Legislature has the power to enact technology-forcing statutes

The California Legislature has broad authority to enact statutes requiring industries to implement cutting-edge technology in order to drive innovation. This is especially true where those innovations promote health and safety. In a decision last year, the Court of Appeal erred in concluding that it would be "illogical" to uphold a law requiring new firearm technology if that law were impossible to comply with when enacted. To the contrary, there is a long and successful history of requiring regulated industries to refine existing technologies and develop new technologies in order to better protect public health and safety.

In National Shooting Sports Foundation, Inc., et al. v. State of California, a trade association for the gun industry has challenged a 2007 gun control law requiring the use of a developing technology called "microstamping" in new models of semiautomatic pistols. Microstamping is a ballistics identification technology whereby a unique array of identifying characters are etched on a gun and then "stamped" onto each fired cartridge. This allows law enforcement to link a spent cartridge to the particular gun from which it was fired. The National Shooting Sports Foundation (NSSF) argues that the form of microstamping required by the Legislature was technologically infeasible when the law was enacted. NSSF challenged the law on the basis that compliance with the law was impossible, citing the Civil Code's maxim of jurisprudence that the law "never requires impossibilities." Civ. Code Section 3531. Following a ruling for NSSF in the Court of Appeal, 6 Cal. App. 5th 298 (2016), the California Supreme Court granted review in March, S239397.

Thirteen California environmental law professors in their individual capacities, including the author of this op-ed, filed an amicus brief (attached below) with the California Supreme Court to elaborate on the rare intersection between environmental law and gun control this case presents. Our brief argues that laws that are "impossible" to comply with when enacted are fully within the Legislature's authority. Legislatures routinely set strict standards that cannot be met using existing technology in order to drive industries to innovate. These "technology-forcing" frameworks are important implements in any legislature's toolkit. Our brief includes several successful examples at both the state and federal level where technology-forcing laws drove innovation in areas such as public health (exposure limits for carcinogens in plastics manufacturing) and safety (airbags in cars).

Technology-forcing has an especially important and effective track record in environmental law, where industries otherwise have little or no incentive to develop technologies to address negative externalities such as pollution. For example, the ubiquitous catalytic converter is directly traceable to technology-forcing standards for automobile tailpipe emissions developed first by California and later adopted at the national level. Despite growing evidence of the public health risks of automobile pollution, automakers had little incentive to control tailpipe emissions on their own. Congress responded in 1970 with -- as Sen. Edmund Muskie remarked at the time -- the "drastic medicine" of stringent new standards to "force the state of the art." As a result, patent activity in the automobile emissions control industry exploded, and VOC and NOx tailpipe emissions would drop more than 95 percent over the next 30 years. As Muskie noted, the responsibility of a legislature "is to establish what the public interest requires to protect the health of persons. This may mean that people and industries will be asked to do what seems to be impossible at the present time."

Technology-forcing is a fundamental legislative tool. The California Legislature chose here to require gun manufacturers, an industry faced with a public health crisis, to deploy a developing technology if they want to put new handgun models on the market in California. This choice was fully within the Legislature's well-established authority, and -- as our brief argues -- the Supreme Court should uphold the law.