No Solar Tax Pac v. Citizens for Solar and Energy Fairness (Ballot Issue) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
NO SOLAR TAX PAC, A NEVADA No. 70146
COMMITTEE FOR POLITICAL
ACTION,
Appellant,
vs.
CITIZENS FOR SOLAR AND ENERGY
FILED
FAIRNESS, A NEVADA COMMITTEE AUG 0 4 2016
FOR POLITICAL ACTION; AND
TRACIE K LINDEMAN
BARBARA CEGAVSKE, IN HER CLERK OF SUPREME COURT
BY
OFFICIAL CAPACITY AS THE DEPUTY CLERK if
NEVADA SECRETARY OF STATE,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order declaring a
referendum relating to net metering invalid and enjoining its placement
on the 2016 ballot. First Judicial District Court, Carson City; James Todd
Russell, Judge.
For the last two decades, Nevada law has required utility
companies to offer renewable energy system owners credits for excess
energy produced, through a program of net metering. Because net
metering apparently imposed an unfair financial burden on non-net
metering customers, see Hearing on SB 374 Before the Assembly
Commerce and Labor Comm., 78th Leg., at 47 (Nev., May 20, 2015), the
net metering program was capped at 3% of the total peak capacity of all
utilities in the state. Id.; see 2013 Nev. Stat., ch. 510, at 3341 (amending
NRS 704.773). During the last legislative session, however, the
legislature allowed for net metering beyond the cap, albeit at a tariff, and
placed regulatory authority over the net metering program with the Public
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Utilities Commission of Nevada (PUCN), charging that entity with
maintaining fairness between customers of the net metering program and
non-net metering customers and giving it certain tools to do so. 1 Hearing
on SB 374, at 47-48 (Nev., May 20, 2015); see 2015 Nev. Stat., ch. 379, at
2146-55. The PUCN has since set new net metering tariff rates and
charges.
Shortly after the new law was enacted, appellant No Solar Tax
PAC sought to repeal portions of it through a Petition for Referendum on
Certain Provisions Related to Net Metering Set Forth in 2015 Statutes of
Nevada, Chapter 379. The petition strikes language within Chapter 379
concerning the cap, the tariff, and the PUCN's administrative authority to
set net metering rates and charges. Respondent Citizens for Solar Energy
and Fairness then filed a complaint for declaratory and injunctive relief in
the district court challenging the petition. The district court agreed with
Citizens that the petition did not qualify as a referendum, but rather
constituted an initiative, and granted declaratory relief and an injunction,
not reaching the description of effect issues also raised by Citizens. No
Solar Tax has appealed, contesting the district court's interpretation of the
initiative and referendum provisions of Article 19 of the Nevada
Constitution. Citizens seeks to uphold the district court's order, either on
Tor example, the new law gives discretion to the PUCN to act in the
public interest, authorizing it to establish different rate classes for net
metering customers (including time-of-use rates not authorized for non-net
metering customers without their permission), to limit enrollment in net
metering, and to determine whether the tariff should be applied to
existing net metering customers. 2015 Nev. Stat., ch. 379, §§ 2.3 and 2.5,
at 2148-49.
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the basis of exceeding the referendum power under Article 19, or because
the petition's description of effect is defective.
Discussion
In ballot matters not involving disputed facts, this court
reviews de novo orders resolving complaints for declaratory and injunctive
relief. Nevadans for Nev. v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347
(2006). As we will consider constitutional questions only when necessary,
Miller v. Burk, 124 Nev. 579, 588-89, 188 P.3d 1112, 1118-19 (2008), we
start and, in this case, end with the description of effect arguments. 2
Under MRS 295.009(1)(b), petitions for referendum must Islet
forth, in not more than 200 words, a description of the effect of the
initiative or referendum if the initiative or referendum is approved by the
voters." The description of effect is intended to aid the people's right to
directly legislate by ‘``prevent[ing] voter confusion and promot[ing]
informed decisions." Beers, 122 Nev. at 939, 142 P.3d at 345 (internal
quotations omitted). It is what the voters see when deciding whether to
sign a petition, and we have emphasized that the description must
accurately inform petition signers "of the nature and effect of that which is
proposed." Stumpf v. Lau, 108 Nev. 826, 833, 839 P.2d 120, 124 (1992)
(emphasis omitted), overruled in part on other grounds by Herbst Gaming,
Inc. v. Heller, 122 Nev. 877, 888, 141 P.3d 1224, 1231 (2006). The failure
to do so will render the description defective. Id.
This court reviews descriptions of effect to determine whether
the description identifies the petition's purpose and how that purpose is to
2 This court will affirm a district court order reaching the correct
result, even if for different reasons. Sanchez v. Wal-Mart Stores, Inc., 125
Nev. 818, 823-24 n.2, 221 P.3d 1276, 1280 n.2 (2009).
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be achieved, in a manner that is "straightforward, succinct, and
nonargumentative," and not deceptive or misleading. Las Vegas Taxpayer
Accountability Comm. v. City Council, 125 Nev. 165, 183, 208 P.3d 429,
441 (2009) (internal quotations omitted). The description does not
necessarily need to explain every effect, or hypothetical effects, but it does
need to accurately set forth the main consequences of the referendum's
passage. Id.
Citizens asserts that the petition's description of effect is
misleading both in its explanation of the referendum's subject matter and
in its account of the consequences of approval. The petition's description
of effect states:
This referendum asks voters to approve or
disapprove portions of Chapter 379, Statutes of
Nevada (2015), that relate to net metering
customers (solar, wind, and hydro-electric
customers, collectively "green energy customers"),
such as homeowners with rooftop solar panels.
Previously, the Public Utilities Commission was
required to treat green energy customers the same
as standard residential customers and ensure that
they received a credit for the excess electricity
they produced at the retail rate. Recently, the
Commission imposed substantially increased fixed
charges on green energy customers, reduced the
value of the energy they generate, and made green
energy less affordable and even cost prohibitive for
some residential customers.
Signing this petition is a statement that you
support repealing the new green energy rates and
charges and preserving net metering as the
program has historically been implemented.
If a majority of voters disapprove of the new rates
and charges imposed on green energy, the bolded,
bracketed, and underlined provisions of this
referendum will be repealed. This means net
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metering systems, which produce renewable
energy, will continue to be available to energy
customers at reasonable rates.
As Citizens points out, this description fails to accurately
describe the referendum's purpose and the consequences of repealing the
referred language. First, the description identifies the PUCN-imposed
rates and charges as the referendum's topic, suggesting that the petition
will repeal the new rates and charges and indicating that the vote is to
approve or disapprove those rates and charges. But the rates and charges
are the result of an administrative order—they are not set out in Chapter
379—and the repeal of the referred language would do more than
eliminate the new rates and charges—it would remove the PUCN's power
to set specific net metering rates altogether, a consequence that is not
mentioned. Moreover, although the description states that the repeal of
the specified language would preserve the net metering program "as the
program has historically been implemented," that portrayal is not entirely
accurate, because a cap was previously placed on the amount of net
metering allowed, and this referendum concededly would not revive that
cap, thus allowing an unlimited amount of net metering. Describing this
effect is especially critical, as the form of the referendum, which asks the
voters to approve or disapprove only a specified selection of words and
sentences adopted by the 2015 legislature, does not show that a cap was in
place before the 2015 legislative changes. Finally, the description is
argumentative, using terms that are not in the statutory language, such
as "green energy," and asserting that the PUCN-set rates and charges are
"unaffordable and cost-prohibitive," while the rejection of the referred
language would allow the program to continue at a rate that is
"reasonable." As a result, the description is not only inaccurate and
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misleading, but also argumentative. Such a description is invalid, Las
Vegas Taxpayer, 125 Nev. at 183, 208 P.3d at 441, and we therefore
ORDER the judgment of the district court AFFIRMED.
L It.earf ena,„, C.J.
J.
Hardesty
J.
Ckwv J.
Cherry
CP.
Saitta
-.. J.
J.
J.
Pickering
cc: Hon. James Todd Russell, District Judge
White Hart Law
Attorney General/Carson City
Allison, MacKenzie, Ltd.
Lemons, Grundy & Eisenberg
Carson City Clerk
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