MEDIA RELEASE

ENVIRONMENTAL PROTECTIONS ABANDONED DESPITE RULING

JUDGE GRANTS MOTION FOR STAY

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CONTACT:    Marco Gonzalez

                        Coast Law Group LLP

                        (760) 942-8505

ENCINITAS, CA – Friday, June 3

This afternoon San Diego Superior Court Judge Linda Quinn issued her ruling granting the City ofSan Diego’s and La Jolla Community Fireworks Foundation’s requests to allow the La Jolla Cove 4th of July fireworks show to go on this year (see attached). This decision came on the heels of Judge Quinn’s ruling last week that the City has been in violation of the California Environmental Quality Act by failing to review and mitigate the potential environmental impacts from this event.

At the beginning of yesterday’s hearing where the City and event organizers requested the stay, the court indicated it was inclined to deny the request. CERF finds the court’s ruling somewhat troubling, primarily because the order fails to identify any rationale whatsoever for the court’s change in position. CERF will take the weekend to consider its options to respond to the ruling.

CERF’s attorney Marco Gonzalez responds, “While we’re of course not happy with the court’s ruling, we understand the immense pressure the City and fireworks organizers have created by delaying these proceedings so long and by dragging in all of the other events that could be possibly impacted by the ruling. But in the end, what’s most important is that regardless of whether the La Jolla fireworks happen this year, there will be significant changes in the way the City handles these events going forward, and that has been our goal all along. We remain committed to working with the City on a solution, and will consider our appeal and other options in the days ahead.”

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The Real Fireworks Debate, or Lack Thereof

Originally posted at Two Cathedrals

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Guest post by Livia Borak

Two months. Exactly two months remain until the 4th of July holiday. We’ll take time off to enjoy the company of our friends and loved ones, fly our American flags and light the barbeque. And then the fireworks. What’s more American than buying hundreds of millions of dollars worth of fireworks from China, watching their explosive display, and then sitting in traffic for an hour? Sarcasm aside, 4th of July fireworks are, for most people, synonymous with the holiday. It’s tradition.

Not surprisingly, recent attempts to bring this tradition into compliance with existing laws has been characterized by many as a fight against liberty itself. There hasn’t been an honest conversation about the topic. Instead, what we’ve seen is politicians like City Councilmember Carl Demaio and Assemblymember Diane Harkey wrapping themselves in the flag to cut off debate and castigate opponents. To hear them tell it, we liberal, socialist, pocket-lining, environmentalist attorneys are trying to put an end to these fireworks shows, right after we steal your piece of apple pie. Then we’ll have to skip straight from July 3rd to 5th and tell the Chinese to save those fireworks for their parties. The truth? You can keep your apple pie and most of your fireworks too.

But there is a fine line between tradition and uncompromising doggedness. If fireworks are a tradition worth continuing, why can’t we simply conduct them legally? This is the real question environmentalists want answered.

Moreover, if tradition truly is the compelling reason not to study or regulate fireworks, then displays on New Year’s Eve, during Sea World’s Summer Nights, and at sporting events shouldn’t get a free pass. On the other hand, if we shouldn’t be regulating fireworks simply because they don’t pose a significant threat to the environment, we need evidence to that effect. Once we take the opportunity to look at fireworks objectively, without the Independence Day bias, emerging studies from numerous federal and state agencies, scientists, and wildlife experts show that they aren’t harmless.

The problem then becomes, if there’s some public admission that fireworks aren’t the benign display we’ve always regarded them as, it implicates all shows, even those culturally sacred displays on the 4th. This may be the impetus for the illogical all-or-nothing position.

San Diego has been the epicenter of this debate, and continues to be a major battleground. Right now, the City of San Diego is considering amendments to its municipal code to allow fireworks shows on public property without studying their environmental impacts. Anyone watching last week’s City Council meeting witnessed passionate advocacy from those for and against the amendments.. What you didn’t see, however, is a discussion about environmental impacts. That type of discourse seems to be something the City will do anything to avoid.

Thus far, Mayoral spokesperson Alex Roth is the only person in the mayor’s office willing to engage openly on this topic. Our views about impacts lie at polar opposites, but at least there exists the humble beginning of engagement. City staff have otherwise completely shut the public — not just environmentalists — out of the process. Ironically, the City’s municipal code amendments are offered in response to CERF‘s lawsuit against the City for this systematic lack of public environmental review.

Last year, before the City’s self-imposed censorship, Mayor Sanders commented on another agency’s attempt to regulate fireworks displays. He said of the Regional Water Board’s (now substantially revised) fireworks permit: “This is killing an ant with a sledgehammer.” His words may come back to haunt him in light of the City’s latest tactic.

So in two months, when all fireworks shows in the City are potentially on the chopping block because of legal challenges to the City’s last-minute ordinance shuffling, consider this: if it wasn’t in the name of Independence Day tradition, would we be condoning this wholesale regulatory evasion? If the answer is no, let’s exercise some of those highly regarded rights we celebrate on Independence Day. Because as it turns out, debate also happens to be a great American tradition.

Livia Borak is an attorney at Coast Law Group, LLP in Encinitas where she focuses on a variety of environmental issues representing various non-profit organizations. She’s a former San Diego Coastkeeper staff attorney and member of the third-place CityBeat Trivia night team By Rolland’s Beard. She serves on the board of League of Conservation Voters and is legal advisor to the environmental nonprofit Coastal Environmental Rights Foundation. She makes killer chocolate chip vegan cookies.

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CERF Comments to San Diego City Council re: Fireworks Impacts to Wildlife, Air and Water Quality

Today, April 25, 2011: The San Diego City Council will consider passing municipal code amendments to exempt coastal fireworks from California Environmental Quality Act (CEQA) requirements.

CERF’s initial comment letter was sent to the Council on April 21, 2011. The follow up letter below includes attached documents relating to potentially significant wildlife impacts from fireworks shows. These include declarations from recognized wildlife experts. CERF also includes documents indicating potentially significant water and air quality impacts from fireworks.

Letter: Code Amendments City Council Letter

Water and Air Quality Impacts: Summary of Exhibits

Water and Air Quality Impacts: Exhibits

Wildlife Impacts: Summary of Exhibits

Wildlife Impacts: Exhibits (all except Exh. 4)

Wildlife Impacts: Exhibit 4

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Opposition to Harkey’s AB206: Exemption of Fireworks from Environmental Compliance

Comments in opposition sent to the California State Assembly Committee on Natural Resources, with attachments, below:

 April 21, 2011 Comment Letter Opposing AB206

Attachment 1: Percholorate Behavior in a Municipal Lake Following Fireworks Displays

Attachment 2: AB 826 Digest

Attachment 3: Draft Fact Sheet for Tentative Order No. R9-2011-0222, NPDES No. CAG999002

Attachment 4: Gualala Study

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CERF Legal Notice re 2011 San Diego Big Bay Boom

The below letter was sent to representatives for Big Bay Boom show promoters San Diego Armed Service YMCA, San Diego Unified Port District, and the City of Chula Vista, on March 25, 2011. Links to the studies and documents referenced appear below the embedded letter.   

 

 

U.S. Fish and Wildlife Service: Lightfooted Clapper Rail 5-Year Review: Summary and Evaluation, August 10, 2009

U.S. Fish and Wildlife Service: California Least Tern 5-Year Review: Summary and Evaluation and 2009 Spotlight Species Action Plan, September, 2006

U.S. Dept. Of Interior Bureau of Land Management and Fish and Wildlife Service: Seabird and Marine Mammal Monitoring and Response to a Fireworks Display at Gualala Point Island, Sonoma County, California, May to August 2007 

U.S. Fish and Wildlife Service: Guidelines for Managing Fireworks in the Vicinity of Piping Plovers and Seabeach Amaranth on the U.S. Atlantic Coast, February 4, 1997

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Fireworks Permit comments: Supporting Documents

For those interested in fireworks impacts to water quality in support of sufficient Regional Water Board permit requirements, below are relevant documents:

Court decision: Gualala Festivals Committee vs the California Coastal Commission, et al

Environmental Science & Tech study: Perchlorate behavior in a Municipal Lake following Fireworks Displays

Journal of Hazardous Materials:  Effect of fireworks events on urban background trace metal aerosol concentrations: Is the cocktail worth the show?

NOAA: Monterey Environmental Assessment – Fireworks within National Marine Sanctuary

American Chemical Society: How Fireworks Work

Springer Science & Business Media: The Fallout from Fireworks: Perchlorate in Total Deposition

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CERF Fireworks – La Jolla Complaint, Temporary Restraining Order, and Media

Coastal Environmental Rights Foundation attorney Marco Gonzalez has a long history with fireworks in the San Diego area. As a longtime clean water activist, he has been informing regular fireworks dischargers, such as Sea World, that compliance with discharge laws, including permitting, implementation of best management practices (BMPs), and water column and sediment monitoring are required for any displays over ocean waters.

On behalf of San Diego Coastkeeper, Marco filed a lawsuit in 2007 against Sea World, which ultimately led to Sea World’s compliance with the permitting process and conditions placed upon their yearlong displays by the San Diego Regional Water Quality Control Board (RWQCB).

As a result of Sea World’s monitoring, elevated levels of perchlorate and other water-soluble chemicals known to exist in most pyrotechnics have been shown to exist in the vicinity waters, despite Sea World’s cleanup of an average of 21lbs of wet debris daily.

In Fall, 2009 CERF sought to enforce the requirement to obtain discharge permits, locally issued by the San Diego RWQCB, in advance of the New Year’s Eve fireworks planned on San Diego Bay. The Port of San Diego, the City of San Diego, and the Port Tenant’s Association refused to take leadership, and instead canceled the show despite CERF’s promise not to litigate as long as permits were sought for future shows, coupled with monitoring and cleanup.

Similarly, in advance of July 4, 2010, CERF sent Letters of Intent to Sue to the Port of San Diego and City of San Diego for the Big Bay Boom, the La Jolla Fireworks Foundation for the La Jolla Cove fireworks, and the 22nd Agricultural District for the Del Mar Fairgrounds display. CERF Notice Letter to La Jolla CERF, the San Diego Armed Services YMCA, and the Port of San Diego came to an amicable no-fee agreement of non-opposition to the show in exchange for cleanup and monitoring of the Big Bay Boom show. CERF decided not to pursue the 22nd Ag show, but put its resources toward fighting to prevent the La Jolla Cove display due to the highly sensitive natural resources in the immediate vicinity of the discharge area.

These efforts came to a head in June, 2010, when the Coastal Environmental Rights Foundation sued the City of San Diego, the La Jolla Community Fireworks Foundation, and Promote La Jolla. CERF sought to obtain a temporary restraining order to prohibit July 4 fireworks in the ecologically sensitive La Jolla Cove.

Despite the evidence of environmental and marine mammal harms caused by pyrotechnic displays, and the clear demonstration of the convoluted City permitting process, the Judge ruled that due to insufficient evidence of irreparable harm to La Jolla Cove, the fireworks would go forward. Documents filed in opposition cited free speech claims (despite attorney Marco Gonzalez’ argument that there is no Constitutional right to pollute). La Jolla Community Fireworks Foundation Opposition

In addition to the “irreparable harm” requirement for issuance of a temporary restraining order, CERF had to convince the Judge it would succeed in the underlying lawsuit. In opposition, the City argued CERF could not prove the City was wrong to issue fireworks promoters a Park Use Permit without CEQA (California Environmental Quality Act) review. The City submitted documents stating the fireworks show would not require road closures or restrict public access, one of the City’s “triggers” for requiring a Special Use Permit and CEQA review.

City Opposition to Temporary Restraining Order

Declaration of Kelly Broughton, DSD Director

However, the City’s own road closure signs told a different story. At the hearing for the temporary restraining order, CERF’s Attorney Marco Gonzalez showed the following photo, proving the City had misrepresented the impacts of the fJuly 4, 2010, 6-11 p.m.ireworks show on traffic.

Attorneys for the City, the La Jolla Community Fireworks Foundation, and Promote La Jolla then claimed that Coast Blvd. would only be closed on July 4th for beach use (from 6pm-11pm), not because of the fireworks show. Judge Quinn was skeptical of this explanation, as beach goers don’t typically flock to the beach from 6PM to 11 PM.

The City continued to claim that the City’s Park Use permit needed no further review, because the fireworks were not the driver for the crowds to the Cove the evening of July 4th. Although an interesting argument, it is completely untrue, especially because fireworks promoters concurrently argued that the area businesses would suffer from lack of crowds if the display was canceled.

Despite the Judge’s unwillingness to constrain the La Jolla Cove fireworks display, citing a statewide fireworks policy currently undergoing consideration and lack of evidence of site-specific irreparable environmental harms, additional claims remain in the active lawsuit. The City of San Diego still inappropriately opted to issue a ministerial permit to subvert CEQA review for the fireworks show, while the permit granted did not include elements of road closures or amplified music, and City employees apparently colluded with permit applicants and Fourth of July party promoters to subvert public process and the City’s own Municipal Code to pull off the event.

In furtherance of CERF’s efforts to bring clarity to large, potential environmental impacts-causing events in San Diego, a Public Records Act (PRA) request was submitted to the City and all City departments on July 8, 2010. City PRA 070810

CERF is currently working with the City to obtain the requested documents, though the City has maintained some requested documents will not be provided. City Response to PRA Request

Stay tuned for more news…

In the meantime, some media coverage includes:

10News: Group Threatens to Sue over La Jolla Cove Fireworks Show: http://www.10news.com/news/23998882/detail.html

KPBS, These Days interview: http://www.kpbs.org/news/2010/jun/29/lawsuit-filed-stop-la-jolla-fireworks/

KPBS article following trial: http://www.kpbs.org/news/2010/jun/30/judge-rules-la-jolla-fireworks-show-can-go/

San Diego Union Tribune: Suit to stop fireworks extinguished: http://www.signonsandiego.com/news/2010/jun/30/suit-stop-fireworks-extinguished/

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