Legal Fireworks

Robert M. Howard’s battle to continue a Fourth of July tradition

Published in 2012 San Diego Super Lawyers — June 2012

Every Fourth of July when Robert Howard was young, his parents took him to nearby Boston Harbor, set him atop their station wagon, and together they watched the spectacle of bombs bursting in air above the dark waters.

Now an environmental lawyer at Latham & Watkins, Howard is fighting to protect that tradition.

In 2010, when the La Jolla Community Fireworks Foundation was sued over environmental issues by the Coastal Environmental Rights Foundation (CERF), Howard, a La Jolla resident, stepped in, pro bono, to represent the two-person foundation that sponsors the La Jolla Cove fireworks.

“I felt very strongly about the importance of civic traditions and the Fourth of July celebration, and as a retired veteran it was very important to me that this tradition continue and not fall victim to some overzealous environmental policy,” Howard says.

CERF’s lawsuit, which also named the city of La Jolla as a defendant, and which sought to halt the display, was filed eight days before the 2010 show. Hotels and restaurants had been booked. The Marine Corps band and a British brass quartet were scheduled to play.

“We had a lot of commitment from participants—not just the 10,000 people that line the coast to watch this,” says Howard. “[The lawsuit] caused public turmoil. It was intense outrage. It was: How could this possibly happen? … It really captured the public imagination.”

In its complaint, CERF claimed the fireworks degraded water quality and harassed marine wildlife. It also argued that the show was subject to extensive environmental review under the 1970 California Environmental Quality Act (CEQA). A CEQA evaluation can take a year, cost more than $100,000, and is open to public suits over its accuracy.

A few days before the Fourth, Howard presented scientific evidence and legal arguments to Judge Linda Quinn. “We showed that, based on federal rules and regulations, fireworks do not harm water quality and are even performed in marina sanctuaries—as long as it’s less than 20 shows per year. And here we only have a once-a-year fireworks show in an urban area.”

Howard convinced Quinn that CERF was wrong on the first two points—water quality and marine life—and the fireworks display went off as planned. But Quinn’s decision on the third point created fireworks of its own.

“[She also ruled that] fireworks, and every other city activity that requires a permit—we’re talking 10 to 20,000 events a year, events that generate millions of dollars of economic activity and tourism—every one of those events requires CEQA review,” Howard says.

“We had everyone from the sponsors of Earth Day to the gay and lesbian pride parade to baseball tournament [organizers]—the broadest and most unique political coalition—saying this is just wrong.”

Howard is helping the La Jolla Community Fireworks Foundation appeal that ruling and will likely argue it this summer. In the meantime, he also worked with California’s Regional Water Quality Control Board to issue a special permit for fireworks. “Our state water regulators are fairly knowledgeable about what fireworks do or do not do to water bodies because of having SeaWorld so close,” he says. The general permit is the first of its kind in the nation.

On its end, the city of San Diego amended its municipal code to exempt permitted activities from CEQA review. And CERF sued again.

“The first and second amendments were the subject of lawsuits,” says Howard. “So now we’re up to four. We’ve just been given notice that CERF is going to sue us again for this year’s show. So it’s become somewhat of an annual event—an annual litigation event.”

Like the fireworks themselves, but with fewer oohs and ahhs.

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