Tag Archive for Stanislaus County

Protecting the Valley Elderberry Longhorn Beetle: One of Many Species Used By Unions to Block Projects Under CEQA Until the Owner Signs a Project Labor Agreement

Public objections based on the California Environmental Quality Act (CEQA) to proposed projects in California’s Central Valley often focus on how these projects could affect habitats of several species. Some prominent examples of these creatures are the Swainson’s Hawk (a California threatened species), the San Joaquin kit fox (a federally endangered species and a California threatened species), the Western burrowing owl (a California species of special concern), the giant garter snake (a federally threatened species and California threatened species), the vernal pool fairy shrimp (a federally threatened species), the Delta smelt (a federally threatened species and California threatened species), the California red-legged frog (a federally threatened species), and the Valley elderberry longhorn beetle (a federally threatened species).

Now, the U.S. Fish and Wildlife Service is preparing to remove the Valley elderberry longhorn beetle from the federal Endangered Species Program list, according to articles in the October 1, 2012 Sacramento Business Journal (Feds Urge Beetle’s Removal from Endangered Species List) and the October 2, 2012 Sacramento Bee (Valley Elderberry Longhorn Beetle May Fall from ‘Threatened’ List). This move is a result of legal actions by the Pacific Legal Foundation, backed by farm bureaus, developers, and special district public agencies that build and manage flood control systems such as levees.

As early as 2006, the U.S. Fish and Wildlife Service proposed to end the beetle’s threatened species status: “The slowdown in habitat loss, the protection and restoration of riverine habitat, and the increase in valley elderberry longhorn beetle occurrences, together have been the major reasons for the Fish and Wildlife Service (FWS) having considered delisting this species.”

Valley Elderberry Longhorn Beetle Habitat – still protected in 2012 in Roseville, California

Protecting and relocating existing elderberry shrubs and planting new elderberry seedlings is apparently expensive and inconvenient. The Rio del Oro development in the City of Rancho Cordova actually has its own “Valley Elderberry Longhorn Beetle Mitigation Plan” in its final Environmental Impact Report.

I checked to see if environmental law firms specializing in “greenmail” on behalf of construction unions had used threats to the Valley elderberry longhorn beetle as an environmental objection to proposed projects under the California Environmental Quality Act (CEQA). I did find one.

In a January 3, 2011 comment letter concerning the Initial Study/Mitigated Negative Declaration for the Fink Road Solar Farm in Stanislaus County (proposed by Turlock-based JKB Energy), the law firm of Adams Broadwell Joseph & Cardozo had this to say on behalf of California Unions for Reliable Energy (CURE) about the Valley Elderberry Longhorn Beetle:

3. The Project may result in significant impacts to the Valley Elderberry Longhorn Beetle

The Valley elderberry longhorn beetle is a federally threatened species. The MND states that the beetle may be present on the Project site but does not propose adequate mitigation measures to avoid or reduce the Project’s impacts. In Mr. Cashen’s opinion, impacts to the Valley elderberry longhorn beetle are not less than significant.

The preconstruction surveys described in the MND may not be sufficient to detect elderberry shrubs within the Project site. Specifically, the MND does not provide basic information as to who will conduct the survey and when it will be conducted. The Project may, therefore, cause undisclosed and unmitigated impacts to a federally threatened species.

If elderberry shrubs are found during preconstruction surveys, the MND proposes to prohibit ground-disturbing activities within 20 feet of the shrub to avoid impacts.117 This measure, however, would not avoid the Project’s impacts. The USFWS only assumes complete avoidance when a 100-foot buffer is established. Shading and wind deflection caused by the Project’s structures will impact soil temperature and evaporation. In addition, maintenance water to clean the solar panels will increase soil moisture. According to Mr. Cashen, these factors may have an adverse impact on elderberry plants if an adequate buffer is not established.

If avoidance is not feasible, the Applicant will have to obtain a federal Incidental Take Permit and comply with USFWS guidelines regarding transplanting affected elderberry shrubs to a conservation area and potential replacement planting.122 The MND, however, does not require the Applicant to comply with these federal rules if impacts to elderberry shrubs cannot be avoided. Without specific, enforceable mitigation measures to reduce the Project’s impacts, the County may not conclude that impacts to Valley elderberry longhorn beetles will be less than significant.

The elderberry longhorn beetle objections, along with the other objections, apparently did the job for California Unions for Reliable Energy. As reported in a March 1, 2012 staff report to the Stanislaus County Planning Commission:

The County received a comment letter from Adams Broadwell Joseph & Cardozo representing the California Unions for Reliable Energy (CURE). In response to this comment letter, the project applicant and CURE have signed an Agreement outlining how the applicant will address the issues and concerns raised by CURE in their comment letter. As a result, the project applicant has made minor revisions and modifications to the proposed project, including commitment to various environmental commitments that will be incorporated into the proposed project and made conditions of approval by the County.

I’m going to guess that this was one of the three Project Labor Agreement negotiations “resolved” for projects in Stanislaus County, as cited by Tony LaDoux of the Sheet Metal Workers Union Local No. 162 (now part of the consolidated Sheet Metal Workers Union Local No. 104) at the June 28, 2011 meeting of the Stanislaus County Board of Supervisors (who voted 5-0 for a Fair and Open Competition ordinance to ban Project Labor Agreements on county projects).

The county’s final approval of the Fink Road Solar Farm included the following plan regarding the Valley elderberry longhorn beetle:

To avoid and minimize impact to valley elderberry longhorn beetle, prior to construction, a survey shall be conducted for elderberry shrubs. The survey area shall include all areas subject to disturbance, and a 250 buffer area extending beyond areas subject to disturbance. In the event that any elderberry shrubs are found, the project applicant shall determine if the shrubs can be completely avoided. Complete avoidance would require no ground disturbance with 20 feet of the shrub. If complete avoidance is not feasible, the project applicant shall comply with USFWS compensation guidelines for valley elderberry longhorn beetle (USFWS 1999).

With California Unions for Reliable Energy out of the way and the Valley elderberry longhorn beetle safely preserved wherever it might be found, the Stanislaus County Planning Commission approved a CEQA Mitigated Negative Declaration for the Fink Road Solar Farm on a 5-0 vote on April 19, 2012, with no public objections.

Unions Use Power Over California Legislature to Suppress Local Government Contracting Authority and Push for Project Labor Agreements

On April 12, the California State Assembly approved Senate Bill 829, a union-backed proposal to exert additional pressure on voters and local elected officials to abandon any policies or policy aspirations to prohibit their local governments from entering into contracts that require construction companies to sign Project Labor Agreements (PLAs) with construction trade unions.

Political party affiliation determined the 50-23 vote (with seven legislators not voting): Democrats supported it; Republicans opposed it.

Senate Bill 829 is the latest move of California unions in their quest to stop ambitious local grassroots movements to protect fair and open bidding competition on taxpayer-funded construction. Union leaders recognize there are still a few political officials and business leaders in California who haven’t surrendered or acquiesced to the political power of the California Labor Federation and the State Building and Construction Trades Council of California. Unions are using their firm grip on the California State Legislature to derail this movement before it spreads out of their control throughout the state.

Round One: The First State Government Attack on Behalf of Unions to Stifle Local Control

In the chaotic and emotional waning days of the 2011 legislative session, the California State Assembly Speaker – John Pérez (D-Los Angeles) – and the leader of the California State Senate – Darrell Steinberg (D-Sacramento) – gutted and amended Senate Bill 922, a bill originally introduced by another legislator about tuberculosis screening. As the new authors of the hijacked bill, these legislative leaders turned it into a high-priority union-backed bill meant to stop the proactive efforts of voters and local elected officials to blunt union interference in the competitive bidding process.

Despite aggressive opposition from construction associations, taxpayer groups, local elected officials, and local government organizations such as the California State Association of Counties (see opposition statement here) and the League of California Cities (see opposition statement here), Senate Bill 922 whipped through the Assembly and Senate on strict party-line votes – Democrats in support; Republicans in opposition. Claiming the bill “seems fair to me – even democratic,” Governor Jerry Brown signed it into law.

Senate Bill 922 (now Public Contract Code Section 2500) prohibits California’s 58 counties from enacting charter provisions or ordinances that forbid counties from entering into contracts that require construction companies to sign Project Labor Agreements (PLAs) with unions. The bill also prohibited California’s 362 “general law” cities from enacting such ordinances, because general law cities must submit to the authority of the state government for their municipal contracting policies.

But the legislature could not use Senate Bill 922 to directly undermine the local contracting authority of California’s 120 charter cities that exercise “home rule” with their own local charters. Charters are essentially mini-constitutions that allow city governments to supersede state authority over purely municipal affairs.

Instead of using a stick, the legislature had to withhold a tasty carrot from these charter cities. To discourage them from using their constitutionally-granted local authority over municipal contracting as a basis for prohibiting Project Labor Agreements, Senate Bill 922 creates a financial disincentive by cutting off state funding for construction projects in charter cities that enact charter amendments or ordinances prohibiting contracts that mandate contractors to sign Project Labor Agreements.

And charter cities that already have these policies will NOT be exempted with a “grandfather” clause. In the three charter cities (Fresno, Chula Vista, and Oceanside) where voters or city councils had already enacted policies prohibiting city contracts that mandate Project Labor Agreements, the city councils or voters would need to repeal the policies by January 1, 2015 or lose state funding for future construction projects.

See “Brown Tries to Stop Ban on PLAs: Signs Law Supporting Union Contracts” – FOX News Channel – October 7, 2011

Senate Bill 922 Was Somewhat Effective in Stopping Policies to Guarantee Fair and Open Competition

When it become law, Senate Bill 922 had an immediate impact on local policy initiatives to ensure fair and open bid competition for government construction contracts.

The new law nullified a Fair and Open Competition charter provision approved in November 2010 by 76% of San Diego County voters – a provision that was previously established as an ordinance through a 5-0 vote of the San Diego County Board of Supervisors in March 2010. It also nullified a Fair and Open Competition ordinance approved on a 5-0 vote of the Orange County Board of Supervisors in November 2009 and a Fair and Open Competition ordinance approved on a 5-0 vote of the Stanislaus County Board of Supervisors in July 2011.

Plans under the “20 in 2010” and “21 in 2011” strategies of Associated Builders and Contractors (ABC) of California for more county Fair and Open Competition ordinances were abandoned. Under my direction as project manager, the executive committee for the “Fair and Open Competition – Sacramento” campaign abandoned its signature collection from Sacramento County voters on petitions to place a charter amendment on the ballot in 2012 so voters could prohibit their county government from entering into Project Labor Agreements. Senate Bill 922 had made the effort moot.

With its allies in the Coalition for Fair Employment in Construction and the Western Electrical Contractors Association (WECA), ABC of California and its affiliated chapters had also been lobbying for Fair and Open Competition ordinances at a dozen additional counties with significant populations and at several other local governments. We had also been developing strategies for voters to approve Fair and Open Competition ballot measures for three specific Northern California local governments where unions controlled a majority of the elected officials.

The State Building and Construction Trades Council of California had reason to gloat about undermining these efforts. But soon it was obvious that the unions had not hurt the charter cities hard enough.

Round Two: Unions Need the California Legislature and Governor Brown to Enact Yet Another Law

In December 2011, the “Fair and Open Competition – Sacramento” campaign, under my direction as project manager, submitted nine boxes of petitions signed by voters to place a charter amendment on the ballot in 2012 so voters in the City of Sacramento could prohibit their city government from entering into contracts that mandated Project Labor Agreements. Unions and their political allies got a break when the Sacramento County Registrar of Voters subsequently determined that our signature validity rate was too poor to qualify the Fair and Open Competition charter amendment for the ballot. An ambitious plan to protect the Merit Shop philosophy went awry, and the California State Building and Construction Trades Council had reason to gloat again, this time claiming it was “nothing short of a complete disaster for the ABC” and “a completely disastrous outcome for their enemies at ABC.”

Not all was lost for the beleaguered advocates of economic freedom, even as my seven-year tenure as ABC of California’s State Government Affairs Director came to an end. Voters qualified a ballot measure (Proposition A) for the June 2012 ballot that would prohibit the City of San Diego from entering into contracts that required construction companies to sign Project Labor Agreements. It was the first initiative qualified by City of San Diego voters to appear on the city ballot since 1998.

The city councils of Escondido, El Cajon, and Costa Mesa proceeded with proposed charters that would allow voters to ensure fair and open competition for city construction contracts. Californians obviously still seek the best quality construction at the best price: an unacceptable option for union leaders, whose mission is always to obtain a union monopoly on construction.

The Democrat majority in the legislature needed to do something for the unions, and fast!

On February 23, State Senator Michael Rubio (D-Bakersfield) amended Senate Bill 829 in a new attempt to eliminate any possible ambiguity concerning the financial punishment of charter cities where voters or elected officials dare to prohibit city contracts from including mandates for construction companies to sign a Project Labor Agreement with unions. Perhaps not since consideration of Assembly Bill 60 (placing the eight-hour day in statute) in 1999 has the stated motivation for a bill been so brazen in its attack on specific business groups. Here’s an excerpt from the March 12, 2012 bill analysis for the Assembly Business, Professions, and Consumer Protection Committee:

Purpose of this bill. According to the author, “This bill is necessary because anti-union groups/associations continue their campaign to eliminate the option for local governments to utilize PLAs…These are mainly political attacks because PLAs are negotiated on a project-by-project or funding source (i.e., bond) basis and PLAs are not mandated under any state laws. Anti-PLA/union lobbyists, mainly the Associated Builders and Contractors, pushed bans in a few counties (Stanislaus, Orange, San Diego) and Charter Cities (Chula Vista and Oceanside) based on intense lobbying and campaigns waged by non-union contractor organizations that voluntarily choose not to bid on projects governed by a PLA.

The State Building and Construction Trades Council of California is thrilled to see this bill sailing through the legislature despite resistance again from a coalition of construction associations, taxpayer groups, local elected officials, and local government organizations similar to the one that opposed Senate Bill 922 in 2011. Nevertheless, opposition to the bill continues. Here is the written statement of Assemblywoman Shannon Grove (R-Bakersfield) on the Assembly floor in opposition to Senate Bill 829:

Assemblywoman Shannon Grove Blasts Unconstitutional Attempt to Limit Local Control – April 12, 2012

Here is the video of her floor statement:

Shannon Grove Blasts SB 829 as Unconstitutional Attempt to Limit Local Control – April 12, 2012