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IN THIS ISSUE – “A Modern Compact for California Employers”
- Governor, Legislators, Private Sector, Unions Tussle Over Defining “Employee”
- California Public Utilities Commission Make-Over Proposed
- “SPLATS” – California Deploys New Forest Management to Fight Record Wildfires
- Cell Phones…A Way of Life, But @ What Price?
- “The Produce Hunter” Offers Farmers’ Market Tips
Capital News & Notes (CN&N) harvests California legislative and regulatory insights from dozens of media and official sources for the past week, tailored to your business and advocacy interests. Please feel free to forward.
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FOR THE WEEK ENDING AUG. 30, 2019
The Legislature’s 2019 session will end in two weeks and no issue will have more impact on California’s workers and economic future than Assembly Bill 5 – even if it doesn’t pass.
AB 5 would place in law, with some exceptions, a landmark state Supreme Court decision that sharply tightened the legal parameters governing whether workers can be independent contractors or must become payroll employees.
The 2018 Dynamex decision, named for a Southern California package delivery service found to have illicitly classified its drivers as contractors, applies a three-factor test to workers’ status.
It sent shockwaves through some of the state’s fastest growing economic sectors that depend on so-called “gig workers,” with on-call ride services Uber and Lyft the most obvious examples.
The gig economy’s loss, however, could be organized labor’s gain by potentially recasting several million workers as payroll employees and thus making them eligible for union organization.
Assemblywoman Lorena Gonzalez, a Democrat from San Diego and a former union official, introduced AB 5 as a way of controlling what exceptions, if any, would be granted to the court’s three-factor test. So far, she and her union allies have been very stingy, giving just a few categories of work a pass, such as doctors, insurance and real estate salespersons, and barber and beauty shop workers.
On one level, AB 5 is a philosophical conflict over whether the employment model that emerged in the 20th Century – workers paid salaries or hourly wages with employer-supplied medical care, pensions and other benefits – should prevail, or give way to the more flexible and potentially lucrative, but much less certain, gig model that has contributed to 21st Century California’s explosion of entrepreneurial output.
Unions say misclassification of workers is a rampant form of servitude while employers say forcing them to put all workers on the payroll will depress job creation and the economy.
On another level, it’s an old-fashioned political shootout, with both labor and gig economy giants using all of the usual tactical weaponry.
Demonstrations, including a big one this week by Uber and Lyft drivers who want to become payroll employees, op-ed pieces, slanted academic studies and high-powered lobbyists are among the tools being used. Lyft recruited former U.S. Sen. Barbara Boxer as a mouthpiece, while Uber’s legal (and perhaps political) adviser is Tony West, the brother-in-law of Boxer’s successor, Senator and presidential candidate Kamala Harris, who has endorsed AB 5.
Gonzalez and union leaders are in the driver’s seat, as it were, because if nothing happens, the Dynamex ruling takes full effect and battles over classification will be fought in court company by company and job by job. Their position is so powerful that unions have a formal process, including an “AB 5 exemption request form,” that employers seeking relief must navigate.
Given the power that unions wield in the overwhelmingly Democratic Legislature, passage of AB 5 with minimal exemptions would seem to be a slam dunk. It’s already made it through the Assembly easily.
However, there’s another factor: Freshman Gov. Gavin Newsom, a former businessman and employer himself, has close ties to the San Francisco Bay Area’s gig-heavy tech economy but also enjoyed strong union support in his campaign last year.
Newsom knew a battle over Dynamex was coming and during his inaugural address called for “a new modern compact for California’s changing workforce.” But he’s ducked reporters’ questions about AB 5 and is clearly seeking a compromise.
Ultimately, he will control what happens – or doesn’t – and be held accountable for its impacts.
What do Uber, mobile homes and sewers have in common?
That’s not the first line of a bad joke. It’s a serious question we Californians should be asking ourselves, because the answer is that all three are regulated by the California Public Utilities Commission.
The list of items under CPUC purview is long and varied, and frankly, somewhat random. In addition to the above, the Public Utilities Commission regulates natural gas pipelines, telecommunications, and broadband and emergency reporting.
But wait, as late-night TV commercials beckon, there’s more.
Last year, the Public Utilities Commission stepped in to intervene in wildfire prevention, high-speed rail, the electrification of transportation lines, the electric grid, battery storage on that grid, emergency preparedness, clean energy for disadvantaged communities, broadband access for rural communities and water on the Monterey Peninsula.
Given that laundry list of responsibilities, it is difficult to fathom that the Public Utilities Commission unsurprisingly started simply when it was created by voters in 1911 as a way to check the power of railroad monopolies.
Over time–thanks particularly to decades of our elected officials passing off politically tricky issues–the Public Utilities Commission has grown into a catchall for the state’s thorniest problems.
With an annual budget of $1.6 billion, the commission employs more than 1,300 people and continues to grow each year. It has become the largest and most powerful regulating agency in the state, bar none.
That’s not good, not for the Public Utilities Commission, the entities it regulates, and most importantly not for the people of California. Instead of focusing on core issues and overseeing them well, the agency has been inefficient in handling its broad spectrum of responsibilities.
On top of that, there has been plenty of discussion about whether the Public Utilities Commission is too cozy with those it regulates. For example, the agency has faced stiff criticism for failing to enforce electric companies’ wildfire prevention plans. Other critics says its outdated licensing processes aren’t up to managing the pace of innovation.
The truth is it’s simply not possible for one agency to be an expert in such a smorgasbord of areas. That’s why the Public Utilities Commission should focus on public utilities and threats to public safety. Period.
Relieving the California Public Utilities Commission of some of its extraneous duties fits nicely with Gov. Gavin Newsom’s stated mantra of streamlining government. Earlier this spring, he floated the idea of overhauling the agency from the top down. That’s a wise idea that Gov. Newsom’s predecessors have toyed with but not followed through on.
Now is the perfect time for Gov. Newsom and the Legislature to follow up on this concept, given the retirement of former president, Michael Picker, last month. The governor’s newly appointed President Marybel Batjer, who has a well-earned reputation as a bureaucratic “fixer,” is in a prime position to refocus the agency on what should be its top priorities, while allowing other things to fall away.
A reorganized and refocused Public Utilities Commission will allow the commission to return to its stated mission of empowering California through access to safe, clean, and affordable utility services and infrastructure.
Kish Rajan is Chief Evangelist of CALinnovates, a nonpartisan coalition of tech companies and nonprofits, some of which engage in issues before the California Public Utilities Commission, email@example.com. He wrote this commentary for CalMatters.
The New Yorker (excerpts)
Six of the ten worst fires in California’s history have occurred in the past eighteen months, and last year’s fire season was the deadliest and most destructive on record. More than a hundred people were killed, and more than seventeen thousand homes destroyed. Experts have warned that this year’s fire season could be even worse, in part because record-breaking rains early this year spurred the growth of brush and grasses, which have since dried out, creating more fuel. Governor Gavin Newsom proclaimed a wildfire state of emergency in March, months before fire season would normally begin.
The tools and techniques capable of stopping megafires remain elusive, but in the past few decades a scientific consensus has emerged on how to prevent them: prescribed burns. When flames are kept small and close to the ground, they clear the leaf litter, pine needles, and scrub that fuel wildfire, and consume saplings and low-level branches that would otherwise act as a ladder conveying fire to the canopy. With the competing vegetation cleared out, the remaining trees grow larger, developing a layer of bark thick enough to shield them from all but the hottest blazes. California’s state legislature recently passed a bill earmarking thirty-five million dollars a year for fuel-reduction projects.
“And yet no one is actually burning,” Jeff Brown, the manager of a field station in the Tahoe National Forest, told me when I visited him there recently. Although prescribed burns have been part of federal fire policy since 1995, last year the Forest Service performed them on just one per cent—some sixty thousand acres—of its land in the Sierra Nevada. “We need to be burning close to a million acres each year, just in the Sierras, or it’s over,” Brown said. The shortfall has several causes, but, some fifteen years ago, Brown set himself the almost impossible task of devising a plan for the forest he helps maintain that would be sophisticated enough to overcome all obstacles. Now he is coördinating an urgent effort to replicate his template across the Sierra Nevada.
The local district ranger at the time was worried, too, and asked Brown whether she and her team could help reduce the forest’s fuel load by doing some thinning—something the Forest Service does either by sending in loggers with chainsaws or by using a backhoe-like machine called a masticator, which shreds anything in its path. Brown was horrified at the suggestion. Like many staunch environmentalists, he was suspicious of the agency, because part of its remit is to generate revenue by logging timber like a crop. “To my mind, the Forest Service was the enemy, because if you cut down one tree you were doing something wrong,” he told me.
Elsewhere in the Sierra Nevada, conditions were much the same—overstuffed forests, stripped of big old trees and filled with smaller ones crammed together—and global warming amplified the risk of disaster with each passing year. The average temperature on a summer day in California is 2.5 degrees Fahrenheit hotter than it was in the nineteen-seventies, and in the same period there has been a fivefold increase in the acreage consumed by wildfire. Fire seasons have been getting longer and more severe since the nineteen-eighties. Brown realized that doing nothing was no longer an option.
Brown and the rest of the Sagehen planning team decided to pursue a strategy that had recently been developed by a Forest Service scientist at its Rocky Mountain Research Station. Affectionately known as splat, for Strategically Placed Landscape Area Treatment, the technique involves clearing rectangular chunks of forest in a herringbone pattern.This compels any wildfire to follow a zigzag path in search of fuel, travelling against the wind at least half the time. The splats function as speed bumps, slowing the fire enough that it can be contained, while allowing the Forest Service to get away with treating only twenty to thirty per cent of any given landscape.
The splat technique had been tested only in flat grasslands in Utah, and adapting it to the mountainous topography of Sagehen proved tricky. When fire travels uphill, it preheats the ground in front of it, often doubling its velocity; fire usually moves downhill more slowly, but a lit pinecone rolling down a slope can easily ignite new areas.
Topography also affects other factors that determine the pace of a fire, such as wind speed, rainfall, and soil-moisture levels. Scott Stephens and one of his doctoral students embarked on a multiyear study to gather all the landscape data needed to model fire behavior at Sagehen.
Adapting the splats to Sagehen’s terrain took four years. Then, just as the plan was being finalized, a paper was published documenting the unexpected decline of the American pine marten at Sagehen. The marten, a member of the weasel family, is not endangered, but its population levels are seen as a useful proxy for forest health. Soon, the Sagehen planning team heard from Craig Thomas, the director of the environmental group Sierra Forest Legacy, which has a long history of litigation against the Forest Service. Thomas asked them to redesign the project, with an eye to protecting marten habitat.
Thomas, a small-scale organic farmer in his seventies, told me that he was astonished when the Sagehen group, especially the Forest Service, seemed open to the idea. “Instead of getting their backs up, they jumped in with both feet,” he said. Conway recalled his own response a little differently. “I was, like, really?” he said. “It meant a bunch of complexity, and making this project, which was already really too long, much, much longer.” Still, as Thomas recalls, Conway “went away and read every marten ecology paper in existence by the time the next phone call happened. And I went, Ah, this is somebody I think I want to work with.”
Arriving at a consensus took years of discussion, but, in the end, the strategy the team decided on turned out to mimic the way fire naturally spreads. For instance, fire burns intensely along ridges and more slowly on north-facing slopes. Martens, having adapted to these conditions, rely on the open crests to travel in search of food and mates, while building their dens in shadier, cooler thickets. Following the logic of fire would create the kind of landscape preferred by native species such as the California spotted owl or the Pacific fisher—a mosaic of dark, dense snags and sunlit clearings, of big stand-alone trees and open ridgelines connecting drainages. Conway then led an effort to formulate a detailed implementation plan whose treatments varied, acre by acre, according to the group’s predictions. Some areas were to be left as they were, some were to be hand-thinned with a focus on retaining rotting tree trunks, and some were to be aggressively masticated and then burned.
Typically, a Forest Service project takes two months to plan. Sagehen had been in the works for nearly a decade, but Brown eventually achieved the impossible: a plan that everyone—environmentalists, scientists, loggers, and the Forest Service—agreed on. Then, three days before the group was due to sign off on the plan, there was yet another hitch: in one of the units of Sagehen that were scheduled to be burned, a Forest Service employee discovered a nesting pair of goshawks—raptors that are federally protected as a sensitive, at-risk species.
This time, it was the conservationists who compromised. “I could have said, ‘O.K., this area is now off limits, and if you don’t believe me I’ll sue your ass,’ ” Craig Thomas recalled. But, after some discussion, he agreed to stick with the plan. He knew that burning might make the birds leave or fail to fledge young, but, he told me, “the collaboration effort and what we had accomplished together mattered more.”
Across the region, the Forest Service is devising projects to thin and burn on the Sagehen model. Meanwhile, Brown has helped launch the largest forest-restoration venture yet undertaken in California: the Tahoe-Central Sierra Initiative. It encompasses an enormous swath of forest that extends as far north as Poker Flat, level with Chico, and as far south as the American River, level with Sacramento. Brown’s goal is to return fire to three-quarters of a million acres in the next fifteen years.
Achieving this will require a radical acceleration of the process that took place at Sagehen. Scott Conway has been exploring ways of using artificial intelligence to synthesize satellite data and aerial laser imaging into precise, three-dimensional maps of the more than a million acres that make up the Tahoe National Forest. With a grant of $1.3 million dollars from the Moore Foundation and the support of Silicon Valley startups, he has begun work on creating an open-access platform currently called the California Forest Observatory. Information that required years of on-the-ground counting and analysis at Sagehen—tree diameter, forest structure, fuel load—should soon be almost instantly accessible. Currently, the fire-risk map used by the California Department of Forestry and Fire Protection doesn’t include weather data and hasn’t been updated to show burned areas since 2005. The prototype Forest Observatory will incorporate fresh satellite imagery on a daily basis.
Perhaps Sagehen’s most important legacy is cultural: persuading the Sierra’s warring stakeholders to conceive of forest management in ways they had previously rejected. Three of California’s national forests have recently mandated allowing wildfire to spread in areas where it will be beneficial. Forest Service employees will have to file paperwork to justify putting out a fire that has started, where previously any decision not to extinguish a fire was ground for disciplinary investigation.
Attitudes among conservationists have evolved, too. In July, I joined Craig Thomas, the former director of Sierra Forest Legacy, for a hike along Caples Creek, in the Eldorado National Forest, just south of Lake Tahoe. “I would take those out,” he said, pointing at two lovely little cedars nestled in the shade of an enormous sugar pine, their crowns just grazing its lower branches. They posed an existential threat to the larger tree, offering fire a fast track up to the canopy, and a lack of sunshine and nutrients had left them stunted. Thomas, a man who once spent much of his time suing the Forest Service, told me that he recently became certified to operate a chainsaw.
Cell Phones…A Way of Life, But @ What Price?
Wall Street Journal excerpt, 8/25
Jack Tibbetts, a member of the Santa Rosa, Calif., city council, knew he had a problem. It was early 2018, and he’d started getting calls from constituents at opposite ends of the political spectrum. The common thread: cellular antennas going up next to their homes, causing concerns over property values and health.
The weight of evidence suggests that if radio-frequency emissions have any effect on humans at all, it is, according to the World Health Organization, about on par with other “possibly carcinogenic” substances, including coffee and pickles. The Federal Communications Commission, citing input from the Food and Drug Administration, recently declared that existing limits on the amount of radio-frequency energy these antennas put out make them safe. A senior FCC official said there is nothing unique to 5G networks that poses additional health risks.
None of this has stopped the social-media-fueled conspiracy whirligig that allows health scares to thrive on the internet.
Cities and towns throughout Northern California are issuing ordinances that would exclude new 5G cell sites from residential areas, citing supposed health concerns. Residents of Portland, Ore., and Whitefish, Mont., have also cited these beliefs while lobbying for restrictions. Legislators in four states including New Hampshire have proposed bills that would mandate further study of health effects or else urge Congress to do so, and Congressman Thomas Suozzi (D., N.Y.) wrote to the FCC echoing these concerns.
For Mr. Tibbetts, it didn’t matter whether or not these new “small cell” antennas—which are used for 4G networks but can be upgraded for 5G—going up in Santa Rosa were actually dangerous. Some were attached to utility poles a mere 20 feet from people’s bedroom windows, and residents complained Verizon had put them up without notifying them. What mattered was that his constituents didn’t want these ungainly chunks of public infrastructure anywhere near them.
“I don’t like the idea of someone being in their home and it’s supposed to be a place of security, and they are having that feeling of insecurity,” Mr. Tibbetts says. “I won’t be surprised if in 10 years there’s no evidence of cancer from these towers, but my job is not to protect Verizon, it’s to protect people in their houses.”
Whatever the basis for residents’ objections to new cell towers, Mr. Tibbetts—as well as countless mayors, governors and council members across the country—have little or no power under current rules to act on their constituents’ wishes. Nor do they have the leeway they once did to set pricing for cell sites, a lucrative source of funding for civic initiatives. Those who do take action are creating ordinances that put their cities at risk of being sued by the telecoms, as happened this month in Rochester, N.Y.
Billed as the key to the future—of telecommunications, of global competition, of innovation and even of municipal infrastructure—5G has instead become a bone of contention. In addition to upgrading existing towers, it will require an estimated half-million new towers and small-cell sites on utility poles, lampposts and buildings. Experts also anticipate a long rollout period, potentially of a decade or more.
Most cities want 5G, but they don’t want to be told how, when and at what cost. Rules the FCC has already passed, meant to expedite 5G’s rollout, might well be creating acrimony that serves to do the exact opposite.
“My personal reason for doing this is I believe that humanity is threatened,” says Sandi Maurer, a member of the activist group EMF Safety Network, which lobbies to reduce people’s exposure to electromagnetic fields.
Partly as a result of such activism, many towns in Marin County, Calif., have passed ordinances or resolutions that limit 5G cell sites in residential areas. Towns like Mill Valley specify zones where towers aren’t permitted, and may also require them to be a certain distance from each other. In 2018, Verizon withdrew its application to install two small cells in Sebastopol, Calif., rather than sue the city or refer the matter to the FCC.
But since then, the FCC has rolled out its 5G Fast plan requiring cities and states to approve new 5G antennas within 60 or 90 days. It also limits what government leaders can charge carriers for the real estate on which the new infrastructure will hang—be it a utility pole, streetlight or even building facade.
Carriers love this plan. A spokesman for AT&T referred to a statementlauding the FCC’s new rules, saying they “will help ensure that, through tried and true free-market incentives, all Americans no matter where they live will enjoy the benefits of jobs, investment, and economic growth this new technology will foster.” A Verizon spokesman said, “We’re looking for reasonable access and reasonable prices so that we can deploy 5G effectively and promptly to communities and the people who live and work in them.”
FCC chairman Ajit Pai and President Trump have both said that widespread deployment of next-generation 5G wireless networks is critical to winning the race with China. A spokesman for the FCC referred to previous statements by the agency: “To enable broadband providers to enter new markets and deploy high-speed networks, access to poles must be swift, predictable, safe and affordable.”
City leaders say their power to zone and regulate infrastructure is being abridged. More than 90 cities and counties have joined together in a lawsuit, currently before the Ninth Circuit Court of Appeals, arguing that the FCC has overstepped its authority. A decision could happen as early as in the spring, but it could also take much longer.
San Jose, Calif., has already permitted 596 small-cell sites, all of which can be upgraded to 5G, says Shireen Santosham, the city’s chief innovation officer. When that rollout began, San Jose signed agreements with telecoms for between $750 a pole and $2,500 a pole for the new small-cell sites. If the cities lose their suit against the FCC, San Jose might be forced to charge less than the lowest amount it had previously charged per pole.
The city very much wants a 5G rollout, says Mayor Sam Liccardo. But like other cities, San Jose wants to be able to charge higher prices for use of its infrastructure, not only to fund staffing to expedite permits for new sites but also to supply the $1 million to $2 million needed to support a program to deliver broadband access to poor households.
“If we lose the money, the program pretty much grinds to a halt,” says Ms. Santosham. “Deployment will slow down, and the money to close the digital divide goes away.”
This sort of thing could happen in other cities, despite FCC rules that say permits are automatically approved after 60 or 90 days, says Mr. Liccardo. “There are lots of ways for local bureaucracies to make it difficult even when the federal government says they must,” he adds.
Blair Levin, a fellow at the Brookings Institution and a former chief of staff for FCC chairman Reed Hundt, said, “What the wireless guys are asking is for cities to treat them totally different than every other entity asking for construction permits. I think it will backfire because, in the fullness of time, instead of a cooperative relationship you’ll get a hostile relationship.”
The prime example is Rochester, which was on the receiving end of a lawsuit filed by Verizon on Aug. 8. Verizon claims the city’s code violates FCC rules by “imposing upon wireless providers non-cost-based fees on the deployment and maintenance of small wireless facilities.” Translation: Verizon thinks the city is charging too much rent for space on its utility poles where 5G antennas would be installed. A city spokesman says the fees are in line with what other providers pay and calls the suit frivolous.
“The federal framework calls for nondiscriminatory access at cost-based rates, and that is what we are seeking,” said a Verizon spokesman. “That means the federal rules prohibit special treatment.”
The health argument is hard to take to court because the FCC has sole discretion over whether the emissions of an electronic device are safe, a right unquestioned by any current court cases or pending federal legislation. A different—and so far more successful—tack has been to challenge carriers on the size and shape of the 5G cells.
In a legal challenge to the FCC’s current rules undertaken by the United Keetoowah Band of Cherokee Indians in Oklahoma, the D.C. Circuit Court recently ruled against the FCC, asserting, among other things, that 5G “small cells” aren’t nearly as small as advertised.
In its brief, the industry has said these new antennas are only as big as a pizza box, and that in other respects they are comparable to home Wi-Fi routers. But the court said that, especially when they sit atop newly installed towers, they are in fact big and obtrusive enough that they require a review of their environmental impact, and that they are subject to historic-preservation rules.
“Even if only 20% of small cells required new construction, as one wireless company estimates and the FCC highlights in its brief…that could entail as many as 160,000 densely spaced 50-foot towers,” writes the court.
Despite all this conflict, most cities remain eager for telecoms to bring 5G to their streets, says Craig Moffett, founder and senior analyst at MoffettNathanson, a communications research firm. The industry is promising a veritable cornucopia of fantastical technologies will flow from ubiquitous, ultrafast wireless—a smarter city where your autonomous car, your augmented-reality headset and your self-emptying trash bin are always in constant contact.
“It may be in retrospect we look back and laugh at how silly we all were at wondering what applications this will be used for,” Mr. Moffett said.
The New York Times excerpts
Meet Karen Beverlin, the produce hunter. At 59, after more than 30 years in the business, she is a market celebrity, interrupted every 50 feet by a young cook seeking advice or a veteran farmer eager to ply her with a sample. A tall, commanding presence with a rollicking laugh, she is easy to find: If a knot of people has gathered around a tomato or a plum, she is likely at the center of it, expounding.
Her first bit of advice, no matter where you shop: Don’t fall for a pretty face, because most produce has a different sort of “tell,” a visual giveaway that it’s ready to eat.
Tart cherries keep their secrets, but the best sweet cherries advertise with “tiny little pittings, in a cluster,” she said, and a matte finish rather than a patent-leather sheen. A great nectarine has “sugar spots, a bunch of little white freckles,” not a consistent hue.
“Red exterior color was bred into peaches and nectarines,” she said, “because unripe fruit that’s red looks more attractive than unripe fruit that’s pale.”
Many people pinch fruit to gauge its ripeness, much to the horror of farmers. The standard five-fingertip squeeze bruises peaches, nectarines, apricots and avocados. Instead, Ms. Beverlin places a peach in her open palm, wraps her hand around it and barely flexes. If it gives just a bit, “firm, but not hard,” it’s ready.
“It took me years before I realized what I was seeing: Tree-ripe fruit that’s firm tastes better than what is traditionally identified as ripe, when fruit is soft,” she said. “I think some consumers give up flavor to get juice running down their arms. But they don’t know what they are missing.” (She buys fruit that’s fairly firm, then lets it sit on the counter at home until it starts to yield. At that point it goes into the refrigerator so it won’t get soft.)