CITY OF CLEARLAKE
ORDINANCE NO. ORD-2011-149
AN URGENCY ORDINANCE OF THE CITY OF CLEARLAKE, CALIFORNIA IMPOSING A TEMPORARY MORATORIUM ON THE INSTALLATION OF SMART METERS AND RELATED EQUIPMENT IN, ALONG, ACROSS, UPON, UNDER AND OVER THE PUBLIC STREETS AND OTHER PLACES WITHIN THE CITY
The City Council of the City of Clearlake does ordain as follows:
Authority
The City Council enacts this urgency ordinance under the authority granted to cities by Article XI, Section 7 of the California Constitution and Section 36937 of the California Government Code.
Findings
The City has a franchise agreement with Pacific Gas and Electric (“PG&E”) that has been in effect since 1981.
The City retains authority under Article XII, Section 8 of the Constitution to grant franchises for public utilities and, pursuant to California Public Utilities Code Section 6002 “ . . . may in such a franchise impose such other and additional terms and conditions not in conflict with this chapter, whether governmental or contractual in character, as in the judgment of the legislative body are to the public interest”.
The California Public Utilities Code Section 2902 reserves the City’s right to supervise and regulate public utilities in matters affecting the health, convenience and safety of the general public, “including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation”.
PG&E is now installing Smart Meters in central and northern California and is installing these meters in the City of Clearlake.
Concerns about the impact and accuracy of Smart Meters have been raised nationwide, leading the Maryland Public Service Commission to deny permission of June 21, 2010 for the deployment of Smart Meters in that state. The State of Hawaii Public Utility Commission also recently declined to adopt a smart grid system in that state. The California Public Utilities Commission (“CPUC”) recently had before it a petition from the City and County of San Francisco and other municipalities seeking to delay the implementation of Smart Meters until questions about their accuracy can be evaluated.
Major problems and deficiencies with Smart Meters in California have been brought to the attention of the City Council, including the significant concerns of many City residents as to the potential negative impacts to health and privacy. Additionally, this Council is aware of PG&E’s confirmation that Smart Meters have provided incorrect readings costing taxpayers untold thousands of dollars in overcharges and that PG&E’s records outlined “risks” and “issues” including an ongoing ability to recover real-time data because of faulty hardware from PG&E vendors.
The ebb and flow of gas and electricity into homes discloses detailed information about the private details of daily life. Energy usage data, measured moment by moment, allows the reconstruction of a household’s activities: when people awake, when they come home, when they are on vacation, and even when they take a hot bath. Smart Meters represent a new form of technology that relays detailed hitherto confidential information reflecting the times and amounts of the use of electric power without adequately protecting that data from being accessed by unauthorized persons or entities and, as such, these meters pose an unreasonable intrusion of utility customers’ privacy rights and security interests. The fact the CPUC has not established safeguards for privacy in its regulatory approvals may violate the principles set forth by the United States Supreme Court in Kyllo v. United States (2001), 533 U.S. 27.
There is now evidence showing that problems with Smart Meters could adversely impact the amateur radio communication network that operates throughout California and neighboring states, as well as other radio emergency communication systems that serve first responders, government agencies, and the public.
Significant health questions have been raised concerning the increased electromagnetic frequency radiation (“EMF”) emitted by the wireless technology in Smart Meters, which will be in every house, apartment, and business, thereby adding more man-made EMF to our environment on a continuous basis.
Federal Communications Commission (“FCC”) safety standards do not exist for chronic long-term exposure to EMF or from multiple sources and reported adverse health effects from electromagnetic pollution include sleep disorders, irritability, short-term memory loss, headaches, anxiety, nausea, DNA breaks, abnormal cell growth, cancer, premature aging, etc. Because of untested technology, international scientists, environmental agencies, advocacy groups, and doctors are calling for the use of caution in wireless technologies.
The primary justification given for the Smart Meters program is the assertion that it will encourage customers to move some of their electricity usage from daytime to evening hours; however, PG&E has conducted no actual pilot projects to determine whether this assumption is in fact correct. Non-transmitting time-of-day meters are already available for customers who desire the, and enhanced customer education is a viable non-technological alternative to encourage electricity use timeshifting. Further, some engineers and energy conservation experts believe that the Smart Meter program could, in totality, actually increase total energy consumption and, therefore, the carbon footprint.
Assembly Member Jared Huffman has requested the California Council on Science and Technology to advise him on whether the FCC’s standards for Smart Meters are sufficiently protective and to assess whether additional technology-specific standards are needed for Smart Meters.
A response to Assembly Member Huffman from the Council on Science and Technology is expected in the near future.
Assembly Member Huffman has also recently introduced legislation (Assembly Bill 37) which would add a section to the Public Utilities Code to require the CPUC to identify alternative options for customers who do not wish to have a wireless Smart Meter installed and to allow customers to opt-out of wireless Smart Meter installation, including removal of existing Smart Meters when requested by the customer. Most importantly, the legislation would suspend deployment of Smart Meters until the CPUC meets the above requirements.
On March 10, 2011, CPUC President directed PG&E to prepare a proposal that will allow some form of opt-out for customers who object to Smart Meters.
Because the potential risks to the health, safety, and welfare of City residents are so great, the City Council wishes to adopt a moratorium on the installation of Smart Meters and related equipment within City limits. The moratorium period will allow the Council on Science and Technology and the legislative process referenced above to be completed and for additional information to be collected and analyzed regarding potential problems with Smart Meters.
There is a current and immediate threat to public health, safety, and welfare because, without this urgency ordinance, Smart Meters or supporting equipment will be installed or constructed or modified in the City without PG&E’s compliance with the CPUC process for consultation with the local jurisdiction, the City’s Code requirements, and will subject residents of the City to the privacy, security, health, accuracy, and consumer fraud risks of this unproven Smart Meter technology.
The City Council hereby finds that it can seen with certainty that there is no possibility that the adoption and implementation of this Ordinance may have a significant effect on the environment. This Ordinance does not authorize the construction or installation of any facilities and, in fact, imposes greater restrictions on such construction and installation in order to protect the public health, safety, and general welfare. This Ordinance is, therefore, exempt from the environmental review requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations.
There is no feasible alternative to satisfactorily study the potential impact identified above as well or better with a less burdensome or restrictive effect than the adoption of this interim urgency moratorium ordinance.
Based on the foregoing, it is in the best interest of public health, safety and welfare to allow adequate study of the impacts resulting from the Smart Meter technology and it is, therefore, appropriate to adopt a temporary moratorium which would remain in effect from the date of adoption until December 31, 2011, unless the City acts to repeal it prior to that date.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF CLEARLAKE, ORDAIN AS FOLLOWS:
MORATORIUM.
From and after the effective date of this Ordinance, no Smart Meter may be installed in or on any home, apartment, condominium or business of any type within the City of Clearlake and no equipment related to Smart Meters may be installed in, on, under, or above any public street or public right-of-way within the City of Clearlake.
urgency findings
This City Council finds and determines that: (a) there is a current and immediate threat to the public peace, health, or safety; (b) the moratorium must be imposed in order to protect and preserve the public interest, health, safety, comfort, and convenience and to preserve the public welfare; and (c) It is necessary to preserve the public health and safety of all residents or landowners adjacent to such uses as are affected by this interim ordinance was well as to protect all citizens of the City of Clearlake by preserving and improving the aesthetic and economic conditions of the City.
CEQA
The City Council hereby finds and determines, that this ordinance is not subject to the requirements of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15060(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment.
Severability
If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof.
Effective Date
This ordinance shall become effective immediately upon adoption if adopted by at least a four-fifths vote of the City Council.
Publication
The City Clerk shall certify to the adoption of this ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Clearlake.
PASSED AND ADOPTED this 24 day of March, 2011, by the following vote:
AYES: Mayor Joyce Overton, Vice Mayor Joey Luiz, Council Member Jeri Spittler, Council Member Curt Giambruno, Council Member Judy Thein
NOES: None
ABSENT: None
ABSTAIN: None
___________________________________
Mayor, City of Clearlake
ATTEST:
__________________________________
City Clerk, City of Clearlake
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