Sunday, May 29, 2011
Court ruling could have sweeping impact
By Mike Lee and Christopher Cadelago
Originally published 2:06 p.m., May 27, 2011, updated 4:02 p.m., May 27, 2011
Fireworks shows are among thousands of events in San Diego each year that need environmental review under a Superior Court ruling on Friday.
What started as a battle over fireworks shows led to a sweeping legal victory Friday for environmentalists that could stymie a wide range of events needing city permits, from the Rock ’n’ Roll Marathon to birthday parties held at parks.
“According to the strictest interpretation of this, jumpy-jumps and everything else would be subject to environmental review if this ruling stands,” said lawyer Robert Howard, who represented the La Jolla Community Fireworks Foundation in the case. “It’s a breathtaking ruling.”
California Environmental Quality Act
• The statute requires state and local agencies to identify significant environmental impacts of their actions and avoid or mitigate them, if feasible.
• Its origin can be traced to passage of the National Environmental Policy Act (NEPA) of 1969. The next year, the state Legislature passed its own version and Gov. Ronald Reagan signed it.
• Projects that need discretionary governmental approval and could have an environmental impact generally require review under the law, unless an exemption applies.
• Public agencies are entrusted with compliance, which is enforced by the public through litigation.
Source: California Natural Resources Agency
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Superior Court Judge Linda Quinn said La Jolla’s annual Fourth of July fireworks show requires evaluation under the California Environmental Quality Act, or CEQA.
The case, filed by the Coastal Environmental Rights Foundation in Encinitas, targeted San Diego’s approval of the La Jolla event but eventually drew in a broad swath of city permits. San Diego officials said they issue about 400 special-events permits annually, along with up to 20,000 park-use permits for smaller-scale gatherings — most of which would now need environmental assessment.
“San Diego issues thousands of these simple park-use permits over the counter with the only consideration being space, just as other cities do across the state,” said City Attorney Jan Goldsmith. “Existing law has never been interpreted to require a CEQA review for this. ... This decision opens the door to absurd results. This is the reason appellate courts exist and we plan to ask for their help.”
Even before the judge’s ruling was finalized, Chula Vista officials on Thursday pulled the plug on their July Fourth show in the face of funding shortfalls and environmental challenges.
The future of La Jolla’s event was fuzzy Friday. Organizers likely can’t complete the time-intensive and costly CEQA analysis by July 4, but Howard said he would ask the court to allow this year’s event while the case is appealed.
City Councilwoman Sherri Lightner, whose district includes La Jolla, said she hoped to find a solution. “We have to strike a balance that protects the environment but also allows our finest traditions to continue,” she said.
On Tuesday, the City Council ratified a long-standing city policy of exempting fireworks shows from special-events permits unless food or alcohol is sold. It was an attempt to shield pyrotechnics from environmental challenges, but Friday’s decision means CEQA still applies.
Environmental impact reports can take a year and cost tens of thousands of dollars.
“Does that mean every event has to get a full environmental impact report? No, but it means that the city has to undertake the burden and applicants have to undertake the cost” of a lower-level CEQA analysis, Howard said.
He said some “events” such as temporary Christmas tree stands have existing exemptions under the law, but many others don’t.
Alex Roth, a spokesman for Mayor Jerry Sanders, framed the suit as part of a “bizarre crusade to stop China fireworks.”
“What’s next, a lawsuit against swimmers for polluting the ocean with their suntan lotion?” Roth said.
Marco Gonzalez, a lawyer for the environmental rights foundation, exulted over Friday’s win, which comes after months of criticism against him for challenging an American tradition.
“If you were to sum it up with one word, I would say ‘vindication.’ It’s vindication for the environment ... and it’s vindication for my client because of the amount of disparaging comments and general negativity that was thrown our way when we were told that our lawsuit was frivolous,” Gonzalez said.
Earlier this month, his lawsuit had spurred regional pollution regulators to adopt a new permit for fireworks shot over beaches and bays. The mandate, based on the Clean Water Act, was a national first.
Gonzalez said he also is breaking new ground in seeking reviews of Chinese fireworks shows under California environmental law.
“There are a whole host of impacts that we know occur from fireworks shows, from marine mammals to marine birds to water quality to traffic to noise to the air,” Gonzalez said. “We want it studied and we want it mitigated.”
Tony Manolatos, a spokesman for City Councilman Kevin Faulconer, stood by the council’s exemption for fireworks. “I think banning fireworks on the Fourth of July is un-American,” he said, “and I think the majority of San Diegans would agree.”
Gonzalez has repeatedly said that protecting water quality and coastal species is patriotic.