MOORLACH UPDATE — First Veto — September 24, 2016

While serving as the Orange County Treasurer-Tax Collector, I sponsored numerous bills to improve the State’s investment and accounting codes. I had local Republican legislators author and carry them. And, I enjoyed my experiences of testifying before committees in Sacramento. I am proud to say that every one of these bills made it through the process to the Governors’ desks and all of them were signed into law.

Today, I have bad news. My streak just ended. I’ve already had two bills signed this year, SB 1255 and SB 1265 (see MOORLACH UPDATE — Attaboy — August 5, 2016 august 5, 2016 john moorlach and MOORLACH UPDATE — SB 1265 — August 18, 2016 august 18, 2016 john moorlach). But, Governor Brown decided to return SB 1463 without a signature this afternoon. It is a bill I’ve been carrying to make improvements for Laguna Beach and cities in similar circumstances (see MOORLACH UPDATE — Moving Down the Line — August 31, 2016 august 31, 2016 john moorlach).

The Daily Journal, a publication for attorneys, provides a great review of SB 1463 in the piece below and clearly educates the reader of the challenges that we faced in moving it through the Legislature.

Here’s the Governor’s veto message:

To the Members of the California State Senate:

I am returning Senate Bill 1463 without my signature.

This bill requires the Public Utilities Commission to prioritize areas that have increased fire hazard associated with overhead utility facilities.

Since May of last year, the Commission and CalFire have been doing just that through the existing proceeding on fire-threat maps and fire-safety regulations. This deliberative process should continue and the issues this bill seeks to address should be raised in that forum.


Edmund G. Brown, Jr.

Unfortunately, I believe the vetoing of this much needed bill continues to put our public safety at risk. When I was Chairman of the Board of Supervisors, the 2008 Freeway Complex Fire was a traumatic experience. One I will never forget. CalFire has had since 2007 to update maps. The Fire Map 1 exercise took nearly nine years! That’s why a legislative approach was pursued. It’s a crazy way to run a state, but how else can we get things moving?

At this time, the PUC is focused on drafting the Fire Map 2 Work Plan, which will provide the road map for the development and adoption of Fire Map 2. Essentially, the Fire Map 2 Work Plan will determine how the boundaries of a new High Fire-Threat District will be delineated. Two proposals have been put forth to the Technical Panel as possible methodologies for the development of Fire Map 2.

Additionally, Timothy Kinney, the assigned Administrative Law Judge for the proceeding, has provided direction that the Fire Safety Technical Panel Workshop shall discuss compliance with SB 1463 for the development of the Fire Map 2 work plan, which is projected to be finalized this calendar year. Consequently, this is a small victory (and a reason to allow me to speculate on the Governor’s motives).

All stakeholders including local governments, Critical Infrastructure Protections and Investor Owned Utilities had embraced SB 1463 as a provision that would dedicate Cal Fire to the proceeding and help ensure that local communities had a seat at the table when crucial decisions about public safety were under discussion.

This critical change has now slipped away. Local communities have been pushed away from having a seat at the table. And the Governor has provided yet another example of contempt for the cities in California (he’s had a long-standing dislike for the California League of Cities).

Just last month, another power pole was knocked down on Laguna Canyon Road. It shut down this main artery for more than half of the day! The good news is that it did not start a fire, this time. We have not always been so lucky, and the danger is ever-present. A photo is provided directly below.

There’s my rant. I guess I don’t like seeing this year’s perfect batting average get down-graded to .667. Don’t worry. I’ll be better, not bitter.

As California burns, costs trump safety

David Huard, co-chair of the energy practice group at Manatt, Phelps and Phillips, specializes in regulatory, contract and appellate matters related to the energy industry and maintains offices in Los Angeles and San Francisco.

Wildfires in the West, and particularly in California, have been a recurring story as the severe drought has made the area even more susceptible to major fire events. Most recently the Blue Cut fire in Southern California forced the evacuation of 80,000 people, destroyed over 100 homes as well as more than 200 structures and threatened a major electric transmission line serving Southern California.

Utility operations have been identified as a cause of California wildfires. When a utility pole falls to the ground or comes into contact with vegetation, an ignition spark, in dry brush, quickly grows into a catastrophic blaze. Utility poles in California are owned by electrical utilities — but over three-quarters of these poles are subject to joint use arrangements with communication companies. It is estimated that of these poles, at least one-quarter fail to comply with existing safety standards and such unsafe utility equipment can lead to wildfires.

In 2007, 9,000 separate wildfires burned over a million acres of California land. Included among these was the Malibu Canyon Fire, which started when strong Santa Ana winds caused three utility poles to fall to the ground and spark a flame that would eventually burn over 4,500 acres of land. The poles responsible for the fire supported equipment for an electric utility and communication providers that were forced to pay multimillion dollar settlements following the damage.

In 2015, the Butte Fire burned over 70,868 acres after a tree came into contact with a utility power line. In 2016, a brush fire in the Calabasas area burned 500 acres after a truck collided with a utility pole causing a transformer to fall to the ground and explode. Altogether, accounts of utility-caused wildfires have become all-too regular.

In 2007, the devastating impact of wildfires, as well as the fear of future such events, prompted the passage of legislation to address the problem.

One such bill directed the California Public Utilities Commission to open a rulemaking to adopt regulations to reduce the fire hazards associated with overhead power lines and communication facilities. The commission determined that it first needed to develop accurate maps of high fire-hazard areas across the state. This effort was planned to occur in two stages: Fire Map 1 would depict the environmental conditions associated with power-line fires and Fire Map 2 would depict utility fire-hazard zones where new fire safety regulations would apply. Once these maps were in place, the commission would draft new fire safety regulations.

In the eight years since the Legislature first called on the commission to address utility-caused wildfire, only Fire Map 1 has been completed and limited interim regulations put in place. Thus, the commission has only looked at the physical and environmental features that lead to wildfire, such as wind, rainfall and vegetation — but, has yet to examine the impacts of wildfire, such as human injury or fatality, property damage, or the cost of fighting fires. Consequently, the commission has a map that identifies undeveloped areas but is only just beginning to develop a map that will identify the people and property this proceeding was designed to protect.

The Fire Map 2 process is now underway with nearly weekly meetings and endless workshops. The hoped-for result is a final map that depicts those areas of the state that are most at risk for a catastrophic and damaging wildfire. After that, the commission will finally turn to the work of developing final fire-safety regulations.

Most observers hold out little hope for aggressive action or timely regulations from the commission process. For starters, participation at the commission is an expensive and time-consuming effort for any unregulated entity. Despite the obvious impact on local communities, and recent outreach efforts by the commission, only one city, Laguna Beach, itself a victim of utility-caused fires, is participating in the process. But here, as with other major rulemakings at the commission, the process is dominated by investor-owned utilities who rely on ratepayer dollars to fund their participation, as well telecommunications companies with their industry groups.

Some utilities, such as SDG&E, are showing initiative as they work to develop Fire Map 2 and move the commission process along. Others, particularly the telecommunications industry, seem bent on delaying or defeating any real steps — presumably to avoid incurring the individual costs of new safety measures or a share of these costs with the electric utilities.

However, it can be expected that all affected utilities will oppose new proposed safety regulations. For example, nearly all utilities oppose conservative steps such as undergrounding utility facilities, even in populated areas — citing cost considerations which they allege exceed the preventive benefits. For many, fire-safety conversations should be steered by the potential increase in public safety rather than concerns about the cost a respective utility may bear. Unfortunately, given present domination of commission proceedings, utility concerns about the cost of operations drive the discussion.

Meanwhile, local communities frustrated with the commission process turned to Sacramento for legislation that would provide immediate directions as to fire-safety regulations and refocus the commission’s efforts towards public safety. Yet here too, advocates were met with an alliance of affected utilities who joined together in opposition. SB 1463, introduced by state senator John Moorlach, was opposed by many of the major utilities and the telecommunications industry when the bill’s authors attempted to jump-start the commission process and provide some guidance on acceptable steps to mitigate the threat of utility-caused wildfires. In the end the bill was stripped of its most meaningful provisions giving only general direction to the commission to prioritize communities, like Laguna Beach, that are subject to conditions that increase fire dangers associated with overhead utility facilities. The legislation also requires the commission to describe how the concerns of local government have been addressed throughout the process.

Everyone in California recognizes that wildfires pose a significant threat to life and property. And everyone agrees that the root causes of wildfires should be addressed. However, one step below the surface of this clear-cut call to action lies an unending regulatory process apparently dominated by interests more concerned with cost than safety. While California continues to burn, it becomes difficult to maintain hope for timely and effective regulation that will reduce the well-recognized threat of utility-caused wildfire.


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