Why Isn’t Everyone Composting Yet?  Part 1 – Behavior Change

By Tim Dewey-Mattia, Public Education Manager, Napa Recycling & Waste Services and NCRA Board Member, 4/1/2021

Part 1 – Behavior Change

Former NCRA President Arthur R Boone recently posed a question to me via email on “Why the conversion of the yard debris green cart into the full-service organics cart has stumbled badly in getting rolled out? Would love to understand all that resistance better.” Here were my thoughts, which we both thought would be valuable to share with the rest of the NCRA News readers.

It’s true, the roll out of full-service organics across the Bay Area hasn’t been as successful as we all hoped. It’s tough to get a good read on participation levels, but I think from lid flips, load checks, customer surveys and anecdotal evidence, most Bay Area full-spectrum organics programs still see no more than 50% participation in the food scrap/soiled paper portion (as opposed to just using the cart for yard trimmings). The idea of the trash being the catch-all bin for throwing away everything is still strong and the default for many… and flipping that paradigm has proven to be tricky.

However, I do think there is still some optimism to be warranted – after all, curbside recycling had a multiple decade head start on curbside composting, and it took a while for recycling to become a commonplace activity for many people (of course, we know there are serious issues with curbside recycling, but at least we see the vast majority of customers participating – perhaps incorrectly – in the program).  One thing that composting has over recycling is that it’s less complicated with fewer rules of what can and can’t go in the cart, so over time we’ll hopefully see it become more successful.

For the first article of this series, I’ll focus on behavior change.

I think we badly underestimated the “Ick Factor.”  We told customers that it’s the same stuff they were throwing in the trash and that it just needs to go in that different bin next to your sink. But, of course, they use a trash bag for trash, and without a bag the kitchen bin got gross, smelled bad abd attracted fruit flies, etc.  So, customers immediately gave up.

I do think that a solution to this is more widespread usage of compostable liners in the kitchen pails – obviously some people are fine with cleaning the bin frequently, using old newspaper as a liner or freezing their food scraps, but for a lot of the public it needs to be an easy solution like the bag.  The compostable bags are available at a lot of stores now (and in Napa we now provide samples to customers along with their Sure-Close pail), but I think that a potential option here (which I’ve seen as fairly commonplace in Italy, among other places) is to have grocery store produce bags be mandated to be compostable, and then they could be used to collect kitchen food scraps.

We also are dealing with the issue of customers just shoving most of their food scraps down their sink disposals.  The wastewater treatment folks don’t want this to happen, but it’s still commonplace – so we continue to work on outreach to get customers to get the food out of the sink and into the pail.   Also, often customers have an idea of what can go in a backyard compost pile, but don’t grasp that the full-spectrum curbside programs also take meat, bones, pet food, and all soiled paper products.

While many communities have delivered the food pails (Sure-Close, or other options) and conducted ongoing outreach campaigns, I realize that the program roll out was still fairly passive.  After all, for most programs in our region, it wasn’t even necessary to deliver a new cart – it was just “throw it all in your yardwaste cart… which isn’t just a yardwaste cart anymore” or whatever.  While we may have slapped a new sticker on the cart lid – or ordered new carts with inmolds showing all the stuff that can go in the compost cart – there are a lot of carts out in the field that still don’t have proper labeling…or the labeling just isn’t compelling enough to drive behavioral change.  With SB 1383 roll out, we all have the opportunity be more active in our outreach campaigns going forward.

Next –

Part 2: Uneven Access

 

EPR is no Panacea for California’s Troubled CRV System

LEGALLY SPEAKING, EPR IS NO PANACEA FOR CALIFORNIA’S TROUBLED CONTAINER DEPOSIT RECYCLING SYSTEM

The views expressed here do not necessarily represent or reflect the views of the Northern California Recycling Association.

By John Douglas Moore, Esq, NCRA Legal Counsel and Former Board Member

I’ve practiced law for forty years. I’m a board-certified litigator who has won all but three of my cases that went to trial. But I’ve also served as general legal and trial counsel to three public agencies and one $150 million per year retail chain, as well as many other businesses. I have attended hundreds of corporate board meetings and many government closed sessions.

I have observed violations of the Brown Act in the biggest as well as the smallest jurisdictions in the Bay Area. I have dealt with state and local government regulation of businesses at all levels. I have reviewed several prominent cases that involved governments’ failures to regulate business consistent with legislation.

This experience has convinced me that Extended Producer Responsibility or EPR — as defined and advocated by proliferating pro-EPR entitles such as the Product Stewardship Institute — cannot achieve their own stated goals and purposes. That’s because local governments lack the financial resources to win against large corporate interests. Elected officials are subject to ever-shifting political winds over whom they choose to favor and what regulations they choose not to enforce. Staff must do as the elected officials decree.

EPR depends on government regulation and oversight to “level the playing field” for the participants, or so say EPR advocacy organizations. But this has not happened in the past and it will not happen in the future.

EPR originated in Europe, where burning garbage is common and is considered “recycling.” PSI’s website does not mention Europe or burning garbage. Yet one of PSI’s partners is Covanta, an incinerator company. And British Columbia, the Canadian province that has taken EPR the farthest, has a 300 ton per day incinerator in the aptly named town or Burnaby as part of it’s discard management system. Incineration doesn’t conserve valuable materials like real recycling does. Incineration destroys resources. The idea that burning is recycling is a lie. The Pro-EPR folks embrace the British Columbia experience, which puts the actual recyclers on the lowest level of the playing field and do not disavow incineration as recycling.

The Product Stewardship Institute (PSI), the California Product Stewardship Council (CPSC), the Product Policy Institute (PSI), and the newer National Stewardship Action Council (NSAC) have all adopted “principles” for how EPR programs must be established. Their chosen form of EPR is a “mandatory type of product stewardship.” This mandatory type of product stewardship requires, according to PSI,

“Government is responsible for ensuring a level playing field for all parties in the product value chain to maintain a competitive marketplace with open access to all, for setting and enforcing performance goals and standards, for supporting industry programs through procurement, and for helping educate the public. “

Government’s “responsibility” for “ensuring” a level playing field for “all parties” presumably includes the people and companies doing the actual work of recovering the products. To put the lie to economic justice for companies and workers recovering post-consumer goods for reuse or recycling, one needs to look no further than California’s failure to manage its own bottle bill, which is a form of EPR.

California’s bottle bill begins with the same kind of empty platitudes as those employed by PSI:

“It is the intent of the Legislature to encourage increased, and more convenient, beverage container redemption opportunities for all consumers. These redemption opportunities shall consist of dealer and other shopping center locations, independent and industry operated recycling centers, curbside programs, and other recycling systems that assure all consumers, in every region of the state, the opportunity to return beverage containers conveniently, efficiently, and economically.”

Moreover:

“It is the intent of the Legislature to ensure that every container type proves its own recyclability. It is the intent of the Legislature to make redemption and recycling convenient to consumers, and the Legislature hereby urges cities and counties, when exercising their zoning authority, to act favorably on the siting of multimaterial recycling centers, reverse vending machines, mobile recycling units, or other types of recycling opportunities, as necessary for consumer convenience, and the overall success of litter abatement and beverage container recycling in the state.”

And furthermore:

“The purpose of this division is to create and maintain a marketplace where it is profitable to establish sufficient recycling centers and locations to provide consumers with convenient recycling opportunities through the establishment of minimum refund values and processing fees and, through the proper application of these elements, to enhance the profitability of recycling centers, recycling locations, and other beverage container recycling programs.”

Lastly:

“The responsibility to provide convenient, efficient, and economical redemption opportunities rests jointly with manufacturers, distributors, dealers, recyclers, processors, and the Department of Conservation (now CalRecycle).

Does the Bottle Bill as written and passed by the California legislature actually create a “level playing field?” No, it does not!

The redemption centers that were promised by the bill to be “profitable” were instead locked into an exploitative statutory compensation scheme that was based upon outdated economic models. The last two years’ legislative sessions ended with no more money to the redemption centers, whose employees do the work of recycling. Hundreds of redemption centers were closed and thousands of recycling jobs were lost.

Just one chain — Re-Planet — closed 600 locations and laid off 1000 employees after the state starved them out. In the last five years, the number of redemption centers has fallen by over one third, resulting in “recycling deserts” in many parts of the state. Consumers today have far fewer places to go to “get their nickel back” from CRV deposits.

Why would this be allowed to happen when the Bottle Bill promises consumers “in every region of the state, the opportunity to return beverage containers conveniently, efficiently, and economically”?

Many consumers with no other recycling options will ultimately place their containers into their curbside collection carts that are picked up by franchised waste haulers. So the waste haulers end up getting paid deposit fees by the state for the CRV, not the consumers. Some waste haulers are in fact supporters and allies of PSI, as evidenced by PSI’s “partnership” with the Solid Waste Association of North America (SWANA) and Waste Management Inc. (WMI).

Some critics of the bottle bill believe that the regulator, CalRecycle, is underenforcing the obligations of beverage distributors to pay into the fund that is supposed to make the system work. Grocery chains required by the bill to provide consumers the ability to claim the redemption money can opt out of the system entirely by paying $35,000 per year. Most that can, do. This further limits the ability of consumers to find locations to obtain CRV redemption.

Meanwhile, CalRecycle is sitting on a surplus of unclaimed CRV deposits in the tens of millions of dollars.

Examples are easy to find of local government’s inability to enforce regulations against businesses that possess limitless lawyers and resources:

    1. When the City of Oakland rejected the bid of Waste Management of Alameda County (WMAC) for a long term solid waste franchise, WMAC sued the City of Oakland. With a school system in bankruptcy, a police department paying for a federal-court appointed monitor, a bloated obligation to pay union pensions, and rampant homelessness, the City of Oakland lacked the resources to fight WMAC’s lawsuit. They folded. WMAC ended up with the franchise.
    2. When local jurisdictions began passing plastic bag bans, the plastic bag makers and their petrochemical allies filed CEQA lawsuits against the government entities, which cost a lot of time and money to defend. Most local jurisdictions who got sued, like Oakland, folded. When the City of Manhattan Beach finally stood up for itself and won the CEQA case against it, plastic bag bans became more common, setting up even more battles in the state legislature and then before the voters.
    3. Ask any city attorney or elected official that you know what it would take for them to want to sue a Waste Management. Inc. for not fulfilling contractual obligations, or sue a Coke or Pepsi megacorporation who leave a trail a plastic pollution in parks, public waterways, and stormwater systems, or sue Safeway for not providing CRV redemption opportunities as promised by the legislature.

I can only say, having litigated against large corporations represented by big law firms, that big businesses ignore local regulation when they can, because they can. They can outlast almost anyone who stands up to them.

Besides having more resources, big businesses are also better at playing politics. Franchised waste haulers are an entrenched part of local government’s obligation to keep garbage off the streets. The waste haulers work daily with local regulators in the common cause of “cleanliness” and “Zero Waste.”

The waste haulers contribute to civic projects and the campaigns of the elected officials that supervise them. In this close relationship, local government staff are ill-suited for aggressive regulation of waste haulers. The recyclers — the companies whose employees actually recover resources, not just “manage” them — are not on a level playing field with waste haulers.

Why would an EPR promise of “level playing fields” not be just as hollow?

NCRA secured a victory in court to uphold a voter-passed Solano County law limiting the import of garbage into the county. Cheap tipping fees in the county were reducing recycling and increasing air pollution because garbage was being imported from as far away as San Jose! Solano County government never tried to enforce the import limiting law and the Superior Court upheld the law over the 3-2 opposition of its Board of Supervisors. But after the court case was decided, waste haulers paid a lot of money to then assemblyperson Fiona Ma to intervene in the haulers’ favor. Fiona Ma’s law undoing the court decision was passed without any public hearings about the effects.

What do you think?

# # #

Plastics and Oil Bills Strategies, 2021

By Doug Brooms, NCRA Board Member and Chair of the Zero Waste Advocacy Committee,  NCRA News, 1/11/21

Download Resource Sheet

During October 2020, an editorial “Post Mortem of 54-1080 & Others”, had been emailed to members of grass-roots environmental justice organizations. Examination of the practices of lobbyists, and of the voting patterns particularly among certain Democrats, has further demonstrated the corrupting influence of money as impediments towards passage of important environmental legislation. If there should be an undertaking to reintroduce the same or similar plastics and oil regulation Bills in 2021, it was was stated: “then little or nothing can be left to chance. Beyond hopeful thinking, required would be a prior well planed, broad based, comprehensive strategy, for the long term…” A list of ideas and strategies had been proposed.

What follows here is an update on the developments and implementation of those ideas which had been most receptive, plus others.

Oil and Gas Regulations Bills

In regards to the two fossil fuel related Bills, SB 246 Oil and Gas Severance Tax, and AB 345 Oil Production Setback, there have been recent developments and increasingly compelling reasons for a version of each of them to be reintroduced this January, 2021.

No Fossil Fuel Money Pledge

One tactic should be early and widespread usage of the existing “No Fossil Fuel Money” Pledge. There have been mostly incumbents and some candidates for California Legislature Districts, who had taken the Pledge by early 2020. There had been 9 for the 80 Assembly Districts, and 15 for the 40 Senate Districts. How many more commitments could be acquired during 2021 and beyond? Having legislators on record would not guarantee pledge adherence to refuse Big Oil contributions, but would help with holding them accountable.

An important and integral part of gathering “No Fossil Fuel Money” Pledges, would be the need of concentrated efforts to gather Pledges from among certain Legislative Committee members.

For each Bill, there will be a preordained succession of committee hearings, typically with 5 to 15 members each (except up to 30 in the Budget Committee), who will consider the Bill’s relevance and impact to their committee requirements, and to take a vote. The Bill must pass each committee in succession before reaching the house of origin Senate or Assembly for a Floor vote.

It would take just enough conservative Legislators in any one committee with a simple majority to defeat or block a Bill from advancing. Also, it appears apparent that Committee Chairpersons have the discretionary authority to summarily table or delay a first year Bill until the second year, by indefinite postponement of the hearing, and without ever calling for a vote. It in not evident what Committee rules allow for a two year Bill to be suspended and held over. However the focused gathering of Pledges from among committee chairpersons and members in the path of each Bill should help to forestall the preemptive derailing of Bills.

Tracking the Dirty Dollars Project

Towards accountability, another strategy would be usage of the Sierra Club’s new “Tracking the Dirty Dollars” Project. It includes a comprehensive report plus a spreadsheet of each “problematic” legislator, which reveals their poor voting performance to correspond to their greater Big Oil “Dirty Dollars” contributions. Page 4 of the report states:

“For a detailed look at which dirty donors are funding each leader’s campaign, simply flip through the spreadsheets of this report. Broadly, the results of this report were not at all surprising. The legislators with the worst scores on our report card and who are often hostile towards Sierra Club and other environmental advocates receive substantial amounts of campaign cash from dirty donors.”

Particularly, the Moderate Democrats on this list could be forewarned that if their past pattern and appearance of their “No Votes” and “NVR” of being swayed by Oil interests, would continue during 2021, then that propensity would likely be used against them by challengers during the March 2022 California Primaries.

SB 246 and Other Oil & Gas Severance Tax Bills

In the piece “2020 10 Post Mortem 54-1080 & Others”, it was stated on page 2: “In all, at least 7 bills have been introduced in both the Senate and Assembly since 1990.” However, since 1980, there actually had been 11 Bills and 3 Ballot Initiatives, total 14 Severance Tax attempts. There also had been 5 other Petroleum Industry Tax proposals. See the attached “2021 Ca History of Oil & Gas Tax Bills”, and in particular on Page 4: “Bills Preemptive Quashing”.

Of the 11 Oil and Gas Severance Tax Bills since 1993, 8 had died prematurely in a Senate or Assembly Committee. There likewise had been early endings for 3 of 4 other Petroleum Industry Tax Bills. In all, there had been 12 out of 15 attempts to pass an oil and gas tax, which died in committee, before ever reaching a Senate or Assembly Floor for ascertaining votes, to make known the position of each legislator.

Given the high propensity for Bills to have died before reaching the Assembly and/or Senate Floors for votes, it provides a stark appearance of Bills systematically being “preemptively quashed”. The three committees from which a Severance Tax Bill did not emerge during at least two occasions, were the Assembly Revenue & Taxation Committee, the Senate Appropriations Committee, and the Senate Governance & Finance Committee.

It is no surprise that the Oil and Gas Lobby has played the key roll, over the many years, of assuring the early demise of Bills unfavorable to them. The early quashing of Bills in committee would provide a shield for each of their coveted legislators to never be required to cast a floor vote, and become individually expose for their fidelity with Big Oil.

This “Playbook” strategy evidently had been used to quash both SB 246 (Wieckowski) Oil and Gas Severance Tax, and AB 345 (Muratsuchi) Oil and Gas Production Setback. Both Bills had been put on waivers during the first year, and then killed or left to die in committee during the second year. For details, in the article “Post Mortem of 54-1080 & Others”, see the Section “SB 246 and AB 345 Post Mortems”.

Industry Opposition Letters

A part of the apparent strategy to stop Bills has been to send a Bill opposition letter to a targeted committee, days before an important Bill juncture. Such had been the case with SB 246, with a SB 246 Coalition Letter sent to the members of the Senate Governance & Finance Committee, just prior to a 1/15/20 scheduled hearing. Curiously, the 1/15/20 hearing on SB 246 was postponed, and was removed from the agenda, effectively killing the Bill for failure to advance out of the Governance & Finance Committee before the 1/31/20 deadline. It is not yet known whether the decision to postpone the hearing, and effectively to run out the clock on SB 246, had been at the sole discretion of the Chairman, or a majority vote among the following Senators:

Senate Governance and Finance Committee

Member Roster (7) 2019-2020             Member Roster (5) 2021-2022
Mike McGuire, Chairperson, (D) SD-2  Mike McGuire, Chairperson, (D) SD-2
John Moorlach *, Vice Chair, (R) SD-37         Jim Nielsen, Vice Chair (R) SD-4
Jim Beall *, (D) SD-15                         Maria Elena Durazo (D)
Robert Hertzberg, (D) SD-18                         Robert Hertzberg, (D) SD-18
Melissa Hurtado, (D) SD-14                           Scott Wiener, (D) SD-11
Jim Nielsen, (R) SD-4
Scott Wiener, (D) SD-11

* Note: Moorlach and Beall were defeated during Nov. 3, 2020 CA General Elections

As early as possible, a first step should be to solicit “No Fossil Fuel Money” Pledges from among the above five Senate Governance and Finance Committee members. Concurrently or subsequently do likewise with committee members which will be in the Bill’s succession path.

The above Member Roster for 2021-2022 was taken from the Senate Committee Membership Assignments. See also the 2021-2022 Assembly Committee Membership Assignments.

By the way, what Committee rules allow for a two year Bill to be suspended and held over until the second year? Is it needed and alternatively, would there be justification to seek its repeal?

Rebuttals to Industry Opposition Letter

The previously mentioned SB 246 Coalition Letter had purported an abundance of unsubstantiated claims, including the following:

Claim: “SB 246 will result in significantly lower property tax revenues, which are earmarked by local governments for public schools and public safety.”

Fact: Senate Bill 246 would raise approximately $900 million per year for the General Fund, to better fund schools and other important services in California.

Claim: “California’s oil production industry supports an ethnically diverse workforce with an estimated 55,000 blue collar, high wage paying jobs, including organized labor… studies show that a 10% severance tax can lead to 20,000 lost jobs and more than $300 million annually in lost revenue by 2025.”

Note: The Cited Reference #3 “Impact of a Severance Tax on Oil Production and the California Economy”; Prepared for the California Foundation for Commerce and Education by Capitol Matrix Consulting; March 2014”, could not be found via online searches.

Facts: “Transitioning to lower-carbon energy will entail a contraction of the fossil fuel sector, along with a loss of jobs. We find that from $1 million spending in fossil fuels, on average, 2.65 full-time-equivalent (FTE) jobs are created, whereas $1 million spending in renewables or energy efficiency would create 7.49 or 7.72 FTE jobs respectively. Thus each $1 million shifted from brown to green energy will create a net increase of 5 jobs.”

Claim: “SB 246 has the potential to reduce incentives to invest in California and thus making our state more reliant on imports of crude oil from foreign countries… While every barrel of oil produced in California is consumed in the state, nearly 70% is imported from mostly foreign sources to meet the state’s energy demands.”

Facts: “That argument, to put it as politely as possible, is utter nonsense… Between 2013 and 2017, California refineries increased both their crude oil imports and their refined fuel exports by roughly similar amounts… California refineries now export more than 200,000 barrels of refined products per day… California is at risk of becoming the gas station of the Pacific Rim.

In anticipation of such spurious Oil Industry opposition letters being used again, what will be needed are well crafted support letters, which include authentic documented references, preferably citing government and university facts and figures. Support letters should be sent to relevant committee members prior to scheduled Bill hearings.

Oil And Gas Severance Tax Bills Perseverance

There had been intermittent intervals during which no Oil and Gas Severance Tax Bills, or any Petroleum Industry tax proposals, had been pursued in California. The most recent lapses had been during the Legislative Sessions of 2015-2016 and 2017-2018. It is an historical anomaly that California had remained the only one of 34 oil producing states throughout the years and decades, without ever having successfully passed a Severance Tax.

Evidently, the first Legislative attempt had been 27 years ago in 1993 with AB 1693. In the Bill Analysis, it was stated:

“The purpose of this bill is to raise General Fund revenues to help balance the budget. According to the proponents, this bill levies a tax on a non-renewable natural resource of the state, which should be used to the benefit of the state’s residents, and that it is only fair that producers pay for the utilization of this resource…. California is the fourth largest oil producing state in the U.S. and is the only major oil producing state in the U.S. without an oil severance tax.”

Prior to 1993, what various strategies had all other oil producing states pursued to have successfully passed an Oil and Gas Severance Tax? How many years did each state take, via their legislature or state ballot initiative? Since 1993, California has failed in 14 consecutive attempts, intermittently since 1980. It remains curious and perplexing as to why there had not been ongoing determined efforts each and every year, without exception. to get it done,. Has the California Legislature simply given up out of exasperation? What are any unintended consequences to the California Legislature, with regards to public perception and confidence? Could it be that the Fossil Fuel Industry and Lobby has resolved that California shall never be allowed to pass an Oil and Gas Severance Tax, regardless of their cost?

Simultaneous Assembly and Senate Oil and Gas Severance Tax Bills Strategy

Referring again the attached “CA History of Oil and Gas Tax Bills”, there had been only two Legislative Years during which simultaneous Oil and Gas Severance Tax Bills had been pursued. During late 2008, of three simultaneous Bills, AB 9 x3 passed Assembly Floor, SB-1 passed Senate Floor, but failed Assembly Floor, and AB-2 passed Senate Floor, and passed Assembly Floor. For three simultaneous Bills, score that as 5 out of 6 occasions to have reached a Floor vote. During 2010, of two simultaneous Bills, only AB 656 passed Assembly Floor. During the 2013-2014 Session, two Bills were sequential, rather than simultaneous, and neither reached the Assembly or Senate Floors.

2007-2008

AB 9 x3 Passed Assembly Floor: 45-30-5. 11/30/08 – Died in unfinished business file.

SB-1 12/08/08 – Passed Senate Floor: 33-1-5. 12/16/08: Failed Asm Floor: 1-27-54.

AB-2 12/18/08 – Passed Senate Floor: 23-15-1, and passed Assembly Floor: 47-27-6.

1/06/09 – Enrolled and vetoed by Gov. Schwarzenegger.

2009-2010

AB 656 1/27/10 – Passed Asm Floor: 41-28-9. 11/30/10 – Died in Senate Education Comm.

AB 1604 5/10/10 – In Asm Revenue and Tax Comm suspense file. 11/30/10 – Died in Comm.

2013-2014 *

SB 241 5/20/13 – Passed Sen Appr Comm: 6-0-1. 2/03/14 – Died in Sen Appr suspense file.

SB 1017 5/19/14 – Passed Sen Appr Comm: 7-0-0. 11/30/14 – Died in Appr Comm.

* Consecutive Bills, rather than concurrent.

In all other instances of a solo Severance Tax Bill in a 2-year Session, the Bill never survived to reach a Floor vote. It would appear from these limited examples, that for a Severance Tax Bill to have any hope of reaching an Assembly or Senate Floor for a vote, then there needs to be two simultaneous Bills. Prior single and sequential Bills have all died in committees. This lesson is also reminiscent of the identical Plastic Pollution Bills AB 1080 and SB 54 during the previous 2019-2020 Session. During 2019, each simultaneous bill had passed its respective Senate and Assembly Floor votes, and during 2020, each had received Floor votes, although neither prevailed during 2020.

Anyone is free to speculate or theorize about possible factors, maybe greater transparency, synergism, or whatever, for simultaneous Bills to have better survived committee obstacles. The sample size is quite small. However it should be sufficient to simply recognize that solo Severance Tax Bills have never survived.

AB 345 Oil and Gas Regulations Setback Zone

AB 345 would have established a buffer zone, up to 2,500 feet, between oil production activities and populated areas, but encountered opposition along the way. On 4/22/19, AB 345 had passed out of the Assembly Natural Resources Committee by a 7-3-1 vote. However, after intense lobbying by the Western States Petroleum Association and the oil companies, it stalled in the Assembly Appropriations Committee on 5/16/19, becoming a two-year-bill. On 1/27/20, AB 345 had narrowly passed the Assembly Floor via a 42-30-8 vote. On 8/05/20, AB 345 had been defeated in the Senate Committee on Natural Resources and Water, via a 4-5 vote. Democratic Senators Hertzberg, Hueso and Caballero joined the two Republicans to oppose the bill.

Senate Natural Resources and Water Committee

Member Roster (9) 2019-2020           Member Roster (9) 2021-2022
Henry Stern (D), SD-27, Chair         Henry Stern (D), SD-27, Chair*
Brian Jones (R), SD-38, V. Chair      Brian Jones (R), SD-38, V. Chair
Ben Allen (D) , SD-26                        Ben Allen (D), SD-26
Hanna-Beth Jackson (D), SD-19       Andreas Borgeas, SD-8, (R-Fresno)
Bill Monning (D), SD-17                     Susan Talamantes Eggman (D), SD-5
* Andreas Boregas (R), SD-8             Robert M. Hertzberg (D), SD-18
* Anna Caballero (D), SD-12               Ben Hueso, SD-40 (D-San Diego)
* Robert Hertzberg (D), SD-18            John Laird, SD-17 (D-Santa Cruz)
* Ben Hueso (D), SD-40                      S. Monique Limón, SD-19 (D-Santa Barbara)

* These five members voted NO on AB 345, four others voted AYE

It is noteworthy that among the four Democrats who had voted AYE, their combined total in oil and gas donations had been $16,200, whereas for the five Senators who voted NO, their totals were $229,506, including $142,206 among the three Democrats.

If another such AB 345 should be introduced in 2021, it undoubtedly again would require a majority vote to pass beyond the Senate Natural Resources and Water Committee. If returning committee members Jones, Boregas, Hertzberg and Hueso were to again vote NO, then it would necessitate that returning members Stern and Allen, along with newest members Eggman, Laird and Limón to all vote AYE.

It is granted that neither Republican would consent to the “No Fossil Fuel Money Pledge”. Given their rather vehement pronouncements against AB 345 by Democrats Hertzberg and Hueso during the 8/05/20 hearing, the consent of either to the Pledge would be doubtful, and regardless, would not be reassuring. Even the specter of being held to account by being challenged during the March 2022 Primaries, may not serve as sufficient deterrence to another NO vote. Alternative strategies would been needed.

California Oil & Gas Lobby, and Mod Dems

The Western States Petroleum Association (WSPA) is the trade association for the oil industry, and the largest and most powerful corporate lobbying organization in California. “WSPA and Big Oil wield their power and influence over public discourse in 6 major ways: through (1) lobbying; (2) campaign spending; (3) serving on and putting shills on regulatory panels; (4) creating Astroturf groups: (5) working in collaboration with media; and (6) contributing to non profit organizations.”

The WSPA in California’s capital of Sacramento, spent $8.8 million lobbying state policymakers in 2019, more than any other interest group. Over the last five years, the group, which cultivates both Democratic and Republican lawmakers, has spent $43.3 million on lobbying, nearly double the total of the second-largest lobbying spender. During the 2019-2020 California Legislative Session, the greater oil and gas industry spent $34.5 million on lobbying.

In the 2017 Report “CA Democrats Who Received Gifts from Big Oil Gave Gifts to Big Oil”, it was reported how “Big Oil and the Western States Petroleum have effectively captured the regulatory apparatus in California, under the administrations of Governor Jerry Brown and his predecessor, Arnold Schwarzenegger. The connection between so-called “moderate” Democrats and Big Oil gifts is an example of how powerful an influence Big Oil exerts over politicians and regulators.”

“An informal caucus in California known as the “Mod Dems” (a.k.a. the Mod Squad) is a bloc of democrats that tends to side with the business community and oil interests. An analysis shows a correlation between higher gift values from Big Oil and friendlier votes from so-called “moderate democrats,” i.e. Oily Dems. From 2012 to 2016, the oil-affiliated groups gave legislators gifts with a value of $1.24 million.”

In the 2018 report “Oil Industry Spends Millions to Boost California Democrats”, it was stated: “Oil companies and other business interests are pooling funds on campaigns supporting other Democrats running for the Legislature… The petroleum industry has put $19.2 million into California politics in the 2017-18 election cycle… It’s all part of a broader push by business interests in recent years to shape the type of Democrats who hold power in the state Capitol… Big business has helped foster a cadre of more conservative Democrats in the Legislature. This “mod squad” amounts to a bloc that can kill or water-down environmental legislation.” The “mods” align with business interests and the handful of remaining Republicans to kill policies they say are too costly or too far to the left. Their voting bloc is most powerful in two-thirds votes reserved for taxes, but they have also been able to hold up bills needing a simple majority.”

“The Western States Petroleum Association regularly tops the list of Sacramento’s top lobbying spenders, and oil companies are major funders of PACs that shower chosen democrats with millions of dollars each cycle. The oil and gas industry remains an economic pillar in certain districts… in the kind of rural, inland agricultural and oil-producing districts areas where Moderate Democrats’ power base lies.” Assembly-member Joaquin Arambula (D-Fresno) leads the informal moderate caucus, although there’s no formal moderate Democrat designation. “New taxes are anathema to various business interests, as are measures that would lower the bar for cities and counties to enact levies of their own. Proposals to do either often falter for lack of Democratic support. A proposed oil severance tax has failed year after year.”

From the above examples and descriptions, it is evident that WSPA and the oil industry exert considerable sway, if not dominion, over the caucus of Moderate Democrats, and of Republicans. The label “Oily Dems” should be suggestive as to why “A proposed oil severance tax has failed year after year”.

It was stated above that “The petroleum industry has put $19.2 million into California politics in the 2017-18 election cycle”. Imagine whatever portion that goes to Republicans and Mod Dems to have have blocked a “proposed oil severance tax year after year”. With the SB 246 Oil and Gas Severance Tax estimated revenues $900 million per year, what would be the petroleum industry’s annual return on investment? Are legislators sacrificing hundreds of millions in exchange for individual’s tens of thousands?

It is not readily apparent how large the informal caucus is, and on which relevant committees they serve, and whether their allegiance would allow for any compromise or accommodation for supporting any oil related Bills.

Simultaneous Assembly and Senate Oil Severance Tax and Buffer Zone Bills Strategy

The takeaway lesson from the history of Oil and Gas Severance Tax Bills is that every solo Assembly or Senate Bill has died in committee, before reaching the Assembly or Senate for a Floor vote. This has allowed “special interests legislators” to stay “under the radar”. Such had also been the case with both SB 246 and AB 345 during 2019 and 2020.

Each Floor vote is an important milestone, as it requires each legislator to make a recorded vote. Particularly for some, to vote NO or to abstain (NVR) could signal and ultimately expose the extent of their monetary allegiance with special interests. One page of the Industry Playbook apparently is to hold over a first year Bill, to kill it in committee, or let it expire, to prevent it from ever reaching either Floor for a vote.

In considering the previously described successes of simultaneous Severance Tax Bills, and of the SB 54 and AB 1080 tandem experience for reaching Floors, then it should be more strategic to bring forth simultaneous Assembly and Senate versions of both SB 246 (call it SB246), and AB 345 (call it AB345) in early 2021. Each “Oil Bill” would appear before a different set of legislators in likely the same named committees in the respective Senate and Assembly houses, although evolve with different amendments, which would be fine.

Moderate Democrats Re-considerations

Perhaps in the minds of Moderate Democrats, accustomed to voting with industry, this dual Bills scenario could tilt the playing field, and interrupt the decades old Playbook script. Plus, there would be new wrinkles in 2021 for them to contemplate:

      • For a committee or chairperson to table their Oil Bill until 2022, while knowing that the chair of the same committee in the other house would be predisposed to hear and pass their Oil Bill, it certainly would invite heightened scrutiny and consternation, so maybe not worth the risks.
      • For each Oil Bill to progress unimpeded past each committee, to reach a Floor vote, would create a dilemma. Casting an AYE vote would jeopardize future industry contributions, whereas voting NO or abstaining (NVR) would be disquieting to constituents, and jeopardize their support.
      • Another dilemma would be whether to sign or to dodge the No Fossil Fuel Money Pledge. Either way, it would create unwelcomed consequences. The ongoing campaign, of urging legislators to commit to the Pledge, is here to stay and will grow.
      • The Sierra Club California has rolled out their Accountability Project, which tracks and publicizes so called “Dirty Money” contributions from Fossil Fuel companies to each legislator.
      • The Sierra Club will also issue their annual report card, grading each legislator’s voting performance on SC’s favored Bills, and with respect to their receiving “Dirty Money” contributions. The time-frame would be several months before the March 2022 Primaries.
      • The Oil Industry’s opposition claims of lost jobs and lost revenue for California, has largely been rebutted, leaving diminished credibility for anyone still using it to justify opposition.
      • During 2020, the number of organizations in support of AB 345 had grown to over 270, insisting on a buffer zone to protect proximate communities, as an Environmental Justice matter. During 2021, the numbers should be even greater and the clamor louder, becoming more difficult to dismiss.
      • There is ever increasing consternation about fossil fuels and greenhouse gas emissions, which exacerbate climate change, with eminent perilous consequences.
      • Other legislators are increasingly loosing patience with colleagues, who are seen as beholding to industry, to block or impede progress.
      • Particularly the younger constituents, fluent with social media, are becoming increasingly informed and educated about such climate and environmental justice issues, and expecting action.
      • Any legislator who abstains or votes against such increasingly popular Oil Bills in 2021, could face the ire and wrath of disgruntled constituents come the March 2022 Primaries.
      • Interest and support for these issues will not wane, but rather persist however long until such Bills ultimately are passed.

This is part of a checklist for Legislators who have become accustomed to receiving industry contributions, and may be reluctant to change, until their costs outweighs the benefits.

Oil Bills Opposition – Additional Strategies

It is apparent from previously cited online articles, that Moderate Democrats have allegedly thwarted Oil and Gas Severance Tax Bills for at least a decade. Should it be beneficial to bring to the table particularly Mod Dems with Oil Industry allegiance? Perhaps their stances against Oil Bills are more so a matter of protecting Oil & Gas Industry jobs within their district. The proceeds from most prior Oil Severance Tax Bills have been intended for the General Fund. However towards reaching conciliation, consideration could be given to allocating some percentage for any of the following:

      • Displaced O&G workers could be enrolled in job transition and retraining programs in alternate renewable energy and energy efficiency industries. Oil and Gas Industry jobs increasingly are less safe and healthy for workers, and more damaging to the environment. Alternatives include O&G Lower-Carbon jobs, and more sustainable and stable green energy jobs.
      • Experienced O&G workers might be re-deployed in the decommissioning of idle and abandoned wells, continuing to leak methane and contaminate water sources.
      • There could be funds for equal numbers of transitional jobs in infrastructure projects, particularly those to restore and repair from O&G industry impacts.

There may be some Mod Dems who remain steadfast in their alignment with Big Oil, more so for the welfare of themselves over the welfare of their constituents (principal over principle). One remedy might be to seek their reassignments to committees not relevant to Oil and Gas Bills. Another tact could be to build support from among their constituents, via social media, letters to the editors of local newspapers, etc. The more permanent option would be to build support for more progressive candidates during the March Primaries of most any even numbered year.

There undoubtedly will be legislators who are content with the status quo, and accustomed to the perks of campaign contributions, beyond their salaries. There might be a carve out of Severance Tax proceeds for campaign finance reform, towards leveling the campaign playing field with colleagues less amenable to influence money.

Plastics Bills

In regards to SB 54 and AB 1080, the identical Plastic Pollution Reduction Bills, Senator Ben Allen, with a host of coauthors, already has re-introduce SB 54, as of 12/07/20 (Great news!). It is not yet known whether a version of AB 1080 will also be re-introduced. A considerable amount of time, effort and devotion had been invested during 2019 and 2020, towards having arrived at seemingly mutually acceptable level of amendments among stakeholders, for each Bill. The heavy lifting has been done. It seemingly would take less effort to use the same strategic playbook, to again introduce dual Bills, which will run the same round of committees with ultimate Assembly and Senate Floor votes.

To forecast or expect a favorable outcome in 2021, firstly here again is what took place in 2019 for the two first year Bills:

In 2019, SB 54 had passed out of the Senate on 5/29/19 by 28-8-2, and subsequently was sent to the Assembly where it failed on 9/06, by 38-16-25 (Ayes-Noes-NVR).

AB 1080 had passed the Assembly Floor a day later on 5/30/19 by 44-19-17, and presumably was sent to the Senate, but never came up for a vote by 9/01.

It is peculiar that during the subsequent 3 months, from 5/30 until time expired on 9/01, the Senate never had the opportunity to take a vote on AB 1080, which had passed their own SB 54 on 5/29/19. It is difficult to conjecture that the apparent withholding of AB 1080 for so long had been unintentional. Had it been the responsibility of the Speaker of the Assembly Rendon to have transmitted the amended AB 1080 to the Senate, and/or for Senate pro Tempore Atkins to have brought the Bill before the Senate Floor for a vote? It has been well over a year, but still it should be important to uncover whether any rules or protocols had been violated in 2019. Regardless, measures and accountability would need to be in place well in advance, to prevent any future such mishap.

The above scenarios are based on static assumptions, such that both Bills would have unencumbered paths through the committees, that prior AYE votes could still be counted on, and so forth. However, nothing is guaranteed, nor can be taken for granted.

The Plastics Industry has been building numerous multi Billion dollar plastics production plants, and cannot be expected to remain idle, and risk any curtailments or infringements upon their plans to scale up production. The Industry is formidable, and here is some of what to expect.

As previously reported, in “Post Mortem of 54-1080 & Others”, on 8/28/20, during the last few days of the Legislative Session, a “54-1080 Coalition New Oppo Floor Alert” apparently was circulated, which simply stated: “Vote No on AB 1080 and SB 54”. The two pages listed the logos and names of 87 organizations in opposition, seeming as an implied ultimatum. Among them were “presumably” campaign contributors, familiar to state legislators. The timing for the release of the Floor Alert on the last Friday appeared to be strategic, as it left little time for supporters to react with any counter campaign before the Monday midnight deadline.

In anticipation of such another “Opposition Floor Alert” from being used again, what should be needed is an alternative “Support Floor Alert”, with likewise logos and names of organizations in support. Perhaps included should be tactfully stated drawbacks for withholding support.

It would seem curious and coincidental that in the Assembly, SB 54 had missed the 41 votes for passage by only 3 votes short in 2019, and 4 votes short in 2020. It would appear that the Plastics Industry had taken a page from the Oil Industry’s playbook, to have cultivated and secured just enough commitments from among the Moderate Democrats to abstain, along with Republicans, to assure defeat of the Bills both years. During the final few days, all of the last minute calling and coaxing of Assembly Moderate Democrats to change their votes had been futile. As a blunt metaphor, it would appear that all of the checks had already been cashed.

What Could Be Different for 2021?

Once again, there are certain additional strategies towards leveraging passage. In the spirit of the “No Fossil Fuel Money Pledge”, a likewise “No Plastics Money Pledge” could be deployed in a likewise manner. The two Website domain names, NoPlasticsMoney.org, and NoBigPlasticsMoney.org, have been bought and secured. A draft of much of the intended language has been available for editing for the past several weeks, which can be viewed at “The No (Big) Plastics Money Pledge”. Feel free to also make proposed edits.

What next is hoped for would be for a reputable organization to assume ownership of the two Websites, with the commitment and experience to develop, manage, and utilize, preferably nationally, to the fullest extent possible. Such would require a Webmaster to first design the Website, preferably similar in appearance and functionality, to the increasingly popular and utilized Website www.NoFossilFuelMoney.org. Another onerous task would be to assemble the list of Plastics and Chemical companies from which contributions would be prohibited. A reasonable starting point, at least for California, would be to select those companies that typically had been major “Dirty Money” contributors, particularly to Legislature Democrats, from the Sierra Club California‘s spreadsheet. Alternatively the California Secretary of State’s Website (​sos.ca.gov​) has a powerful tool to investigate elected officials’ campaign contributions, using their “Power Search” tool.

Nearly all of the previously discussed strategies for the Oil Bills, could also be adapted to bolster the odds for passage this year of the Plastic Pollution Reduction Act. If for any unforeseen reasons, the Bill(s) becomes carried over to 2022, then whatever new lessons would be learned and new strategies devised, could then be applied. If any failings in 2021 would be attributable to Moderate Democrats, then which and how many might become vulnerable during the March 2022 Primaries, to shift the Assembly balance just enough in time, for the second year?

Recommendations

On the last two pages of “Post Mortem of 54-1080 & Others”, there were proposed strategies for prior to the return of the Legislature. Now that the Legislature has reconvene for the 2021-2022 Session, here are additional strategies and ideas that should be worthy of pursuit.

It should be imperative to urge the Legislature to take whatever steps necessary to get an Oil and Gas Severance Tax passed, and if necessary, in every successive Legislative Session until it is finally done. Each year further delayed will cost California another approximately $900 million in lost tax revenue (Based on SB 246 estimates).

It is coincidental that the Sierra Club “estimates that there is a very high likelihood that the state will end up paying for California Resources Corporation’s $900 million worth of closure obligations if it doesn’t take corrective actions quickly. Today the CRC is sitting on nearly 18,000 wells, the vast majority of which have either been sitting idle for years, haven’t produced at all in 2020, or produced only a trickle of oil”… and leaking methane. On 10/13/20, CRC emerged from Chapter 11 bankruptcy. Furthermore, the California CST (Council on Science and Technology) estimates that the average cost… to plug all of California’s 107,000 oil and gas wells could exceed $9.2 billion.

In 2008, AB-2 had passed both houses, but was vetoed by Republican Gov Schwarzenegger. Assuming a round figure of say $1 Billion Severance Tax revenue per year, that veto has cost Californians about $11 Billion during the subsequent 11 years, and still counting. So how much longer should California remain as the only oil producing state without an Oil and Gas Severance tax?

It should be urgent to get an AB 345 version Oil and Gas Production Buffer Zone Bill passed, on an expedited basis for this year. The air pollution, both volatile organics and fine particulate matter, posing health risks and causing health consequences for neighboring communities, have been well documented and are ongoing. These lives also matter. Apart from the Environmental Justice violation being borne primarily by minority communities, there is the Climate Justice matter of such dirty crude and fugitive methane adversely contributing to climate change.

It should be a priority for the Legislature to finish the task of getting the California Circular Economy and Plastic Pollution Act across the finish line. The obstacles encountered with AB 1080 and SB 54 during 2019 and 2020 have been addressed, and can be mitigated. If simultaneous Bills are again introduced, then there will be up to two years to get either one passed. It should not be the left to Recology and California voters via the ballot initiative in November 2022, to take on the Plastics industry having their unlimited spending capacity.

According to the National Conference of State Legislators (NCSL), the average base salary among the 41 states that pay their legislators for 2020 was $38,370. “California legislators remain on top of the compensation pile with a salary of $114,877.” If for nothing more than a matter of pride and self worth, our Senators and Assembly Members should be able to devise the means and to have the determination to prevail.

Furthermore, “following the 2020 election, in the Legislature, Democrats have a 31-9 majority in the Senate and a 60-19 majority in the House. The party also controlled the governorship, creating a Democratic state government trifecta. At the start of the 2021 session, California was one of six state legislatures where Democrats had a veto-proof supermajority in both chambers.”

The California Legislature has reconvened on Monday, January 11. Will grassroots environmental organizations find common cause to join together, to help enable the Legislature to chart the course for these particular Bills in 2021? What will be other “Must-Pass” Bills that could benefit from a broader base of support? Who has an amicable rapport to approach Legislators with any such recommendations? Consider lending whatever time and effort you can manage, to help make 2021 a year of multiple legislative victories, and to help ameliorate the abysmal memories of 2020.

Thank you for your indulgence. Figures are mostly single sourced from staff reporters, so any corrections are welcome. Share with and forward to others as desired. Copy and use any or all as you wish.

Remember, “It always seems impossible, until it’s done” – N. Mandella