United States: America Votes On Environment And Energy Ballot Initiatives

Last Updated: November 15 2018
Article by James J. Dragna, Ella Foley Gannon and Jeremy Esterkin

While control of Congress and the gubernatorial races garnered the most attention, the 2018 midterm elections also provided voters in several states the opportunity to craft environmental and energy policy directly through ballot initiatives. Carbon taxes, offshore drilling restrictions, renewable energy, and fracking limits were among the issues put to a vote in certain states on November 6.

Successful Ballot Initiatives

Florida, Amendment 9: Florida voters amended their state constitution to ban offshore drilling for oil and natural gas beneath all state waters. The ban prohibits drilling for either exploration or extraction purposes. The initiative will not affect the transportation of oil and natural gas products that were produced outside the state’s waters. Amendment 9 builds upon existing statutory limits on offshore drilling in Florida waters. Amendment 9 also added a constitutional ban on the use of e-cigarettes in indoor workplaces.

Nevada, Question 6: Nevada voters endorsed a plan that will mandate electric utilities to acquire 50% of their electricity from renewable resources by the year 2030. In Nevada, initiatives that propose constitutional amendments must be approved in two successive general elections. Thus, voters must approve Question 6 again in 2020. This initiative would supplant current Nevada law under which electric utilities must acquire 25% of their electricity from renewable resources by 2025. This initiative is similar to Proposition 127 in Arizona, which was not passed in this election.

Failed Ballot Initiatives

Alaska, Ballot Measure 1: After months of intense debate, voters rejected Ballot Measure 1 by a wide margin. The measure would have prohibited any projects or activities determined to cause significant and irreparable damage to selected fish habitats, and was aimed primarily at providing additional protection for salmon by creating a significantly more onerous permitting process for mines, dams, oil projects, and other developments in salmon habitats. Critics contended the initiative would have made additional development in Alaska difficult, if not impossible, particularly for oil and gas, infrastructure, and mining projects.

Arizona, Proposition 127: Arizona rejected a proposed constitutional amendment that would have mandated electric utilities to acquire 12% of their electricity from renewable resources by 2020. The percentage would have increased each year, reaching 50% by 2025. With the rejection of Proposition 127, the floor for renewable energy sourcing remains at 15% by 2025.

California, Proposition 3: California voters rejected a proposal to authorize $8.877 billion in general obligation bonds for water-related infrastructure and environmental projects. Most of the money would have gone to agencies devoted to improving the state’s water quality. Additionally, the initiative would have allocated $640 million to groundwater sustainability agencies and $500 million to help the state meet safe drinking water standards. Opponents derided the initiative’s cost—it was estimated that California would have spent $17.3 billion over 40 years when taking interest payments into account.

California, Proposition 6: With the rejection of this initiative, California will not repeal fuel tax and vehicle fee increases that were passed in 2017. The initiative also would have required voter approval to impose, increase, or extend future fuel taxes or vehicle fees. The failure of this initiative gives the left-leaning California legislature flexibility to modify these taxes and fees to address its policy priorities going forward.

Colorado, Proposition 112 and Amendment 74: Voters rejected a pair of initiatives that would have mandated that all new oil and gas development projects be a minimum distance of 2,500 feet from occupied buildings and other areas designated as vulnerable (Proposition 112), and would have compensated private property owners for any reduction in fair market value of their properties as a result (Amendment 74). Had it passed, Proposition 112 had the potential to make enormous portions of state land off-limits to oil and gas exploration. Voters were not ultimately persuaded by supporters’ arguments that the initiative was necessary to limit the expansion of fracking projects.

Montana, Initiative 186: Montana rejected new requirements for hard-rock mine permits. Initiative 186 would have required the Montana Department of Environmental Quality to deny permits for any new hard-rock mines if the mine's reclamation plan did not "contain measures sufficient to prevent the pollution of water without the need for perpetual treatment." Opponents of the initiative successfully argued that it would have added redundant regulations to a system that was already effective in protecting the state’s water.

Nevada, Question 3: Nevada rejected an initiative that would create “an open, competitive retail electric energy market,” prohibit the state from granting electrical-generation monopolies, and declare that consumers cannot be forced to purchase electricity from one provider. Supporters of the measure campaigned on the unpopularity of NV Energy, the state’s power monopoly, and emphasized the value to consumers of being able to choose from a variety of energy suppliers. Detractors, however, persuaded the state’s voters that the initiative would lead to higher energy prices and less government oversight, and that it would hinder the state’s push for clean energy. Nevada voters had previously approved Question 3 in 2016 by a wide margin.

Washington, Initiative 1631: Washington State rejected the creation of the nation’s first carbon fee (essentially a carbon tax). The initiative would have placed a fee of $15 per ton of carbon emissions, with an increase each year. By 2035, the fee would have been around $55 per ton, depending on inflation. This is the second time Washington voters have rejected a proposed carbon tax. Detractors claimed that the initiative would have harmed industry and forced companies to move out of state. Supporters have stated that they will lobby the Democratic-controlled legislature for a carbon tax in 2019.

Moving Forward

Of course, the success or failure of the midterm ballot initiatives is only one small part of the picture of environmental and energy legislation in America today. While no major legislation is expected at the federal level for the next two years, the results of the 2018 midterms are a harbinger of activity at the state level. Newly elected Democratic governors, especially those who will replace Republican governors, may advance environmental and energy policy in a more liberal direction. New Democratic majorities in state legislatures could also spur further policy changes.

Governor-elects like Jared Polis (D) of Colorado, J.B. Pritzker (D) of Illinois, Gretchen Whitmer (D) of Michigan, Michelle Lujan Grisham (D) of New Mexico, and Steve Sisolak (D) of Nevada all pledged to embrace clean energy initiatives. Several of them had 100% clean energy commitments as part of their platforms, and many others support ambitious renewable portfolio standards, net-metering incentives, and other climate policies. The abovementioned governor-elects have also pledged to devote resources to the clean energy economy, stressing the need to create good jobs and to decrease energy costs. Janet Mills (D) of Maine and Tony Evers (D) of Wisconsin are at the forefront of this push. Additionally, more regulations for water quality in Michigan could be on the horizon, as the new governor-elect has made clean water a key part of her platform.

Over the last two years, as the Trump administration has taken steps to roll back Obama-era regulations, states have led the way in advancing more progressive environmental and energy policies. We expect Democrats’ state-level pickups in the 2018 midterms to accelerate this trend.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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