May 25, 2021 Council President Jennifer Campbell Council
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The Protect Our Communities Foundation 4452 Park Boulevard #309 San Diego, California 92116 May 25, 2021 Council President Jennifer Campbell Council President Pro Tem Stephen Whitburn Councilmembers Joe LaCava Councilmember Monica Montgomery Steppe Councilmember Marni von Wilpert Councilmember Chris Cate Councilmember Raul Campillo Councilmember Vivian Moreno Councilmember Sean Elo-Rivera c/o Elizabeth Maland, City Clerk 202 C Street, MS2A San Diego, CA 92101 Sent Via Email ([email protected]) Re: VOTE NO on Item 330: Actions Related to the Award of Gas and Electric Franchises and Cooperation Agreement with San Diego Gas and Electric. Dear Honorable Councilmembers of the City of San Diego: On behalf of The Protect Our Communities Foundation (PCF), this is to request that you please VOTE NO on Item 330 and all of its Subitems. In addition to the numerous concerns we and others have raised over the years, and in addition to the public comment we and others intend to make at today’s hearing, the letter explains why a vote to approve the Franchise Agreement before you today -- at least without substantive modifications to each of the subitems as currently drafted -- would constitute an abdication of your duties under the San Diego City Charter and the San Diego Municipal Code (SDMC) and would violate the Charter, the California Environmental Quality Act (Act), the California Constitution, and California statutory authority. I. THE PROPOSED ORDINANCES, THE MOU, AND THE ENERGY AGREEMENT VIOLATE THE PROHIBITION AGAINST DELEGATION OF THE CITY COUNCIL’S POLICY MAKING AUTHORITY. The ordinances, the MOU contemplated therein, and the “Energy Cooperation Agreement” cannot be approved as drafted without violating the City Charter, particularly Charter Sections 11.1 and 103.1, provisions of the California Constitution, and applicable statutory law because, as currently drafted, the documents constitute an unlawful delegation of legislative authority. Protect Our Communities Foundation 4452 Park Blvd., Suite 309, San Diego, CA 92116 www.protectourcommunities.org The draft ordinances, the MOU, and the Energy Cooperation Agreement unlawfully delegate the City Council’s power under the City Charter, including Charter Section 103.1, to the Mayor and SDG&E. The City Council gives away its exclusive power to set the terms of franchise agreements and to set City policy when it agrees to do things “mutually” and “collaboratively” with a private corporation, and on terms the Mayor and a private corporation have decided upon. The documents before you today unconstitutionally and in violation of the City Charter allow SDG&E to play a role in setting policy. The City Council cannot lawfully delegate its duty under Charter Section 103.1 to set the terms and conditions of SDG&E’s operations, or its duty to establish City policy under its legislative power in general, to the Mayor, SDG&E, or anyone else.1 Moreover, using a buzzword like “administrative” in an attempt to invoke the Mayor’s administrative powers cannot change the fact that the documents authorize the Mayor to add terms to the Franchise Agreement after consulting with SDGE. The terms of the Franchise Agreement are for the City Council – and only the City Council – to determine. In short, the City Council cannot allow others to set policy. The City Council must avoid allowing the Mayor and SDG&E, and either of them, to perform the duties the voters elected the City Council to perform. II. THE ENVIRONMENTAL ANALYSIS AND DOCUMENTATION CONTAINS BOTH FACTUAL AND LEGAL ERRORS AND DOES NOT COMPORT WITH CEQA. The proposed ordinances and agreement before you constitute an “activity directly undertaken by any public agency.”2 Moreover, because the project involves natural gas operations and delegation of policy making authority to a corporation with responsibilities to its shareholders as opposed to only the public, “by its general nature, the activity is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.”3 Allowing SDG&E to continue its natural gas system for many years in the future contradicts California’s electrification and greenhouse gas reduction goals as well as the City of San Diego’s Climate Action Plan. 1 San Diego City Charter, Article III, Section 11.1; Southern California Gas Co. v. Los Angeles (1958) 50 Cal.2d 713, 719 (“…the police power cannot be bargained away.”); San Francisco v. Cooper (1975) 13 Cal. 3d 898, 929 ("no legislative board, by normal legislative enactment, may divest itself or future boards of the power to enact legislation within its competence”). 2 Pub. Res. Code, § 21065, subd. (a); Cal. Code Regs., tit. 14, § 15378, subd. (a)(1); Union of Medical Marijuana Patients, Inc. v. City of San Diego (“Medical Marijuana Patients”) (2019) 7 Cal.5th 1171, 1188-1189. 3 Medical Marijuana Patients, 7 Cal.5th at 1197. -2- Protect Our Communities Foundation 4452 Park Blvd., Suite 309, San Diego, CA 92116 www.protectourcommunities.org The need to reduce methane emissions caused by gas operations has grown increasingly critical. The National Oceanic & Atmospheric Administration (NOAA) reports that despite the global pandemic, the annual increase in atmospheric methane in 2020 was the largest annual increase recorded since systematic measurements began in 1983.4 The following graphic depicts the dangerous trend in the monthly mean global atmospheric burden of methane: The United Nations Environment Programme recently published a report establishing an increasingly critical need for specific measures targeting methane reduction in order to achieve the greenhouse gas emission reductions necessary to avoid the most catastrophic climate change impacts. The UN report explains that “[r]educing human-caused methane emissions is one of the most cost-effective strategies to rapidly reduce the rate of warming and contribute significantly to global efforts to limit temperature rise to 1.5 degrees above pre-industrial levels, particularly in the fossil fuel sector.5 The City should avoid entering into agreements which fail to reduce reliance on gas at this critical time in human history, and which do not consider the social costs of methane.6 4 NOAA, Despite pandemic shutdowns, carbon dioxide and methane surged in 2020 (April 7, 2021), available at https://research.noaa.gov/article/ArtMID/587/ArticleID/2742/Despite-pandemic-shutdowns- carbon-dioxide-and-methane-surged-in-2020. 5 UN Environment Programme et al., Global Methane Assessment – Benefits and Costs of Mitigating Methane Emissions (May 6, 2021), p. 8, 87-88, available at https://www.unep.org/resources/report/global- methane-assessment-benefits-and-costs-mitigating-methane-emissions. 6 Interagency Working Group on Social Cost of Greenhouse Gases, United States Government, Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates Under Executive Order 13990 (February 2021), available at https://www.whitehouse.gov/wp- content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf; see also D.17-06-015, p. 147 (FOF 29). -3- Protect Our Communities Foundation 4452 Park Blvd., Suite 309, San Diego, CA 92116 www.protectourcommunities.org Although City staff claim that the project is exempt from CEQA under the existing facilities exemption,7 the California Supreme Court has already rejected reasons like those staff improperly relies upon and confirmed that “a local agency ‘cannot argue’ that approval of a regulation is not a project ‘merely because further decisions must be made’ before the activities causing environmental change will occur.”8 Additionally, the existing facilities exemption under CEQA does not apply where, as here, the project involves more than a negligible expansion of use.9 Nor does the exception apply where, as here, “the cumulative impact of successive projects of the same type in the same place, over time is significant” and “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances”10 such as those described in this letter and SDG&E’s history of failing to conform to its agreements. Neither the Mayor nor SDG&E can perform the City Council’s duties under CEQA.11 The project before you today requires an EIR because “the project has the potential to substantially degrade the quality of the environment” and threatens plant and animal communities, “the project has the potential to achieve short-term environmental goals to the disadvantage of long- term environmental goals,” it has cumulative considerable impacts, and will cause substantial adverse effects on human beings.12 III. THE ORDINANCES AND ENERGY COOPERATION AGREEMENT CONFLICT WITH THE CITY’S CLIMATE ACTION PLAN. The document before you conflicts with express objectives in the Climate Action Plan, including creation of “green jobs through incentive-based policies such as the manufacture and installation of solar panels,” “improve public health by removing harmful pollutants from our air,” and “increase local control over the City’s future by reducing dependence on imported…energy,” and “save taxpayer money by decreasing…energy usage in City-own buildings.”13 The ordinances and other documents before you today conflict with the requirement in the Climate Action Plan to “[u]se renewable energy to generate energy to the extent feasible,” and to “[u]se small, decentralized, aesthetically-designed, and appropriately-sited energy efficient power generation facilities to the extent feasible,”14 among other requirements. 7 Cal. Code Regs., tit. 14, § 1 8 Medical Marijuana Patients, 7 Cal.5th at 1200. 9 Cal. Code Regs., tit. 14, § 15301 (“…The key consideration is whether the project involves negligible or no expansion of use.”). 10 Cal. Code Regs., tit. 14, § 15300.2, subd. (b), (c). 11 Cal. Code Regs, tit. 14, § 15025. 12 Cal. Code Regs., tit. 14, § 15065, subd. (a). 13 San Diego Climate Action Plan Final Program Environmental Impact Report, p. ES-2, p. 2-2 – 2-3. 14 San Diego Climate Action Plan Final Program Environmental Impact Report, p. 3.G-16.