Whether the District of Columbia’s Clean Air Compliance Fee

May Be Collected From the Federal Government

The District o f Columbia’s Clean Air Compliance Fee is a tax and may not be imposed on the federal 

government, because the D.C. Council lacks authority to impose taxes on the property of the United 

States.

January 23, 1996

M e m o r a n d u m O p i n i o n f o r t h e G e n e r a l C o u n s e l

G e n e r a l S e r v i c e s A d m i n i s t r a t i o n

This memorandum responds to your request for our opinion on whether the 

District of Columbia (“ District” ) may collect from the General Services Administration the Clean Air Compliance Fee (“ Clean Air Fee” or “ Fee” ) established 

by a District of Columbia statute, the Clean Air Compliance Fee Act of 1994 

(“ Act” ), D.C. Act 10-387, reprinted in 42 D.C. Reg. 86 (1995).1 As discussed 

below, we conclude that the District may not collect the Fee with respect to property owned by the United States. The Fee is a tax on such property, and such 

taxes are beyond the authority of the Council of the District of Columbia (“ D.C. 

Council” ) under the District of Columbia Self-Government and Governmental Reorganization Act, D.C. Code Ann. §§ 1-201 to 1-299.7 (1992) (“ Self-Government 

Act” ).

I.

The following finding in the Act sets forth the D.C. Council’s statement of 

the Act’s purpose:

By requiring payment from employment parking that is not subject 

to the parking sales and use tax and by allocating the revenues to 

the transit component of the [District’s] Clean Air Regulatory Program the [District] will simultaneously discourage the use of singleoccupancy vehicles for home-to-work travel while encouraging the 

use of car pools and transit, thereby reducing air pollution in compliance with requirements under the Clean Air Act.

Act §2(5). In its operative provisions, the Act requires owners of real property 

in the District containing parking spaces that are used for commuting more than

1 In considering this question, we have received the assistance o f the Tax and Environment and Natural Resources 

Divisions o f the Department of Justice and we have carefully considered the views submitted by the Office of 

the Corporation Counsel of the Government o f the District of Columbia. See Letter for W alter Dellinger, Assistant 

Attorney General, Office o f Legal Counsel, from Garland Pinkston, Jr., Acting Corporation Counsel, Office o f the 

Corporation Counsel (June 19, 1995) (“ Corporation Counsel Letter” ).

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Whether the District o f Columbia’s Clean Air Compliance Fee May Be Collected From the Federal

Government

two days per week and for which the District’s parking sales and use tax is not 

collected to register the spaces and pay a Clean Air Fee calculated at a rate of 

$20 per month per space. Id. §§3-5. Penalties are prescribed for failure by property owners to register employment parking spaces or to pay the Fee. Id. § 10. 

Property owners may seek reimbursement of the Fee from users of the parking 

spaces. Id. § 4(b).

The Act provides that revenues from the Fee “ shall be used to defray the cost 

of the transit component of the [District’s] Clean Air Regulatory Program.” Id.

§11. The Act’s legislative history makes it clear that the D.C. Council intended 

that the proceeds of the Fee would be used exclusively to subsidize mass transit: 

“ The Committee [of the Whole of the D.C. Council] directs that the revenue 

collected from this fee be used to fund the District’s payment to [the Washington 

Metropolitan Area Transit Authority (“ WMATA” )] as part of a mass transportation subsidy . . . .” Report to All Councilmembers, from David A. Clarke, 

Chairman, Re: Bill 10-610, the “Clean Air Compliance Fee Act o f 1994” at 10 

(July 5, 1994) (“ Council Report” ).

The threshold, and ultimately dispositive, question presented here is whether 

the Clean Air Fee, to the extent it applies to property owned by the United States, 

is a “ tax” or a “ fee.” This question would necessarily arise in connection with 

any fee imposed on the federal government by a state or local government, because the federal government is immune from state and local taxation. See

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819) (“ [T]he states have 

no power, by taxation or otherwise, to retard, impede, burden, or in any manner 

control the operations of the constitutional laws enacted by Congress to carry into 

execution the powers vested in the general government.” ). It has long been established that a state or local government cannot impose a tax upon the United States, 

its agencies, or its instrumentalities “ without a clear congressional mandate.” 

Kem-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954).

The “ tax or fee” question arises in a unique context here because the federal 

government has divided the legislative authority for the District between Congress 

and the D.C. Council. As the District of Columbia Court of Appeals has summarized:

The United States Constitution vests Congress with the exclusive 

legislative authority for the District of Columbia. U.S. Const, art.

I, §8, cl. 17. In 1973, Congress passed the Self-Government Act 

to “ relieve Congress of the burden of legislating upon essentially 

local District matters.” D.C. Code 1981, §l-201(a). Subject to its 

retention of the ultimate legislative authority over the District of 

Columbia, Congress delegated certain specific legislative powers to 

the District of Columbia government. Id. . . . In addition [to “ expressly reserv[ing] its right ‘to exercise its constitutional authority

13
Opinions o f the Office o f Legal Counsel in Volume 20

as legislature for the District, by enacting legislation for the District 

on any subject’ Congress placed several explicit limitations on 

the Council’s legislative authority.

D istrict o f Columbia v. Greater Washington Cent. Labor Council, 442 A.2d 110, 

113 (1982) (quoting Self-Government Act, § 1-206), cert, denied, 460 U.S. 1016 

(1983).2

As in the cited District of Columbia Court of Appeals case, “ [t]he specific 

limitation[ ] which [is] pertinent to the issue before us [is] enumerated in § 1- 

233.” Id. Subsection (a)(1) of §1-233 provides that “ [t]he Council shall have 

no authority to . . . [ijmpose any tax on property of the United States or any 

of the several states.” Thus, if the Clean Air Fee is a “ tax on property of the 

United States,” then the D.C. Council lacked the authority to impose it.3

II.

A tax is an “ enforced contribution to provide for the support of government.” 

United States v. LaFranca, 282 U.S. 568, 572 (1931). In distinguishing between 

government taxes and fees, courts have identified two different types of fees: 

“ user or service fees” and “regulatory fees.” The D.C. Council imposed the 

Clean Air Fee on owners of parking spaces in the District and directed that revenues from the Fee be used exclusively to subsidize the mass transit system. For 

the reasons set forth below, we conclude that the Fee does not qualify as either 

a “ user or service fee” or a “regulatory fee” but is instead an “ enforced contribution to provide for the support of government.” Id. 4

2 This Office has consistently expressed the sam e understanding o f the limitations on the D.C. Council’s authority. 

For example, in 1976 we opined that the legislative power of the D.C. Council

is subject to careful reservations by the Congress of its own constitutional powers and to specific limitations 

included in title VI of the Home Rule Act. Indeed, the very grant of power in section 404(a) begins with 

the words, “ (sjubject to the limitations specified in title VI o f this Act, . . Thus there are real limits 

on the Council’s authority to act.

The most specific o f those title VI limitations are set forth in Section 602 [D.C. Code 1981, §1-233] 

of the Home Rule Act.

Memorandum for Hugh M. Durham, Legislative Counsel, Office of Legislative Affairs, from Mary C. Lawton, Deputy 

Assistant Attorney General, Office of Legal Counsel, Re: District o f Columbia Enrolled Bill B-l-137, the District

of Columbia Shop-Book Rule Act at 2 (Feb. 18, 1976).

3 The foregoing discussion indicates that principles of federal immunity from local taxation and limitations on 

the D.C. Council’s authority are both implicated by the “ tax or fee” question. If the Clean Air Fee is a “ tax,” 

then under either principle only Congress could authorize the imposition of the tax on the United States. It is important 

to recognize, however, that congressional authorization of the District’s tax would require two analytically distinct 

steps, whereas congressional authorization of other state and local taxes requires only one. Congress may waive 

federal immunity against a properly enacted state or local tax, acting solely in its capacity as legislature for the 

United States. On the other hand, for Congress to authorize the District’s Clean Air Fee, it must both waive federal 

immunity and either authorize the D.C. Council to impose the tax (acting as legislature for the United States) or 

impose the tax directly itself (acting as legislature for the District).

4 In light of this conclusion, there is no need to consider the argument that the Clean Air Fee falls within the 

scope o f the waiver o f federal immunity against state and local taxation and regulation set forth in section 118 

of the federal Clean Air Act, 42 U.S.C. §7418. See Corporation Counsel Letter at 3-7. For even if the Fee satisfies 

the terms of that waiver, it may not be imposed on the United States because its enactment was beyond the D.C.

14
A.

Central to the analysis of whether a government levy is a user or service fee 

or instead a tax is whether it is imposed to collect payment for a benefit or service 

provided by the government to the specific payor as a result of a voluntary act 

by the payor, or whether instead the payment is viewed as a mandatory contribution for the general support of the government. The clearest Supreme Court guidance on whether an exaction is a tax or a user or service fee is set forth in National

Cable Television Ass’n v. United States, 415 U.S. 336 (1974). In considering 

whether a fee imposed by the Federal Communications Commission was a tax 

and therefore beyond the FCC’s authority, the Court opined:

Taxation is a legislative function, and Congress, which is the sole 

organ for levying taxes, may act arbitrarily and disregard benefits 

bestowed by the Government on a taxpayer and go solely on ability 

to pay, based on property or income. A fee, however, is incident 

to a voluntary act, e.g., a request that a public agency permit an 

applicant to practice law or medicine or construct a house or run 

a broadcast station. The public agency performing those services 

normally may exact a fee for a grant which, presumably, bestows 

a benefit on the applicant, not shared by other members of society. . . . A “ fee” connotes a “ benefit” ....

Id. at 340-41 (footnote omitted).

In United States v. City o f Huntington, W.Va., 999 F.2d 71 (4th Cir. 1993), 

cert, denied, 510 U.S. 1109 (1994), the court applied a facts-and-circumstances 

test to determine whether a so-called “ municipal service fee,” consisting of a 

“ fire service fee” and a “ flood protection fee,” imposed upon property owners 

in Huntington, West Virginia, including federal agencies, was a tax upon the

Council’s authority under the Self-Government Act. Waivers of immunity apply only to properly enacted state and 

local measures.

Nor is there a need to ascertain the scope of the Clean Air Act waiver of federal immunity in order to conclude 

that there is no basis for construing that waiver as an implied repeal of the Self-Government Act’s limitation on 

the authority of the D.C. Council. The District did not make this implied repeal argument in its submission to 

this Office, see Corporation Counsel Letter, but the argument was analyzed in a Congressional Research Service 

memorandum concerning the Clean Air Fee, see Memorandum by George Costello, American Law Division, Congressional Research Service, Re: Application o f District o f Columbia " Clean Air Compliance Fee Act" to the Federal

Government at 6-7 (Mar. 24, 1995). We believe the argument has no merit. It is a well-established principle o f 

statutory construction that “ repeals by implication are strongly disfavored.” United Stales v. Fausto, 484 U.S. 439, 

452 (1988). ‘‘[A] later statute will not be held to have implicitly repealed an earlier one unless there is a clear 

repugnancy between the two.” Id. at 453 (citations omitted). There is no repugnancy between the Self-Government 

Act and the subsequently enacted section 118 o f the Clean Air Act. They address fundamentally different subjects: 

the latter addresses federal immunity (i.e., the relationship between the federal government and state and local governments), while the former addresses D.C. Council legislative authority (i.e„ the relationship between Congress and 

the D.C. Council). Moreover, neither the text nor the legislative history of Clean Air Act section 118 contain the 

slightest indication that during its deliberations on waiving federal immunity Congress gave any thought to the legislative authority of the D.C. Council.

Whether the District o f Columbia’s Clean Air Compliance Fee May Be Collected From the Federal

Government

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Opinions of the Office o f Legal Counsel in Volume 20

United States or was instead a fee for services rendered. The court stated that 

“ [u]ser fees are payments given in return for a government-provided benefit. 

Taxes, on the other hand, are ‘enforced contribution[s] for the support of government.’ ” Id. at 74 (quoting United States v. LaFranca, 282 U.S. at 572). The 

court held that the municipal service fee was “ a thinly disguised tax” because 

the federal agencies’ liability for the fee “ arises from [their] status as property 

owners and not from their use of a City service.” Id.

In United States v. City of Columbia, Mo., 914 F.2d 151 (8th Cir. 1990), the 

court considered whether a levy charged by a city as part of the price of water 

and electricity was a tax or a fee. Even though the levy was described in the 

applicable city ordinance as being in lieu of a tax, the court held that the levy 

was part of the utility rate and was unlike a tax in many significant respects: 

it was not contained in a section dealing with the city’s taxing power; it was 

charged to the customer as part of the price of electricity and water; and failure 

to pay the levy would result in termination of services rather than subject the 

customer to penalties. As for the levy’s application to the federal government, 

the court said that

[t]he United States’ obligation to pay the [levy arose] only from 

its consensual purchase of the City’s [water and electricity]; it d[id] 

not arise automatically, as does tax liability, from the United States’ 

status as a property owner, resident, or income earner. When the 

United States purchases water, electricity, and related services, and 

then pays the utility bill, it does so as a vendee pursuant to its 

voluntary, contractual relationship with the City. The City imposes 

the charge not in its capacity as a sovereign, but as a vendor of 

goods and services.

Id. at 155-56 (citing National Cable Television, 415 U.S. at 340-41).

The results in Columbia and Huntington represent straightforward applications 

of the Supreme Court’s approach in National Cable Television. In Columbia, the 

levy was held not to be a tax because the federal agency voluntarily used certain 

amounts of electricity and water and the levy was for the service actually provided 

to the agency. In contrast, in Huntington the assessment was not based on actual 

fire and flood services that had been provided on request, but rather represented 

a charge to property owners for fire and flood protection available to all inhabitants of the city; thus, it was a tax — a mandatory contribution for the support 

of government services provided to the entire public.

The Clean Air Fee cannot qualify as a user or service fee because the revenue 

from the Fee is used to provide an undifferentiated benefit to the entire public. 

The Fee is indistinguishable for present purposes from the assessment to support 

community-wide services that was held to be a tax in Huntington. It is not a

16
charge for any identifiable District services provided specifically to the owners 

of parking spaces upon their request. Rather, it is a charge to support the mass 

transit services the District provides to all inhabitants (permanent and temporary) 

of the District. Such services, as was the case with the “ [f]ire and flood protection 

and street maintenance [services at issue in Huntington,] are core government services” available to all inhabitants of the city. Huntington, 999 F.2d at 73.

The court’s rationale in Huntington is fully applicable here: If the argument 

that the Clean Air Fee is a user fee rather than a tax were to be accepted, then 

“ virtually all of what now are considered ‘taxes’ could be transmuted into ‘user 

fees’ by the simple expedient of dividing what are generally accepted as taxes 

into constituent parts, e.g., a ‘police fee.’ ” Id. at 74. Taxes imposed on property 

owners are traditionally used to support government services for the whole community, and the Clean Air Fee is no different.

Moreover, in contrast to the levy held to be a fee in Columbia, the United 

States’ obligation to pay the Clean Air Fee does not arise from any consensual 

purchase of a good or service from the District, but rather arises automatically 

from its status as a property owner. See Columbia, 914 F.2d at 155. The United 

States is in no respect acting “ as a vendee pursuant to its voluntary, contractual 

relationship with the [District].” Id. at 156. In short, the District has “ impose[d] 

the charge . . . in its capacity as a sovereign, [not] as a vendor of goods and 

services.” Id. Also in contrast to the Columbia fee, the District will enforce the 

Fee through civil penalties, not the denial of any supposed benefit that the Fee 

makes possible.

B.

The case law concerning whether a government levy is a regulatory fee or a 

tax was summarized by then-Chief Judge Breyer of the First Circuit Court of 

Appeals in San Juan Cellular Telephone v. Public Serv. Comm’n, 967 F.2d 683 

(1st Cir. 1992):

Courts have had to distinguish “ taxes” from regulatory “ fees” 

in a variety of statutory contexts. . . . They have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee 

at the other. The classic “ tax” is imposed by a legislature upon 

many, or all, citizens. It raises money, contributed to a general fund, 

and spent for the benefit of the entire community. The classic “ regulatory fee” is imposed by an agency upon those subject to its 

regulation. It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more 

expensive. Or, it may serve such purposes indirectly by, for examWhether the District o f Columbia’s Clean Air Compliance Fee May Be Collected From the Federal

Government

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Opinions o f the Office o f Legal Counsel in Volume 20

pie, raising money placed in a special fund to help defray the agency’s regulation-related expenses.

Courts facing cases that lie near the middle of this spectrum have 

tended . . . to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed 

by a general tax, or whether it provides more narrow benefits to 

regulated companies or defrays the agency’s costs of regulation.

Id. at 685 (citations omitted).

We believe that the Clean Air Fee is considerably closer to being a paradigmatic 

tax than a paradigmatic regulatory fee. In Judge Breyer’s terms, the Fee “ is imposed by a legislature [the Council] upon many, or all, citizens [all owners of 

employment parking spaces]. It raises money, contributed to a general fund, and 

spent for the benefit of the entire community [the account funding the District’s 

subsidy for mass transit, which is a service available to the entire community].” 

Id. In other words, the Fee is imposed by a legislative body on property owners 

to raise revenue; it is not imposed by a “ [regulatory] agency upon those subject 

to its regulation.” Id. Moreover, the fact that the Fee applies only if the District’s 

sales and use tax has not been imposed already on the parking service for the 

vehicle also suggests that the Fee is a tax, because it indicates that the Fee is 

intended to complement the parking tax. Indeed, the D.C. Council indicated as 

much in its report on the Act when it stated that “ [t]he fee will only be imposed 

on persons who do not currently pay the District’s parking tax.” Council Report 

at 10.

The District’s argument that the Clean Air Fee is a regulatory fee is as follows:

We conclude that the District is required by the Federal Clean 

Air Act to reduce, eliminate and control sources of air pollution 

and that the monetary exaction imposed by the Clean Air Compliance Fee Act is designed to encourage the use of mass transit and 

decrease air pollution associated with automobile traffic. Inasmuch 

as the primary purpose of this exaction is the control and abatement 

of air pollution, we conclude that this exaction is a “ fee” not a 

“ tax.”

Corporation Counsel Letter at 3.

As a threshold matter, it is open to question whether it is correct to view the 

Fee’s primary purpose as being to regulate air pollution by automobile traffic rather than to raise revenue for mass transit that benefits the general public. The fact 

that the proceeds of the Fee are to be allocated entirely to support the mass transit 

system strongly suggests that the primary purpose of the Fee is to raise revenue 

to support government operations. See Act §11; Council Report at 10. In addition, 

although discouraging the use of automobiles for commuting no doubt does serve

18
air pollution regulatory purposes, the actual reduction in automobile commuting 

that can be expected here, as a result of the imposition of the Fee, is indirect 

and speculative compared to the direct and immediate revenue impact and support 

for mass transit that will result.5

In any event, even assuming that the Clean Air Fee falls in the middle of the 

fee-tax spectrum, following Judge Breyer’s focus on the revenue’s ultimate use 

leads to the conclusion that this exaction is a tax. To accept the District’s characterization would require that we conclude either that subsidizing mass transit is 

a regulation-related cost of the District’s air pollution regulatory program or that 

the assumed regulatory impact of the Fee on air pollution (as a result of reduced 

automobile commuting and increased use of mass transit) is sufficient by itself 

to render it a regulatory fee notwithstanding the remaining aspects of the Fee 

that all suggest it is a tax. With respect to the first of these alternatives, while 

we do not doubt that encouraging the use of mass transit can have a beneficial 

effect on air pollution, the costs of a separate, non-regulatory government program 

that benefits the public as a whole are not the kind of costs that courts have 

viewed as defrayable by regulatory fees. See supra pp. 17-19. The subsidization 

of mass transit is not a regulatory cost, but rather a general government expense 

typically defrayed by taxes: subsidization of mass transit “ provides a general benefit to the public, of a sort often financed by a general tax.” San Juan Cellular

Telephone, 967 F.2d at 685.

As for the second alternative, the simple response is that ascribing a regulatory 

purpose to a tax does not mean that it is not a tax. Taxes often have a significant 

regulatory purpose: “ [A] tax is a powerful regulatory device; a legislature can 

discourage or eliminate a particular activity that is within its regulatory jurisdiction 

simply by imposing a heavy tax on its exercise.” Massachusetts v. United States,

435 U.S. 444, 455-56 (1978). See also National Cable Television A ss’n v. United

States, 415 U.S. 336, 341 (1974) (“ The lawmaker may, in light of the ‘public 

policy or interest served,’ make the assessment heavy if the lawmaker wants to 

discourage the activity; or it may make the levy slight if a bounty is to be bestowed .... Such assessments are in the nature of ‘taxes’ . . . .” ). Thus, the 

fact that discouraging automobile commuting is one of the stated reasons for the 

Clean Air Fee does not convert it from a tax into a regulatory fee when its revenue-raising purpose in support of separate, non-regulatory government operations 

is so direct and substantial. The foregoing analysis is supported by the decision

s See, e.g., Statement of Art Lawson, Administrator, Office of Mass Transit, Department of Public Works, Before 

the Council of the District of Columbia Committee of the Whole at 1-2 (May 18, 1994). (“ Although these measures 

will not on their own result in measurable reductions of automobile use within the District o f Columbia it is the 

direction setting that is most important here. Additionally, these measures are important because they will generate 

desperately needed revenues to help fund the District’s FY 1994 and 1995 WMATA operating budget. . . . [T]he 

District’s subsidy to support WMATA was reduced by $7.2 million in the current budget year. This reduction left 

WMATA underfunded by approximately $7 million. The Committee on Regional Authorities proposed to make up 

the $7 million by implementing a series of transfer charges and fare increases on District Metrobus service. . . . 

[Councilwoman Mason] has proposed that the revenue from these bills be used to fund the WMATA deficits thereby 

making the fare and transfer charge proposals unnecessary. ’ ’). See also id. at 6.

Whether the District o f Columbia’s Clean Air Compliance Fee May Be Collected From the Federal

Government

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in San Juan Cellular Telephone and the cases cited in Judge Breyer’s opinion 

in that case. In San Juan, the court held that a three percent of gross revenues 

charge imposed on a telephone company by the Puerto Rico Public Service Commission as a condition of the company’s authorization to provide cellular telephone service was a regulatory fee. Judge Breyer stressed that the fee was assessed 

by a regulatory agency, was placed in a special fund, and was not to be used 

for a general purpose but rather to defray specific costs of regulation (investigative 

expenses, hiring of services, and acquisition of equipment). 967 F.2d at 686. His 

opinion distinguished the case before the court, as well as other cited examples 

of regulatory fees,6 from those cases that had held charges to be taxes because 

the proceeds from the charges were used for general purposes or to raise general 

revenue.7

Schneider Transport, Inc. v. Cattanach is particularly instructive for our purposes. In that case, it was argued that truck registration fees imposed on trucking 

companies were “ regulatory licensing fees.” The Seventh Circuit rejected this 

argument, finding that “ [although not denominated as such, the registration fees 

are imposed for revenue-raising purposes, a characteristic of any tax . . . [, and] 

[t]he fees are deposited in a segregated fund, the state transportation fund, for 

transportation purposes, including highway construction.” 657 F.2d at 132 (citations omitted). Thus, as with the Clean Air Fee, the charge went beyond regulatory 

purposes and raised revenue to support a separate, non-regulatory government program.

Finally, we observe that our conclusion that the Clean Air Fee is not a regulatory 

fee does not conflict with Judge Breyer’s statement that a regulatory fee “ may 

serve regulatory purposes [by] deliberately discouraging particular conduct by 

making it more expensive.” 967 F.2d at 685. The fact that some bona fide regulatory fees serve regulatory purposes in this way does not mean, of course, that 

every charge with a regulatory purpose that raises revenue beyond what would 

defray regulatory costs must be viewed as a fee rather than a tax. As discussed 

above, supra p. 19, taxes often have regulatory purposes. See Massachusetts v.

United States, 435 U.S. at 455—56; National Cable Television Ass’n v. United

States, 415 U.S. at 341.

Judge Breyer cited only one case involving this type of regulatory fee. 967 

F.2d at 685 (citing South Carolina ex rel. Tindal v. Block, 717 F.2d 874 (4th 

Cir. 1983), cert, denied, 465 U.S. 1080 (1984)). Block concerned a charge imposed

6 See, e.g., Union Pac. R.R. v. Public Util. Comm’n, 899 F.2d 854, 856 (9th Cir. 1990) (assessment helped defray 

utility com m ission's “ cost of performing [its] regulatory duties'*); Mississippi Power & Light Co. v. United States

Nuclear Regulatory Comm’n, 601 F.2d 223 (5th Cir. 1979), cert, denied, 444 U.S. 1102 (1980) (NRC charge helped 

pay costs of environmental reviews, hearings, and administrative and technical support).

7 See id. at 685 (citing Schneider Transport, Inc. v. Cattanach, 657 F.2d 128 (7th Cir. 1981) (charge on truckowners used to pay for highway construction), cert, denied, 455 U.S. 909 (1982); Keleher v. New England Tel.

& Tel. Co., 947 F.2d 547 (2d Cir. 1991) (public utility companies using city streets charged fee tied to utility’s 

gross revenues and not cost of regulating utility’s use of city streets), Robinson Protective Alarm Co. v. City o f

Philadelphia, 581 F.2d 371, 376 (3d Cir. 1978) (charges on central aJarm companies based on gross revenues and 

“ added to the public fisc, rather than applied exclusively to contractual services ow ed" to the companies)).

20
by the Secretary of Agriculture on the proceeds of all milk sold commercially. 

The charge was remitted to the Commodity Credit Corporation (“ CCC” ) as part 

of a milk price support program administered for the Secretary by the CCC. The 

purposes of the charge were “ to encourage dairy farmers to reduce milk production and to offset a portion of the cost of the milk price support program.” 717 

F.2d at 876. Although Block principally concerned Administrative Procedure Act 

challenges to the Secretary’s imposition of the charge on milk sales, the court’s 

opinion also briefly discussed the allegation that the Secretary’s charge was a 

tax and therefore was unconstitutional for two reasons: it did not originate in the 

House of Representatives, and Congress cannot delegate its authority to tax. The 

court easily concluded that the charge was not a tax because it was authorized 

by Congress pursuant to its commerce power rather than taxing power, citing 

Wickard v. Filbum, 317 U.S. I ll (1942), for the proposition that “ [t]he imposition of assessments have long been held to be a legitimate means of regulating 

commerce.” 717 F.2d at 887.8

Block does not support the position that the Clean Air Fee is a regulatory fee, 

because the charge addressed in that case differed from the Fee in two fundamental respects: it was imposed on regulated parties, not property owners, and, 

most significantly, the revenue raised from the charge was used only for the specific regulatory program of which it was a part, and to which the regulated parties 

were subject, not to support government operations in a separate, non-regulatory 

program that benefits the public generally.

C.

The “ tax or fee” cases cited by the Office of the Corporation Counsel, see

Corporation Counsel Letter at 2, included both user or service fee cases and regulatory fee cases. The cited cases are consistent with our conclusion that the Clean 

Air Fee is a tax and not a fee. For example, in Valandra v. Viedt, 259 N.W.2d 

510 (S.D. 1977), the court held that a “ mobile home license fee” was principally 

a tax because “ 85% of the fee collected [allocated to the county highway and 

bridge fund] is for revenue purposes and bears no relationship to the cost of administering the [mobile home] registration system,” and only the fifteen percent 

allocated “ to defray costs of titling, registration and for unusual use of the highway” was arguably a fee. Id. at 512. Similarly, the Clean Air Fee is allocated 

to support a mass transit system and is not tied to any governmental service or

8 The two cases cited in this regard by the Block court each held that administrative sanctions imposed against 

farmers for exceeding marketing quotas were authorized under the commerce power and did not constitute taxes. 

See United States v. Stangland, 242 F.2d 843, 848 (7th Cir. 1957); Rodgers v. United Stales, 138 F.2d 992, 994 

(6th Cir. 1943). The central rationale of the cases was that the charge in question “ [was] not a charge on property 

for the purpose of raising revenue. Revenue may incidentally arise therefrom, but that fact does not divest the regulation of its commerce character and render it an exercise of the taxing power.” Rodgers, 138 F.2d at 995. In contrast, 

the Clean Air Fee’s production of revenue to subsidize mass transit is anything but incidental: the Fee is a charge 

on property for the purpose of raising revenue.

Whether the District o f Columbia's Clean Air Compliance Fee May Be Collected From the Federal

Government

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Opinions of the Office o f Legal Counsel in Volume 20

benefit specifically provided to owners of parking spaces. See also Radio Common

Carriers v. State, 601 N.Y.S.2d 513, 516 (N.Y. 1993) (“ Section 1150 . . . is 

in effect a tax. The monthly one dollar fee is not related to licensing or other 

services performed for the [fee-payor] by the state .... The money collected 

is added to the general state fisc . . . .” ).

Those of the cases cited by the Corporation Counsel that held that the charge 

in question was a fee generally differ from the present case in the critical respect 

that they involved payments to defray costs attributable to regulated parties. For 

example, in holding that a ten dollar criminal history records check charge paid 

by potential firearms buyers was a fee, the court in In re Shooters Emporium,

Inc., 135 B.R. 701 (Bnkr. S.D. Fla. 1992), stated that

the nature of the payment is voluntary. Payment is required only 

if one desires to purchase a firearm. The purpose of the payment 

is for private benefit. Only people who pay the fee may purchase 

a firearm. Furthermore, this payment is clearly designed to recoup 

the costs of regulation from the people regulated, rather than to 

raise general revenues. This payment can not be reasonably construed to be an involuntary exaction for a public purpose.

Id. at 702-03.9 In contrast to these cases, the Act makes clear that the Clean 

Air Fee is allocated to support mass transit; it does not defray costs attributable 

to parking space owners or any other regulated parties.

III.

For the reasons set forth above, we conclude that the Clean Air Fee is a tax. 

To the extent that the Fee is imposed on property owned by the United States, 

it is a “ tax on property of the United States” and therefore beyond the authority 

of the D.C. Council under the Self-Government Act. The District may not collect 

the Fee from the federal government.

TERESA WYNN ROSEBOROUGH 

Deputy Assistant Attorney General

Office of Legal Counsel

' 9 See also City o f Vanceburg, Ky. v. Federal Energy Regulatory Comm’n, 571 F.2d 630, 644 (D.C. Cir. 1977) 

(dam-use charges are “ exacted against a licensee in exchange for a privilege which the licensee has requested or 

applied for and from which the licensee derives a special benefit” ), cert, denied, 439 U.S. 818 (1978); Strater

v. Town o f York, 541 A.2d 938 (Me. 1988) (ten dollar charge for harbor usage); Memphis Retail Liquor Dealers’

Ass'n v. City o f Memphis, 547 S.W .2d 244 (Tenn. 1977) (emphasizing uniqueness of regulation of alcoholic beverage 

industry and common practice of regulating that industry through license taxes, holding that five percent inspection 

fee imposed on retailers was a fee even though it produced revenues that were 200 times the cost o f regulation).

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