The blow by blow….

The struggle for clean air continues here in the South Coast Air Basin.

On January 15th, California Communities Against Toxics, Communities for a Better Environment, and Coalition for a Safe Environment (collectively “us” or “we”) went to the Los Angeles Superior Court to ask that the Court prevent the South Coast Air Quality Management District (aka “them” or “they”) from causing the release of air pollution in violation of the Constitution and statutory law.

As “they” described it on their website:

AQMD turns back legal challenge to its air pollution permits
January 15, 2010 - AQMD on Friday thwarted a legal maneuver that could have prevented Southland businesses from obtaining air pollution permits. Superior Court Judge James Chalfant in Los Angeles denied a request for a temporary restraining order in a lawsuit filed in December 2009 by several environmental groups. The lawsuit seeks to invalidate AQMD’s implementation of SB 827, which has allowed AQMD to issue more than 1,300 permits beginning on January 2 after a one-year permit moratorium was imposed by a 2008 court decision. Judge Chalfant ruled today that the plaintiffs, including California Communities Against Toxics (CCAT), Communities for a Better Environment (CBE), and Coalition for a Safe Environment (CASE) had not shown that irreparable harm would result if a temporary restraining order was not issued. The case will now proceed in Judge Chalfant’s court.

Actually, I think that “they” provided a solid description of what happened—although I guess I think that “thwarted” is a rather dramatic word choice and the Court didn’t order a one-year permit moratorium, it ordered the District to complete a lawful CEQA analysis.  Whatever.

I will only add two things:

First, a definition of “irreparable”:  “not reparable; not capable of being repaired, recovered, regained, or remedied; irretrievable; irremediable; as, an irreparable breach; an irreparable loss.”

Second, let’s just be clear about what a temporary restraining order is.  Generally, when you go to court there is a full trial on the issues after both sides have written extensively about the issues in dispute.  The law, the facts, opinions on the law and facts (collectively these massive amounts of papers are called the “pleadings” in the case).

Anyway, that process can take a long time.  Especially in this day and age with the massive cutbacks to the Courts (and every place else in State Government).  So, if “we” want to stop “them” from doing something while waiting for the wheels of justice to grind forward, “we” can ask the Court for a preliminary injunction.  This PI (as it is known in some circles) would be issued by the Court before a full trial, but after a smaller set of papers has exchanged hands between both sides and been presented to the Judge.  The Judge would have time to read both sides’ arguments about why “we’re going to win” and the Judge would also have time to think about the arguments and make a decision (usually that the losing side thinks is wrong).   At that time the Judge could decide to prevent “them” from doing something while we’re all waiting for the full trial.

Now, in this case, we asked for a temporary restraining order.  We told “them” (which also include the Attorney General’s office, since they represent the State) on Wednesday that “we’d” be going to Court on Friday morning to seek a TRO.  On Thursday night, “we” gave our papers to “them.”  (I’ll just note that under the Rules, “we” could have told “them” about this on Thursday and given “them” the papers in the hall before the hearing–but being the good guys “we” are “we” gave “them” more advance notice.  Yay for “us”.)  Then the whole group of “us” and “them” showed up at the Court on Friday morning and gave the Judge our papers.  The Judge already had 11 matters on his calendar for the morning and (I think) 6 other ex parte matters (that is other people who just showed up and handed him a bunch of papers like we did).  Then we asked the Judge to read all this stuff and make some kind of snap decision about stopping “them” right now.  No massive paper exchange.  No time to think about it.  Now.

Usually, TRO’s are issued for things like “quick, the person is about to cut down the tree–if you don’t stop them right now it’ll be all over!”  or “quick, the person is about to take the child on a plane to France and if you don’t stop them we won’t be able to get him back!”   So when we showed up and said “quick, they’ve issued all these permits and they’re about to issue more” the Judge said “that’s not irreparable harm, the permits can be revoked later. And, I don’t think that much pollution is going to actually occur between now and when this can be heard in the regular manner.”

So, here we are.  The District is issuing permits that may well be revoked later.  The harm in issuing the permit is not, according to the District and the Judge “irreparable,” but undoing it will be quite disruptive.  “We” think the mess of undoing all this later is going to be a massive headache and the harm caused, if not “irreparable” will certainly be quite costly.

That’s a shame because public heath suffers every day there is this additional pollution.   If (or should I say “when”) the Court finds that “we” are right, then the District has just acted to make things much, much worse.  The additional waiting would have been a small price to pay for the greater stability and certainty that would have been secured by having the Courts review this statute.

So, this all raises some questions again:  so why not just do the environmental review?  Really, it’s been 18 months, already.  Really, trying to change the law?  Hiring another team of lawyers?  So who’s paying for all this activity, anyway?

Anyway, the Next Chapter:  March 25, 2010–the hearing date assigned by the Court.  Giving “us” and “them” plenty of time to exchange a big bunch of papers on this issue…

You can read what “we” gave to the Judge, here (not including the big stack of attachments).

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