Wednesday, June 1, 2011
The City of San Diego is gearing up for a battle over Independence Day fireworks; it's developing into an explosive issue. We'll discuss the details.
A judge has ruled the City of San Diego has to comply with California's environmental laws when issuing permits for the Independence Day fireworks show in La Jolla. Patriotic feelings have sparked opposition to the environmental suit, and it's turning into a national issue. The question of whether San Diego can have fireworks on July 4 is up in the air. A judge has ruled in favor of a challenge, filed by environmental attorney Marco Gonzales, saying the city needs to file for a review under California's Environmental Quality Act before issuing a special events permit. If the ruling holds, will it jeopardize fireworks displays around San Diego? Mayor Jerry Sanders has gone on the offensive to defend the firework displays.
Marco Gonzalez, co-founder of the Coast Law Group
Bob Howard, chairs the San Diego office's Environment Land and Resources Department at the Latham & Watkins LLP
ST. JOHN: Today is Wednesday, June first, I'm Alison St. John in for Maureen Cavanaugh. Well, are it's turning interest a bit of a national issue. Of the question of whether San Diego can have fire works on fourth of July is up in the air. A judge has rule would in favor of a challenge filed by environmental attorney Marco Gonzalez, saying the city needs to pass a review under California's environmental quality act before issues special permits for the events. If the ruling holds, might it jeopardize fire work displays around San Diego? Mayor Jerry Sanders has gone on the defensive to defend the fire work displays. He vows to appeal the rules. In studio we have with us, Marco Gonzales, who is cofounder of the Coast Law Group. Marco, thanks for being with us.
GONZALES: Thanks for having me, Allison.
ST. JOHN: And we did invite the mayor's office to come on, but they declined and referred us instead to the attorney representing the La Jolla community fire works foundation who is Bob Howard with the law firm of Latham and Watkins. And bob is on the phone with us am thanks for being with us, Bob.
HOWARD: Thank you very much.
ST. JOHN: So let's start with you, Marco. You know, there are a lot of environmental issues out there these days to be fighting. Why do you think fire works is so important?
GONZALES: Well, you know, Allison, we came to this issue almost a decade ago. And it was around sea world. Mission bay is a highly polluted water body, and has been for some time. And when sea world was coming forward with the master plan amendment and looking to actually increase the number of shows, we started looking at the issue. And it turns out that it's not the cleanest use of our air ways and our water ways. There are a lot of toxic metals that are shot up into the air and burned off. There's a lot of trash that falls out with these toxic metals on them. And we felt a decade ago that we should start paying more attention. Then as things moved forward, one of the things that really kind of came to our attention was that we oftentimes shoot he's fire works over water next to areas where we're at the same time working to protect highly sensitive habitats and species. In particular, places like the south San Diego bay, and the San Diego national wildlife refuge, the San Diegito lagoon where we have a massive restoration project under way, and the 22nd act, the fairgrounds, their fireworks there too, and then of course we have La Jolla, and La Jolla cove, where we have multiple under water marine life refuges, and ecological reserves, and we have the protected marine mam 58 rookery at the children's pool. So it was just this dichotomy of we worked really hard to protect these sensitive places, but then we turned a blind eye to the environmental rules and regulations every fourth of July, and sometimes every new years, and for any number of other events, and it just doesn't sit right with us.
ST. JOHN: But is there any scientific evidence that species are being harmed in the ocean because of the fire works?
GONZALES: There is a host of scientific evidence out there pointing to the likelihood that there are impacts. There are some studies that have been done over fresh water lakes, and they point to perchlorate salts depositing eight, 10, a hundred fold after fire works events. And then we have circumstances near sensitive bird species, and in particular lease turns and plovers. We've seen that where they're nesting, and where there are chicks, they are frightened, they're harassed, they leave their nests, and sometimes the birds, abandon their nests. And also we have circumstances up in Northern California where we've seen that these fireworks displays have resulted in harassment of marine mammals, startle them, and there are federal, state, and actually local laws that have to be complied with if we're going to allow these impacts to occur.
CAVANAUGH: So on Friday, a Superior Court judge, Linda Quinn, made a ruling that will affect this fireworks display? La Jolla. Tell us what she actually ruled.
GONZALES: Well, a year ago, we approached the city and said you have a permitting structure that doesn't make sense to us. You have a lot of discretion in shaping these events and requiring mitigation, and frankly, you're not complying with your requirements under the California environmental quality act or CEQA, to review the impacts of these. And the city told us to pound sand. They said we like our permitting process, we don't think we need to change it, we don't think we need to comply with CEQA. And back in December, the judge essentially indicated that the city was wrong. And so the city responded just last week by seeking to change its laws to exempt permits like the fire works permits from CEQA review, and what happened on Friday was the judge said no. Under the law that existed in 2010, you have to do an environmental review. And even accounting for the change that you made just last week, you still have to do environmental review. Now, there is a slippery slope here. That ruling could apply to other permits and other fire works shows throughout the city. But we've made very clear to the city, to the Court, to the La Jolla community fire works foundation, and everyone, we're not trying to stop all fire works, and we're not trying to stop the thousands of events that happen in public parks each year. We're simply trying to get those shows that are in the most sensitive areas to go through an environmental review, so we can see what the impacts are and make sure they're mitigated.
CAVANAUGH: Bob, I'd like to bring you in here. What does the La Jolla community fire works foundation say as a strategy to keep this year's fire works show on as planned? 'Cause I understand that this ruling would then the show that's coming up in a month?
HOWARD: It certainly does threaten the show. And the threat is really not based on the science, the threat is really based on the procedural requirements that this decision holds that the La Jolla community fire works foundation would have to undergo. And we just don't have sufficient time to undertake all that procedural review. We're five weeks away from the event. And even under the most optimistic scenarios, CEQA takes a fair amount of time to process and work through. But like I said, if therapy just a battle of the science, we'd be comfortable on that alone, because our local water board has reviewed all the science. And even the studies that Mr. Gonzalez sited, and concluded that the fire works, not just at La Jolla, but throughout the California region or San Diego region do not present a risk to water quality. So the water board has already spoken to this issue.
ST. JOHN: So bob, I understand that the judge made a different ruling last year against a similar challenge and ruled that the fire works could go ahead. This year she's ruling that, no, the city does need to go through CEQA before granting the permit. What's changed?
HOWARD: Well, the issue has changed, last year at this time, the issue that was before judge Quinn was whether the scientific evidence warranted a temp roar restraining order. And the concluded we believe correctly so that based on the weight of the scientific evidence that was presented to her, that there was not a sufficient amount of evidence to conclude that there was any need for a temporary restraining order. Since then, the regional board has taken up that issue and has concluded likewise that this is no scientific, based on the science, no impairment to water quality, but this year, what has changed is that the issue, the arguments have changed that Mr. Gonzalez has shifted more toward a CEQA challenge, a procedural challenge, as opposed to a science based challenge. And a CEQA challenge has a lot of costs and time commitments required to undertake it, even if at the end of that analysis the conclusion is there are no scientific impacts, go ahead, issue your permit. So the issue before the Court this year was different than the issue before the Court last year.
ST. JOHN: 1-888-895-5727 is our number. And we'd like to know what your take is on this issue. So Marco, it seems like the regional water quality control board has required that debris be cleaned up following a show, it has taken some step. But now you're continuing to pursue this case again, pursuing the California law. Why are you sort of, like, overriding what appears to be progress?
GONZALES: I'll tell you, Allison, the dialogue that we have on this issue is really hard sometimes. There are a lot of folks out there who frankly have a tenuous grasp on the truth. And all we're asking folks to do at this point is have an honest debate about the science. Since day 1, we've sought to have the scientific issues discussed. And what we've seen is evasiveness from the city, evasiveness from the purveyors of fireworks shows, because unfortunately what Mr. Howard just recited as the facts and the scientific evidence, it's just not true. And in fact Mr. Howard when he got up in front of the regional water board and made such statements to the board, he was reprimanded. That in fact, if you look at the science that was generated under the sea world permit, we have violations of state water quality standards, we have accumulation of metals, we have toxicity. The problem with that data is that mission bay is already so polluted that we can't discern for the every night show that sea world does whether the pollution is coming from just the fire works shows or from a host of other areas that are polluting that bay. But what we did know and what that study did show is that on the big shows like fourth of July and memorial day, there is a statistical correlation between these excedences and the fireworks shows that occur.
ST. JOHN: Has taken some steps right to require more cleanup and do a little bit more work to make sure that before a permit is granted, there is gonna be some care taken.
GONZALES: Yes, and one thing to realize is the region water board is tasked with implementing the federal and state clean water acts. These are wholly different regulations than the California environmental quality act. And the requirements that go along with that are different, the thresholds by which we measure significance are different.
ST. JOHN: Well, let me just ask you, you're talking as a lawyer about different levels of law. But I think what people want to know is are you trying to stop the fire works altogether? Is there anything could be done to make those fire works less damaging to the environmental?
GONZALES: Absolutely. You know, one of the problems we've seen is that we don't have enough information, so in the context of the region board action, we wanted more monitoring, we think that for some of the bigger shows and the fourth of July shows, we need more water quality monitoring to dispose of the issue. Or to indicate what the impacts really are. We're concerned with fireworks over highly sensitive habitats like La Jolla or south San Diego bay, we're not trying to stop the fire works in every location.
ST. JOHN: Okay, we've got Lori on the line, a little bit of a ways away from the bay here, but Lori, go ahead.
NEW SPEAKER: Hi, I grew up in -- well, mostly San Diego, and I remember watching sea world's fire works every night from my house in Ocean Beach. And now I'm almost 40, and I've seen so many fire works displays in the area, and I'm so glad somebody is looking at this, because I know that they put toxins in the environment. And it just can't be good. It seems like a no brainer. It's great to do scientific studies, but it's just knowing that there's toxic metals going into the environment just for over the top reasons. . It just seems like it's so many fire works displays. Do we really need that? So thank you, thank you for somebody looking at this. Thank you.
ST. JOHN: Yeah, okay, thank you for your perspective, Lori. And bob, I would just like to throw it to you. The city is expected to appeal this decision that the judge handed down last week, or seek an exemption right? Can you tell us about that?
HOWARD: Yes, both the City and La Jolla will be filing a notice of appeal shortly.
ST. JOHN: Isn't that --
HOWARD: We have a hearing tomorrow.
ST. JOHN: Okay, tomorrow. And is that gonna cost taxpayers?
HOWARD: Will the actual appeal cost tax payers?
ST. JOHN: Correct.
HOWARD: It will in the sense that the city attorney's office will be involved in dealing with the appeal, so yes, this whole effort, this whole litigation cost taxpayers.
CAVANAUGH: And why do you think the city is weighing in so heavily on this particular -- what's behind the strong feelings on this issue?
HOWARD: There are a number of them. One is the broad soap ask of the judge's ruling, although Mr. Gonzalez is suggesting it's narrow. This ruling is quite broad. Implicates fire works. And not fire works events, quite frankly. Even very small events.
CAVANAUGH: Okay. Let's take a call from Steve in San Diego, has a different opinion. Go ahead, Steve, thanks for calling.
NEW SPEAKER: Marco, I just want to know, do you have children and.
GONZALES: I do.
NEW SPEAKER: You think they'd like to see fire works?
GONZALES: I don't know. They're two and a half and five years old. And you know, every fourth of July, we have a big neighborhood picnic where we all get together and spend time with our neighbors, and our family, and when I put them to bed at dark, they seem pretty warn out and pretty happy to have celebrated fourth of July the way we do every year.
ST. JOHN: So Steve, are you calling because you feel that fire works still need to be part of the traditions we have?
NEW SPEAKER: Yeah, I think a fire works display is worth the possible hazards.
CAVANAUGH: Okay, well, listen, thank you for that perspective. And I think we have had two calls that represent the two sides of this issue here. And we only have a minute left here, but Marco, you say you're trying to not cancel all fire works. But I just wonder if there's anything that can be done to make them or environmentally friendly or do they need to go.
GONZALES: There are locations where we believe they need to go. But we also know that there are alternative technologies. There are cleaner fireworks, there are cleaner ways to shoot fireworks, and there are laser light shows, and all we're asking at the end of the day is that places as sensitive as La Jolla and south San Diego bay, and the San Diegito lagoon, let's preserve those places that are environmentally sensitive. Let's not shoot fireworks into our most sensitive habitats.
ST. JOHN: Okay. Bob, and just to give us a quick look ahead, what's the next step in this fight?
HOWARD: Well, the next step is that we will ask the judge to stay her ruling, and -- tomorrow, and if it's not successful, we'll appeal the decision. And my last note is that if fire works were so environmentally unsafe that EPA would have weighed in in the last 40 years to speak to this very issue, and the EPA has never said that fire works are unsafe.
ST. JOHN: Okay, well, we've got a month until July 4th, we'll see what happens. Marco Gonzalez, thank you very much for coming in.
GONZALES: Thank you Allison.
ST. JOHN: And Bob Howard, who represents the La Jolla community fire works foundation, thank you for being with us.
HOWARD: Thank you.