Why This, Not That? - Coronado Eagle & Journal | Coronado News | Coronado Island News: Opinion

Why This, Not That?

An Opinion by Luan Troxel | Posted: Friday, June 7, 2019 4:36 pm

The issue of suing versus using diplomacy with regard to our cross-border pollution crisis recently came into the open again this week with Imperial Beach mayor, Serge Dedina, criticizing Coronado for not joining the lawsuit he is leading against the U.S. government for violations of provisions of the Clean Water Act.

Coronado has supported the suit by offering $50,000, but has kept its distance by not joining and, instead, by engaging in what it calls the “diplomatic approach,” including hiring a DC lobbying firm, reportedly carrying on talks with the EPA and, most recently, meeting with former mayor of New York City and Donald Trump’s personal defense attorney, Rudy Giuliani, to brief him on the issues.

Some Coronado residents feel strongly that Coronado should join the suit as the problem affects our beaches as well as those of Imperial Beach. Others feel just as strongly that Coronado should not join the suit. Given the resurgence of the issue, it seems a good time to consider fleshing out some of the issues in terms of “why this (diplomacy) and not that (suing)?” Engaging in a lawsuit obviously shouldn’t be undertaken without a good deal of consideration. So, let’s look at some of the issues legal analysts suggest one should consider before suing.

Does the case have merit?

Since three lawsuits have already been launched (one led by IB, one by Surfrider, and another by the State of California), there is some indication of the merits of the case (let’s just speak of it in the singular for ease of discussion here). Twice the Trump administration has asked the court to dismiss the case on the grounds that the international treaty overrides the U.S. clean water laws. Twice, the judge has denied this contention. So, for now, it is reasonable to assume that the case has merit. Not that it will prevail. Just that it has merit.

Is there another way to resolve the dispute?

This is where Coronado differs from the litigants. It argues that rather than taking the highly conflictual action of suing (the stick approach), it would be more beneficial to negotiate (the carrot approach). It does seem like a good first step to try to ask for a correction to a transgression. However, IB and Surfrider have both said that they did do that exclusively for a long time. But when a strategy doesn’t appear to be working, it seems reasonable to shift tactics. For Coronado, perhaps the time of feeling like the carrot isn’t working hasn’t passed yet. But once you feel there is no other way left, a lawsuit is a possible option.

Will you be able to collect if you win (or is suing a waste of time)?

There are really two issues here. One is can you force the defendant to pay up (in this case, move to fix the problem)? It is certainly arguable that you can’t make the federal government do anything. And yet, it is also arguable that you certainly can’t if you don’t even try. The second issue is, can the defendant fix it if it loses and wants to fix it (that is, is it fixable)? Most everyone involved in this case has said that fixing the problem is not beyond our technological means; it is simply a matter of money and will.

On these bases, it does not seem unreasonable to engage in a lawsuit. The water is polluted, the source is generally clear, the mechanism to deal with the polluted water is not working (it’s there, but it’s not being enforced), the spills are not lessening, the technology exists to mitigate the flows, negotiations have not worked (this is a long-standing, known problem), so what else is there?

Coronado says it has a different approach that can work, raising awareness. It is hard to believe that the government isn’t already aware - there’s nothing more educating than being slapped with a lawsuit (or three with eight plaintiffs). And, let’s not forget that the government is the source of the pollution data. They already are aware.

Next, let’s take negotiating while dangling a carrot. What’s Coronado’s carrot? What does it have to offer the government in exchange for fixing the problem? Arguably, the strongest position is to negotiate while being party to a suit. Especially one which has already been found to have merit. Because then the carrot is that if the government agrees to fix the problem, you drop the suit. And, isn’t that really the end game?

It’s hard to see what is new or different or particularly powerful in Coronado’s approach. It mostly appears to hang on hope – the hope that the administration will smile on Coronado for having played nice in a playground full of hooligans who are suing. Maybe. Maybe that will work.

But from my point of view, when I work through all of the pros and cons, I’m left with this. The issue of ocean pollution is not two-sided. It seems crazy to me that the hubbub of the last week seems to be pushing people to takes sides on such an issue. I’m just going to say it: I don’t believe anyone could possibly be in favor of sewage-tainted beach water.

At the same time, the problem has been going on for a long time – long enough that anyone with any authority who was going to try to fix the problem voluntarily or with a little diplomatic nudging would have done so already.

So, why sue versus not? Because it would appear to be the right thing to do. First, there is a serious problem. Second, it is long-standing with policies and mechanisms meant to prevent pollution, but they haven’t been enforced. Third, many entities have tried for many years to get the government to do the right thing, but it hasn’t. So, what real option is left?

All that’s really left is the notion that since other entities are already suing, Coronado can sit back and reap the (potential) benefits of the suit while not actually being a party to the suit. Either the suit prevails and the beaches get clean and we benefit by having clean beaches and having saved the money. And because we will have contributed $50,000, we can even say we helped make it happen.

Alternatively, the suit fails, the beaches remain tainted and we have saved the money.

What’s the right thing to do?