Lawsuit Filed To Stop La Jolla Fireworks
Tuesday, June 29, 2010
A local environmental organization filed a lawsuit last week to stop the Fourth of July fireworks display in La Jolla Cove. We discuss the details of the lawsuit with Adam Harris, president of the La Jolla Community Fireworks Foundation and Coastal Environmental Rights Foundation Attorney, Marco Gonzalez.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. The La Jolla Cove fireworks display has provided a festive end to Fourth of July celebrations for 25 years. But now, a coastal environmental group is saying we need to take another look at that tradition. The Coastal Environmental Rights Foundation has sued the La Jolla Community Fireworks Foundation and the City of San Diego to stop the fireworks this Fourth of July. They claim the firework residue pollutes sensitive marine areas like the La Jolla Ecological Preserve and the Children's Pool. Meanwhile, La Jolla officials say they've been unfairly targeted with this lawsuit. We’ll have both sides of the story this morning. We start with Adam Harris. He’s a board member with the La Jolla Community Fireworks Foundation. Good morning, Mr. Harris. Thank you for joining us.
ADAM HARRIS (Board Member, La Jolla Community Fireworks Foundation): Thanks so much for having us.
CAVANAUGH: Now I want to let our listeners know that they can call in on this topic. Our number is 1-888-895-5727 or they can go online, KPBS.org/thesedays. Mr. Harris, what’s your reaction to this lawsuit from the Coastal Environmental Rights Foundation?
HARRIS: You know, obviously, we were very disappointed when we received the lawsuit. It wasn’t 100% unexpected but, you know, the good thing is the Fourth of July’s just right around the corner so we’re really excited about the event.
CAVANAUGH: Well, as you say, you weren’t completely surprised about this lawsuit, tell us what the – kind of notification you’ve gotten and what’s led up to this.
HARRIS: Well, you know, there – obviously, Marco’s been in the media for quite some time these days and, you know, for us it was more of a – we’re getting the sense it’s more about self-promotion than anything. But, you know, we received – we were served yesterday and yet the lawsuit was filed with the city on Friday and, you know, I found out about the lawsuit from the media. So we were – we’re a little, you know, discouraged from that but at the same time, you know, it wasn’t a completely…
CAVANAUGH: Now the Marco that you’ve referred to is Marco Gonzalez. He’s the attorney representing the Coastal Environmental Rights Foundation, and we’re going to have him on just after you, Mr. Harris. And I’m wondering, did you try to work out any of the concerns that were being raised about possible pollution about the fireworks display before perhaps the lawsuit was filed?
HARRIS: Yeah, we did, actually. We offered to sit down and talk with Mr. Gonzalez but he said the only discussion could be about canceling the fireworks. And, you know, we’re a community of families and we’re very patriotic and we said we’re not going to let one bully an entire community when the city and everyone of authority has told us we are moving forward appropriately.
CAVANAUGH: And what sort of permitting does the La Jolla Fireworks Foundation have to get to be able to shoot off fireworks on the Fourth of July?
HARRIS: We applied for a San Diego Park permit as was required by the City of San Diego. We’ve complied for the last 25 years as required by the City of San Diego. And our pyrotechnic company has obtained the permits from the fire department, so, you know, from all the necessary players in the city who have the authority to issue us a permit, we’ve complied. And we’ve been doing so for the last 25 years.
CAVANAUGH: Now when the fireworks at the La Jolla Cove fireworks display are shot from – where do they actually originate?
HARRIS: They originate from the grass above the actual cove. And they’re off to sort of the right side. You know, where sort of near that hut is…
HARRIS: …down on Ellen Scripps Browning, so they’re actually away from the sensitive area that Mr. Gonzalez points out.
CAVANAUGH: Now how did you decide to angle that fireworks? Did you have any concerns about pollution at the time?
HARRIS: You know, to be honest with you, the fireworks company has been doing this for 25 years. It’s the same company that did the Super Bowl in San Diego, they do Padre events, they do Pops down in – the Summer Pops down at Humphrey’s and on the bay, and these guys know what they’re doing. They’re doing it for safety, they’re conscientious of the environment, making sure that anything if there were to fall into the ocean, it could be easily removed, meaning scraps from, you know, the casings and whatnot. But, you know, there’s no definitive evidence backing the environmental pollution claims. Sea World’s been water testing for many years now and we have those reports and there’s no evidence. So we’re very, you know, we’re very positive that we are not doing – we’re not doing any harm. And, again, you know, I live in La Jolla. I love the coastline. I swim in those waters. Now, you know, I’m not alone. La Jolla is surfers, divers, fishermen, beachgoers, these are people that cherish the ocean with their families. So, you know, no one here would ever do any harm to our coastal environment. And, you know, we’ve a really important neighbor in our community and that’s the Scripps Institute of Oceanography (sic). You know, if there were any group to really raise, you know, an alarm saying that we’re polluting the environment, they would’ve called us. We know those people and they know who we are.
CAVANAUGH: So, in other words, in all that time, you have not heard any kind of environmental question about the fireworks display on the Fourth of July?
HARRIS: Absolutely not. I mean, and if you take that one step further, I mean, look at Mr. Gonzalez, he’s been an attorney for 13 years in the community. Why wait for one week prior to an event? You know, he’s had 13 years to sue our fireworks show. He’s been to our fireworks show. He admitted to that. So it’s one of those things where why us, you know? There’s, you know, downtown, which he made an agreement with. There’s Del Mar. He hasn’t even talked to Ocean Beach. I feel like we’re being targeted.
CAVANAUGH: Now we have a caller on the line. As I say, we are taking your calls at 1-888-895-5727. Cory is on the line from Clairemont. Good morning, Cory. Welcome to These Days.
CORY (Caller, Clairemont): Good morning. Thanks for taking my call. I’d like your guest to explain why he’s picking on the messenger when he’s also bragging about getting city permits but the city doesn’t have a jurisdiction over water pollution, the state agency does. Why isn’t his organization getting permits from the state agency? And, secondly, why does he think he can actually pick up the chemicals that get into the water just because they’re picking up the scraps from the fireworks? And I’ll take my answer off the air. Thank you.
CAVANAUGH: Thank you very much, Cory. Mr. Harris.
HARRIS: Well, you know, in terms of what he’s asking is I’ve been told by not only our council but also from the City that the City has jurisdiction to issue us an exemplary permit for the case of the Coastal Development Act. And in this case, you know, we’ve complied with what the City requests and they do have jurisdiction to issue us a permit and they have.
CAVANAUGH: Okay. So I’m interested in something that you said just before and that is that in some way you think that the La Jolla Fireworks Foundation has been targeted by this lawsuit. What would be the motive behind that?
HARRIS: You know, I have no idea. That’s for Mr. Gonzalez to answer. But, you know, for Ocean Beach shoots them over the water as well and there’s areas of sensitive biological significance in those waters as well, so why us?
CAVANAUGH: Well what happens now? I mean, where does it go from here with the lawsuit?
HARRIS: Well, I mean, on Wednesday, we have a temporary restraining order hearing, you know, and the City will be included and depending on what the judge rules, it could be – it could be actually detrimental to the entire San Diego County. The lawsuit would require all fireworks displayed in the City of San Diego to be cancelled because none of the permits that have been let by the City of – the City for fireworks would have to be subject to CEQA and Mr. Gonzalez basically’s made it his mission to cancel the Fourth of July in San Diego.
CAVANAUGH: Well, isn’t it true, though, I mean, basically the only probably that this lawsuit has is with the La Jolla Cove fireworks.
HARRIS: It does but the – because each – the City has to issue a special permit…
HARRIS: …for each of the shows. And because it applies to CEQA, which is some legislation, you know, with regard to issuing permits, that would ultimately cancel all the events.
CAVANAUGH: Now do you have any intention of continuing the fireworks display regardless of the outcome of this…
HARRIS: Absolutely. Absolutely.
CAVANAUGH: So you are intending to set fireworks off no matter what happens in court tomorrow.
HARRIS: Oh, no, no. We – I mean, we’re going to apply, you know, we’ll make sure that we comply with the law but we have – we’re very optimistic that we’ll have a positive ruling.
CAVANAUGH: Well, Mr. Harris, I really want to thank you so much for speaking with us.
HARRIS: Absolutely. Thank you.
CAVANAUGH: I’ve been speaking with Adam Harris. He’s board member for the La Jolla Community Fireworks Foundation. And when we return, we’ll be speaking with Marco Gonzalez. He is the attorney representing the Coastal Environmental Rights Foundation, who is suing to stop the La Jolla Cove fireworks display this Fourth of July. And we’ll be taking your calls and comments. 1-888-895-5727 is the number to call or you can go online, KPBS.org/thesedays. You’re listening to These Days on KPBS.
CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We continue our discussion about the La Jolla Cove fireworks display and the lawsuit that has been filed to stop that fireworks display this Fourth of July. My guest now is Marco Gonzalez. He’s the attorney representing Coastal Environmental Rights Foundation, and they filed the lawsuit against the La Jolla Cove fireworks. Good morning, Marco. Thank you for being here.
MARCO GONZALEZ (Attorney): Good morning, Maureen. Thanks for having me.
CAVANAUGH: What environmental damage do you allege is caused by fireworks?
GONZALEZ: Well, remember, it’s not that we’re alleging that this damage does occur but what we are saying is that there’s a lot of studies out there that tell us there’s a heightened potential for this. This isn’t something that we just made up. We have essentially incendiary devices, pyrotechnics, that are shot up over water that contain a whole host of different toxic metals, things that we would never allow in even the most trace amounts to go into the waterways any other way. We’re talking things like arsenic, cadmium, selenium, beryllium. These are the metals that cause those bright lights in various colors that people really like to see. What we’re saying is, studies have shown the potential for that to get into the waterway, to affect the species that are in the water in very small amounts. One of the primary contaminants from fireworks is called perchlorate and this has been such a problem that in 2003 the state passed something called the Perchlorate Containment Prevention and Contain – Prevention and – Let me get it right. The Perchlorate Contamination Prevention Act.
GONZALEZ: And this specifically addresses fireworks. It says perchlorate can be discharged into the environment from fireworks. We have to do special things to make sure because perchlorate has a particular impact on human health and the environment.
CAVANAUGH: Now you’ve said that these elements have a possibility of getting into the environment and affecting wildlife and sensitive habitats. Have we ever found out that there’s been any real contamination from fireworks?
GONZALEZ: Well, yes, we have. Back in the earlier part of the last decade, San Diego Coastkeeper with my law firm, Coast Law Group, representing it, worked with Sea World to get them to get the first National Clean Water Act permit to monitor and really take a close look at these chemicals that would be coming out of their multiple fireworks displays. In both 2008 and 2009, they conducted extensive monitoring. The results we just obtained show our fears are confirmed. Both in the water quali – in the water column and the sediment we’re seeing heightened elements such as copper and barium perchlorate salts. We’re also seeing toxicity, which means when you go into the lab and you take little critters and expose it to this water, you’re getting a statistically significant impact on them from the fireworks. Now, of course, Sea World is 150 days a year, whereas these are one-time events but we do see studies as well, there’s one study in particular out of Oklahoma that shows that perchlorate, when it hits the water, while it attenuates over a 20 to 60 day period, for a very short period of time it could have a significant impact. So we’re not making this stuff up. We do have studies. And, you know, one of the other impacts that happens that people oftentimes don’t like to talk about are just the direct physical impacts from sound and light. In the Monterey Bay sanctuary up in Northern California, they did a study and they essentially found that there’s the potential that marine mammals, such as we find in La Jolla, would be harassed by fireworks, that they would be flushed, that they may have problems with breathing, and that they might even die.
CAVANAUGH: I’m speaking with Marco Gonzalez. He’s the attorney representing the Coastal Environmental Rights Foundation and they filed suit against the La Jolla Community Fireworks Foundation to try to stop the La Jolla Cove fireworks this Fourth of July. We’re taking your calls at 1-888-895-5727. Let’s hear from Rick calling from Vista. Good morning, Rick, and welcome to These Days. Good morning, Rick, are you there? Okay, maybe – maybe we have lost Rick. Let me ask you a question because Rick wanted to bring it up. I previously spoke with Adam Harris. He’s a board member of the La Jolla Community Fireworks Foundation. He made the point that, you know, that there – this fireworks display is really close to the Scripps Institute of Oceanography (sic) and, you know, all those scientists up there might’ve expressed some sort of caveat about having these fireworks display for the last 25 years but they haven’t heard anything from Scripps.
GONZALEZ: Yeah. The involvement of Scripps, I just heard this argument recently. It’s – it kind of blows my mind and I’ll tell you why. You have to first look at the designation of waters immediately offshore of La Jolla Cove and the Scripps Institute. It’s what the state designates an area of special biological significance or ASBS, and this carries a very unique water quality standard. Basically, you’re not allowed to discharge any type of waste whatsoever. That means return flow from the aquariums at Scripps, that means polluted stormwater runoff. And yet both of these things were happening. The very scientists that we’re told are going to be so overwhelmingly concerned about this very area, I worked with beginning in 2004 to get their permit to discharge not only the stormwater and the nuisance flows from the university but also from their own research tanks, so the idea that because Scripps does this type of work that they’re out looking for things like fireworks impacts is just nonsensical. There’s nothing – there’s no policy at the institution to go out and do these sort of altruistic studies.
GONZALEZ: They do it when they have to to get a permit and, frankly, Scripps has been a polluter.
CAVANAUGH: Let’s take another call. Taking your calls at 1-888-895-5727. Arlene is calling from Mission Hills. Good morning, Arlene. Welcome to These Days.
ARLENE (Caller, Mission Hills): Yes, thank you, Maureen. My experience here in Mission Hills with the fireworks nightly at Sea World has been, over the years, you know, I would smell smoke in the evenings. And I’d think, well, somebody in the neighborhood has a fire ring or something, they have an outdoor fire. We have our windows open, it was warm weather. And one night the smell was so pungent and I thought this doesn’t smell like wood, it doesn’t smell like anything that – briquettes or anything that I’m familiar with. I sent my husband out to walk around the block. He didn’t find anything. It didn’t go away and it was very pungent and dominating the air. And I called the fire department…
ARLENE: …and they checked. They couldn’t figure out what it was. They didn’t find any sign of fire. And it took me a long time to figure out that a half an hour after those fireworks are over at Sea World, if the wind’s blowing the right way and we’ve got our windows open, we get this terrible smell.
CAVANAUGH: So there’s some lingering air pollution there for you.
ARLENE: It is. And for those of us who have respiratory problems, it’s not a good thing.
CAVANAUGH: Thank you for the call.
ARLENE: So it does pollute and on special holidays and very limited areas it may be all right but on a nightly basis, it gets a little overpowering.
CAVANAUGH: Thank you, Arlene. I know that you’ve dealt with Sea World, Marco, and I’m wondering, did you deal with any of the air pollution involved?
GONZALEZ: We do recognize the significant air pollution. Our perspective as a coastal water quality focus group is that we want to see what happens when the aerial deposition lands in the water. But, as the caller mentions, there are human health impacts as well. Our group’s mission is not to protect human health directly, it’s a by product of the work that we do, whether it’s sewage spills or air pollution. We’ve not focused on it because the regulatory structure’s more difficult. There are a lot of exemptions for this type of thing issued by the regulators. But this does bring up an important issue and that is one time versus the many times, and that kind of brings me back around to what I heard Adam talking about earlier, is why are we targeting La Jolla? Why does it seem like we’ve waited until the last minute to go after this place? And I’ve got to tell you, it’s shocking to hear these comments. First of all, why La Jolla? La Jolla is possibly one of the most sensitive coastal areas in the entire state of California. It certainly contains the most sensitive coastal habitats in the city of San Diego. So why La Jolla? Because in the seventies, we established something here in the city of San Diego called the La Jolla Ecological Reserve, and that’s part of a 6,000 acre underwater park and it’s immediately offshore, a couple hundred yards from where they would shoot off these fireworks. As I mentioned earlier, this area of special biological significance is also right offshore. And then a couple blocks down the road we have the Children’s Pool seal rookery where we have protected marine mammals. I can think of no worse place, no more sensitive resources in the city of San Diego than in that area of the cove where they shoot off these fireworks year after year. Now, on the timing issue…
GONZALEZ: …we started working on these issues regarding Sea World back in 2005, 2004, all the way back to 2001. This has not been a secret. At the very least, last fall this made huge news when the Port Tenants Association unilaterally cancelled their New Year’s Eve fireworks in the Big Bay because they thought we would sue the Port. We had already told the Port we wouldn’t sue. Our goal has been, all along, throughout the city, to get all fireworks displays compliant with the law, whether that’s the Clean Water Act, the Coastal Act or the California Environmental Quality Act. They just need to comply with the law. It’s this one circumstance in this one place in La Jolla where you have these special heightened protected areas that we’re just saying no, this is the wrong place.
CAVANAUGH: So let me just be clear. In the other areas, in the Big Bay fireworks and Sea World and so forth, you were willing to sit down and talk with them to try to come out with some sort of an agreement that they would test the water, etcetera, etcetera. But in this particular instance, the La Jolla Cove fireworks, in your view there’s nothing that they could do to mitigate the harm and, therefore, you do want these fireworks displays to stop.
GONZALEZ: Right. When we originally threatened to sue Sea World, they came to us and – well, before coming to us, they cancelled all their shows. So, of course, we got a couple hundred e-mails and, you know, it was – Anytime you try to stop fireworks, everyone says you’re not patriotic whether it’s Sea World or New Year’s Eve or Fourth of July. Our society says shooting off bombs in the air with bright colors and loud noises equates to personal freedoms. I don’t get it but that’s what we think. So with Sea World, they came to us and said, okay, we want to get a permit, what do we need to do? We said apply for your permit and then go ahead and continue to have your show. It took them a year to issue that permit. We were totally fine with letting them go forward. Same thing happening with the Big Bay this year. With the Big Bay Boom, the organizers, we threatened to sue, we threatened to sue the Port, we said sit down with us, let’s do a monitoring program resulting from what we know happens at Sea World. We crafted something, they agreed to do it, no lawsuit. The notion, as Adam Harris put out, that we’re trying to destroy the Fourth of July, that we’re trying to stop fireworks altogether, is false. We think they should be permitted according to law. We think the law’s very clear and that, frankly, there’s just not been the political will to enforce it.
CAVANAUGH: Let’s take a call. Joe’s calling us from Coronado. Good morning, Joe, and welcome to These Days.
JOE (Caller, Coronado): Oh, thanks for taking my call. I wanted to ask Mr. Gonzalez if he feels that the emotional disappointment from canceling the Fourth of July would be worth making the point that maybe these are not the best place to shoot fireworks off in consideration of all of the environmental impacts the fireworks would have. What’s his opinion on that?
CAVANAUGH: Right, the lawsuit takes into consideration the potential emotional impact on the marine wildlife but what about the emotional impact of the human beings looking forward to these fireworks?
GONZALEZ: Well, you know, here’s the thing. Estimates are somewhere around half a million people go to see fireworks on Fourth of July. At the Big Bay, San Diego Bay, Big Bay Boom, they’re expecting 300,000 people. Sea World will have fireworks, Coronado’s going to have fireworks. Ocean Beach is going to have fireworks. Oceanside’s going to have fireworks. Del Mar will have their fireworks. There will be no shortage of fireworks options. There will not be an option of going to La Jolla. So for 10,000 to 20,000 people, a very, very small, minute percentage of the total number of people who will go and see fireworks, we’re saying you have to go somewhere else. That’s it.
CAVANAUGH: Mr. Harris, Adam Harris, seems to think that the ruling that is expected tomorrow might be a temporary restraining order on all the fireworks across the city because of permitting issues. Do you see an outcome like that?
GONZALEZ: You know, what’s very clear from listening to Mr. Harris, he’s not a lawyer, he doesn’t understand really even the legal basis for our lawsuit. There’s nothing in there that says that we’re at all going to be seeking anything other than a restraining order against the La Jolla fireworks. Perhaps underlying Mr. Harris’ perspective, and I’ll just help him out a little bit here, is that by complying with environmental laws, it’s going to cost more to have these fireworks shows. So in the future there may be some – because we know nonprofits put them on but there may be circumstances where they just can’t afford to. I think that’s where it’s appropriate for the City to come in, do a master document where they look at environmental impacts throughout the city from these shows, and maybe that’s how you help out these groups. But for Adam to suggest that, you know, we’re trying to shut everything down, that just plays into more of the nonsensical rhetoric that folks use to try to vilify us in the press.
CAVANAUGH: Let’s take another call. Lynn’s calling from Carlsbad. Good morning, Lynn. Welcome to These Days.
LYNN (Caller, Carlsbad): Good morning.
LYNN: So I – What I was calling to say is how I notice year after year that very few people seem to take into account the impact that fireworks, much as we all love them, have on the both domestic and wild animals in the region. And it seems to me that probably – I mean, for me, personally, that’s a real serious concern about La Jolla Cove. It’s scaring the heck out of the seals and all sorts of animals and fish and pets in the area as well.
CAVANAUGH: Well, I thank you for your call. Thanks so much, Lynn. And Kevin’s calling from San Diego. Good morning, Kevin. Welcome to These Days.
KEVIN (Caller, San Diego): Hi. Good morning.
KEVIN: What I find somewhat nonsensical is it seems to me that the argument is slightly disingenuous on behalf of the coastal water commission. We’ve already – Mr. Gonzalez has – he’s explained that there’s no immediate threat to wildlife, there’s no immediate detrimental impact. We’ve got a study out of Oklahoma that says over the long term these levels can rise and damage animals but I – As an attorney, I find that the argument seems somewhat disingenuous. I mean, what is the immediate threat to where we need to stop one of our nation’s greatest holidays in one of our nation’s greatest cities, La Jolla, because of this hyper-concern that doesn’t seem to be founded, to me, or based on actual science.
CAVANAUGH: Thank you, Kevin. Thank you for that question.
GONZALEZ: Kevin, let me be absolutely clear here. The reason why we’re suing the City of San Diego is because they have not conducted an environmental review process to tell us exactly what impacts are likely in La Jolla. But what we do know from studies out of Monterey Bay and out of a place called Gualala in Sonoma County is that there are direct, immediate impacts from noise and light from these fireworks. That means both coastal birds and marine mammals will immediately be impacted. We know that as a fact. The exact same types of species, the exact same types of firework shows. Do we know that the discharge of trace metals from one night into the water will cause irreparable injury? We don’t. But we do know that it’s illegal to put them in the water without having a permit. The state has confirmed this, the Coastal Commission has confirmed that we can’t do this without coastal development permits, the federal government recognizes we can’t do this without Clean Water Act permits. All we’re saying is, the City hasn’t done its environmental review to permit this legally. If, you know – It’s really hard. I hear a lot of people saying it’s, you know, our nation’s finest holiday, it’s our celebration. Well, the question I always have to come back to, if we’re going to say on Fourth of July the environmental laws that really protect us and protect our environment are going to be suspended, my question is, well, then what other laws? Just because it’s Fourth of July, are we going to take any other laws and say we intentionally choose not to follow them? What does that say about our democracy if, in the foundations of so-called freedom, if we’re going to, for one day for no reason, without any legal precedent, just suspend our laws.
CAVANAUGH: We are out of time but let me ask you one last question, Marco. So tomorrow’s the day where the judge is going to decide whether to give a temporary restraining order that would stop the La Jolla Cove fireworks. If, indeed, that restraining order is not given, are you going to pursue the lawsuit?
GONZALEZ: The lawsuit is important because for all of the other fireworks shows that will happen over water, the law needs to be complied with. So first, if tomorrow’s TRO is not issued, we’ll consider whether we should appeal it immediately and get an emergency stay from the appellate court but, in the long term, we intend to pursue this until the City of San Diego recognizes its legal obligation.
CAVANAUGH: I want to thank you so much for talking with us. And everyone who called, thank you very much. If you’d like to continue the discussion online, you can go to KPBS.org/thesedays. Coming up, a sports update with Lee “Hacksaw” Hamilton. It’s next here on KPBS.