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Wednesday, June 01, 2011

Publisher’s Notebook:

Doing ‘Severe Harm’ to Malibu Lagoon


Having gotten the California Coastal Commission’s administrative snafu out of the way at the hearing, Superior Court Judge Ernest Goldsmith saved his substantive assessment of the reasons he granted a stay order to halt the Malibu Lagoon project for his written ruling.
Though brief, as is his fashion, Goldsmith’s ruling is free of legalese and straight out states that “the harm that would result from the project approved by the Coastal Commission would be severe.”
The judge adds, “The Court finds the project would damage various types and species of flora and fauna, several of which are endangered. Birds in the area, some of which are endangered, would be deprived of food sources found in the lagoon.”
Goldsmith concludes that the opponents of the project “have shown to the satisfaction of the Court that many species and their habitat would not recover.”
Unlike state and local politicians who are often willing to ignore constituent concerns that clash with organizations whose endorsements and membership votes they seek, the judge takes constituent challenges to government agencies and powerful lobbies seriously.
His rulings have questioned environmental groups that have formed alliances with the very agencies they often came into existence to watchdog, especially now that public agencies are often sources of revenue for projects that they allocate to these organizations.
Goldsmith also has shown a judicial commitment to the fostering of public debate about policy alternatives, including the formation of single issue constituencies, such as the one challenging the lagoon project.
Last month, Goldsmith took on the carbon trade deal brokered with some of the state’s powerful polluters. There, he ruled the state Air Resources Board “seeks to create a fait accompli by premature establishment of a cap-and-trade program before alternatives can be exposed to public comment and properly evaluated.”
His action, barring overturn by appeal, sends ARB back to the drawing board to take into account the impact on those in areas affected by trade deals that give heavy polluters a way to not have to curb their individual adverse impacts on the environment.
As a judge, if Goldsmith determines that government has limited its assessment of options to preconceived notions, he thinks the courts should intervene.
Although State Parks appears adamant that the project as it exists is the only way to address its perceived concerns, if the critics of the project come up with a kinder, gentler alternative, the agency should look at it.
If this reassessment takes place, instead of a project that declares all-out war on part of Malibu Lagoon, the state might be persuaded that a narrowly defined battle could do the job and have less impact on wildlife.
From other rulings, the judge appears to concur with lagoon project critics that the amount of funding should be dictated by a project and not the other way around.
Although it is true that state dollars are in short supply, California’s natural resources are in even shorter supply. Pressure to design a project that meets predetermined criteria and a set funding allocation might cloud agency judgment and prompt a push for a bigger project than necessary.

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