                       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.




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                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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