December 19, 2011
San Diego Union Tribune
by Mike Lee
The Coastal Environmental Rights Foundation has lobbed another lawsuit against San Diego in the ongoing debate over regulatory oversight of fireworks — and it doesn’t appear that the disagreements will end any time soon.
The Encinitas-based group has dogged pyrotechnic displays in San Diego for the past two years in an attempt to force more environmental safeguards, particularly for displays over water at La Jolla Cove and Lake Murray. However, the legal effort has dragged in thousands of annual events because they fall under some of the same city permitting rules as fireworks shows.
On Friday, the coastal foundation levied its fourth related lawsuit. It challenged the City Council’s Nov. 14 approval of municipal code changes that provide certain events, including fireworks displays, with exemptions in the permitting process at city parks.
“This is a campaign. This is not one battle,” said foundation lawyer Marco Gonzalez. “We have a number of bullets left in our gun, and to the extent needed we will start to use some of these other opportunities.”
Also on Friday, the foundation and the city faced off in Superior Court over a related lawsuit. No ruling was issued.
In addition, the parties have skirmished over attorney’s fees, which the coastal foundation said have topped $750,000 for its side of the case. Last month, a judge said San Diego didn’t have to pay that bill but she left the door open for payments pending resolution of the various suits.
“CERF has repeatedly offered to work with the city to develop a fair permitting practice – one that is not overly burdensome to event organizers, while at the same time does not abandon basic environmental protections,” Gonzalez said. “Unfortunately, the city has instead chosen to vilify environmentalists, delay and avoid dealing with the issues head-on, and side-step the law.”
Officials at San Diego City Hall aren’t backing down.
“Marco Gonzalez seems intent on wasting as much court time as possible on his misguided campaign against July 4 fireworks,” said a statement by Alex Roth, a spokesman for Mayor Jerry Sanders. “He also wants three-quarters of a million dollars in legal fees from taxpayers. I’m guessing he’ll be submitting an even bigger bill at some point, which is sad.”
In court, city lawyers have defended the city’s processes and have appealed a ruling against them in related litigation.
But the coastal foundation’s efforts to increase environmental scrutiny have had wide ripple effects.
The San Diego Port Tenants Association won’t sponsor New Year’s Eve fireworks this year as it did before 2009, said president Sharon Cloward. She said the big barrier was the cost and time involved with getting permits through the San Diego Regional Water Quality Control Board.
Cloward said she’s hopeful that the Port of San Diego will seek an umbrella permit for all fireworks shows over the bay so that by this time next year her association will be gearing up for a New Year’s Eve show. “If we can get this resolved and make it affordable, we will be back on track,” she said.
In addition, the annual San Diego Bay Parade of Lights was celebrated over the past two weekends without fireworks. An apology on the event website alluded to new regulations but wasn’t explicit about the cause of the canceled fireworks. Cloward said the issue was related to confusion over whether a permit from the water board had been issued.
Back in Superior Court, the latest lawsuit stems from a Nov. 14 decision by the city council that altered city code to clarify that the vast majority of park-use permits for fireworks shows and other events are routine — not up to the discretion of parks officials — and thereby don’t need reviews under the California Environmental Quality Act, or CEQA.
Gonzalez said that the city should have done a CEQA review before exempting thousands of events from CEQA reviews. He added that San Diego has illegally tried to downplay the full impacts of fireworks shows by breaking them into smaller pieces that don’t trigger environmental assessments.
He said the City Council’s move raises questions “about whether all events are being treated equally in the permitting process” and that a companion lawsuit will be brought on constitutional grounds in federal court.
That’s just one element of an effort that Gonzalez said started a decade ago when he raised concerns about SeaWorld’s fireworks shows over Mission Bay. On Dec. 6, he sent a letter to the San Diego City Attorney’s Office outlining his plans.
“In the coming months and/or years, the City can expect challenges to the discretionary Fire Department permits for fireworks shows, Endangered Species Act challenges for impacts to least tern nesting sites, Coastal Act challenges to the Big Bay Boom and other shows, and aggressive prosecution of our appeal of the Regional Water Board’s general permit for fireworks discharges over water,” said the letter. “Unless and until a meaningful environmental review of fireworks shows is conducted, with a reasonable range of alternatives and mitigation measures considered and adopted, the fight will continue.”