in the imposition of federal sanctions, including, but not limited to, the loss
of federal funds for transportation purposes.
"(b) Nothing in this section shall preclude a public agency from regulating
indirect sources in any manner that is not specifically prohibited by this section, where
otherwise authorized by law."3
Amendments to federal law in December of 1995 have made trip reduction plans optional, while
requiring equivalent emissions reductions. (See 42 U.S.C. ' 7511a (d)(1)(B).) Such plans are thus no
longer "expressly required by federal law" as set forth in section 40929.
Additionally in 1995, with specific regard to the South Coast Air Quality Management
District ('' 40400-40540), the Legislature amended section 40454 (Stats. 1995, ch. 858, ' 1) to read as
follows:
"(a) Notwithstanding Section 40457, 40716, or 40717, or subdivision (c) of
Section 40717.5, the south coast district shall not adopt or enforce any rule or
regulation that would require any employer to submit a trip reduction plan.
2
An additional category for districts having extreme air pollution was added in 1992. (See ' 40920.5.)
3
Sections 40454 and 40457 deal with requirements for trip reduction plans in the south coast district. Section
40717 concerns transportation control measures in general, and sections 40717.1 and 40717.5 set forth requirements
which must be met by a district in adopting a rule or regulation that imposes a trip reduction measure on employers or
other indirect sources.
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"(b) The south coast district may require employers with 100 or more
employees at a single worksite to provide ride-matching information and transit
information to employees at that worksite."
It is apparent from the enactment of section 40929 and amendment of section 40454 in
1995 that mandatory trip reduction plans may no longer be required for employers. Yet these recent
legislative directives have not eliminated the requirement for districts to attain state and federal ambient
air quality standards.
1. Optional Trip Reduction Plans
Initially we are asked to determine whether section 40454 or section 40929 prohibits a
district from adopting a regulation specifying a number of alternative means of emission reduction from
which employers must choose, where one of the options is to implement a trip reduction plan. For
present purposes, the operative word in each statute is "require." Would a district regulation "require"
the employer to implement a trip reduction plan if it includes a trip reduction option as one of a number
of alternative means of emission reduction from which employers could choose? We conclude that
neither statute precludes adoption of a district regulation having such an optional provision.
In reaching this conclusion, we are guided by well-established principles of statutory
construction. "In construing a statute, our principal task is to ascertain the intent of the Legislature."
(Yoshisato v. Superior Court (1992) 2 Cal. 4th 978, 989.) "In determining intent, we look first to the
language of the statute, giving effect to its ``plain meaning.'" (Kimmel v. Goland (1990) 51 Cal. 3d 202,
208-209.) "``[C]ourts are no more at liberty to add provisions to what is therein declared in definite
language than they are to disregard any of its express provisions.'" (Wells Fargo Bank v. Superior
Court (1991) 53 Cal. 3d 1082, 1097.) A court may not rewrite a statute by inserting thoughts that have
been omitted or by omitting thoughts that have been inserted. (Gillett-Harris-Duranceau, etc. v.
Kemple (1978) 83 Cal. App. 3d 214, 219; 78 Ops.Cal.Atty.Gen. 192, 195 (1995).) "[A] court . . . will
not readily imply an unreasonable legislative purpose," but rather "a practical construction is preferred."
(California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal. 4th 1133, 1147.)
"It is well settled that statutes should be construed in harmony with other statutes on the same general
subject." (Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal. 3d 651, 665.)
"Both the legislative history of the statute and the wider historical circumstances of its enactment may
be considered in ascertaining the legislative intent." (Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal. 3d 1379, 1387.)
Applying these principles of construction to the language of sections 40454 and 40929,
we observe that the term "require" connotes some form of compulsion. "Require" normally means "to
impose a compulsion or command upon (as a person) to do something: demand of (one) that
something be done or some action taken: enjoin, command, or authoritatively insist (that someone do
something)." (Webster's New Internat. Dict. (3d ed. 1971) p. 1929.) Thus, the plain meaning of
sections 40454 and 40929 is that employers may not be placed under a compulsion to utilize trip
reduction plans as part of a district's effort to attain emissions reduction standards.
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Here it is proposed that an employer would be afforded a choice of various emissions
reduction strategies, with a trip reduction plan being one option. Other options might include
financing the demolition of old vehicles, repairing high-emitting vehicles owned by employees,
converting its own vehicles or off-road equipment to clean fuels, purchasing emissions reduction credits
from stationary sources, funding a motor vehicle air pollution reduction project such as a shuttle bus
service, or implementing any other program that would attain an amount of emissions reduction
equivalent to that obtainable through implementing a trip reduction plan. As long as the other options
offered to the employer are reasonably practicable, it cannot be said that the employer is, in any
meaningful way, being compelled or ordered to implement a trip reduction plan. The employer would
remain free to choose an emission reduction strategy which best suits its circumstances.
There is some evidence from the legislative histories of sections 40454 and 40929 that
the authors of the 1995 legislative changes intended to completely eliminate the use of employer-based
trip reduction plans. However, when looking at a statute's legislative history, courts generally will not
consider the individual views of the author, because there is no guaranty that other legislators shared the
same view of the statutory purpose. (California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal. 3d 692, 699-700; Malick v. Department of Transportation (1993) 17 Cal. App. 4th 1819,
1932, fn. 1.) Also, a careful examination of the two legislative histories in question, when read in full,
does not support a construction of sections 40454 and 40929 which contradicts the plain meaning of the
statutory language.
We conclude that sections 40454 and 40929 allow districts to include a trip reduction
plan as one of the options which employers may choose in meeting ambient air quality standards,
provided that the other alternatives specified are reasonably practicable.4
2. Parking Subsidy Programs
We are next asked to determine whether a district may adopt and implement a
regulation requiring a parking subsidy equivalency program, mandated by state law, either as part of a
required employer-based trip reduction plan or as one of a number of alternative means of emissions
reduction from which employers must choose. A parking subsidy equivalency program, also know as
a "parking cash-out program," is defined and mandated by the Legislature under the terms of section
43845:
4
A separate question was presented by the requester concerning the effect of the 1995 legislation upon preexisting
district regulations which required employers to implement trip reduction plans. As of January 1, 1996, the effective date of
the 1995 legislative changes, the South Coast Air Quality Management District may not "enforce any rule or regulation that
would require any employer to submit a trip reduction plan." (' 40454.) No district may "require an employer to implement
an employee trip reduction program . . . ." (' 40929, subd. (a).) Accordingly, preexisting district regulations which required
employers to implement trip reduction plans would be void and unenforceable as of January 1, 1996. (See IT Corporation v.
Solano County Bd. of Supervisors (1991) 1 Cal. 4th 81, 90; People ex rel. Deukmejian v. County of Mendocino (1984) 36
Cal. 3d 476, 484-485.) The effect of any current federal restrictions on the removal of a trip reduction plan from a state
implementation plan is beyond the scope of this opinion. (See 42 U.S.C. ' 7511a(d)(1)(B).)
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"(a) In any air basin designated as a nonattainment area pursuant to Section
39608, each employer of 50 persons or more who provides a parking subsidy to
employees, shall offer a parking cash-out program. ``Parking cash-out program' means
an employer-funded program under which an employer offers to provide a cash
allowance to an employee equivalent to the parking subsidy that the employer would
otherwise pay to provide the employee with a parking space.
"(b) A parking cash-out program may include a requirement that employee
participants certify that they will comply with guidelines established by the employer
designed to avoid neighborhood parking problems, with a provision that employees not
complying with the guidelines will no longer be eligible for the parking cash-out
program.
"(c) As used in this section, the following terms have the following meanings:
"(1) ``Employee' means an employee of an employer subject to this section.
"(2) ``Parking subsidy' means the difference between the out-of-pocket amount
paid by an employer on a regular basis in order to secure the availability of an
employee parking space not owned by the employer and the price, if any, charged to an
employee for use of that space.
"(d) Subdivision (a) does not apply to any employer who, on or before January
1, 1993, has leased employee parking, until the expiration of that lease or unless the
lease permits the employer to reduce, without penalty, the number of parking spaces
subject to the lease.
"(e) It is the intent of the Legislature, in enacting this section, that the cash-out
requirements apply only to employers who can reduce, without penalty, the number of
paid parking spaces they maintain for the use of their employees and instead provide
their employees the cash-out option described in this section."
As set forth in section 43845, an employer who provides a parking subsidy to employees must grant "a
cash allowance to an employee equivalent to the parking subsidy . . . ." May a district add such a
program as part of a mandatory trip reduction plan for employers or as an option for employers? We
conclude that it may not.
As for a mandatory trip reduction plan, we have concluded in answer to the first
question that sections 40454 and 40920 preclude districts from enforcing mandatory trip reduction
plans for employers. Thus, a district may not enforce the terms of section 43845 by instituting or
enforcing a parking subsidy equivalency program as part of a required employer-based trip reduction
plan.
With respect to making a parking subsidy equivalency program an "option" as one
"alternative" means of emissions reduction from which employers may "choose," we find no statutory
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basis for such treatment. Section 43845 is clear in its language--the program is mandatory.
Employers do not have the option of ignoring its directive. A parking subsidy equivalency in cash is
not something to be chosen, rather it is compelled by the Legislature.
Moreover, it is not the responsibility of the districts to enforce the requirements of
section 43845. This statute is part of a number of miscellaneous provisions ('' 43800-43845)
administered by the Board. (See also '' 40000, 43000, 43000.5; 76 Ops.Cal.Atty.Gen., supra, 12.)
Under the provisions of section 43016, civil penalties not to exceed $500 per vehicle may be imposed
by the Board for a violation of section 43845, with the penalties deposited in a state fund "available to
the state board to carry out its duties and functions" (' 43015). In addition, the Board may seek
injunctive relief in enforcing the requirements of section 43845. Section 43017 states:
"The state board may enjoin any violation of any provision of this part, or of
any order, rule, or regulation of the state board, in a civil action brought in the name of
the people of the State of California, except that the state board shall not be required to
allege facts necessary to show, or tending to show, lack of adequate remedy at law or to
show, or tending to show, irreparable damage or loss."
Neither section 49454 nor section 40929 precludes the Board from administering a statutory mandate
such as contained in section 43845. The Board is not the "south coast district" (' 40454, subd. (a)),
and the parking subsidy equivalency program is required by the Legislature (' 43845) rather than by the
Board for purposes of section 40929, subdivision (a).
Administrative agencies have only the powers which are conferred upon them by
statute, and an act in excess of those powers is void. (Ferdig v. State Personnel Board (1969) 71
Cal. 2d 96, 103-104; Rich Vision Centers, Inc. v. Board of Medical Examiners (1983) 144 Cal. App. 3d
110, 114.) Of course, an agency's powers are not limited to those expressly granted in the legislation;
rather, it is well settled that administrative officials "may exercise such additional powers as are
necessary for the due and efficient administration of powers expressly granted by statute, or as may
fairly be implied from the statute granting the powers." (Dickey v. Raisin Proration Zone No. 1 (1944)
24 Cal. 2d 796, 810; see also Stackler v. Department of Motor Vehicles (1980) 105 Cal. App. 3d 240,
245.) Here the districts have no express powers with respect to the administration or enforcement of
the parking subsidy equivalency program required by section 43845. Any implied powers in that
regard belong to the Board, not the districts.
We therefore conclude that the Board, and not the districts, has the responsibility for
enforcing the parking subsidy equivalency program of section 43845.
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