by Carolyn Chase
"t's a difficult situation whenever you bring far right developers into the same room as far left environmentalists" declared Mayoral spokesperson Ric Grenell. Grenell, who first qualified his remarks by stating "we rarely call-in," was calling-in to Gloria Penner's public radio talk show discussing the lawsuit filed by environmentalists against the City's attempt to implement the federal Endangered Species Act, the MSCP (Multiple Species Conservation Program).
His polarized remark confused me. It made me wonder where the "far-right" environmentalists and "far left" builders fit in. Or are those just other examples of threatened or endangered political species in San Diego?
Grenell then got to his real objective: "Let's fix it. Let's not throw this into the court system." Matt Adams, representing the Building Industry Association (BIA), had a similar line, "To be slapped with a lawsuit during negotiations is disingenuous." and "Does every skirmish have to result in a lawsuit?"
The City has good reason to not want to be in the courts on this one. The track record of the lead plaintiff, the Southwest Center for Biological Diversity is formidable They have an astonishing history of actually winning 80% of all their cases brought forward concerning the ESA.
Negotiations on the disputed projects were not taking place. The projects that the lawsuit contends violate the ESA were approved. "Negotiations" had been completed and 65 vernal pools are being bulldozed under permits granted by the Army Corps of Engineers and the City Council of San Diego and with the tacit support of the U.S. Fish & Wildlife Service via the MSCP program.
Shall we talk about "disingenuous"? The BIA objecting to the use of litigation is particularly laughable. The City is most often at the other end of builder lawsuits. To the contrary, environmentalists have shown considerable restraint throughout the process. They don't have the resources to pursue lengthy court processes where other substitutes will do.
Adams further defended the MSCP by pointing out that the developers had mitigated the damage done to endangered species on the disputed project site by purchasing 4.5 acres for conservation for every sensitive acre they destroyed. "When you have to mitigate with four times as much as you impact, that's a lot."
This avoids the key issue which is the standards that will be used to allow destruction/mitigation and the exceptions that can be granted. Furthermore, the builders would not have had to buy mitigation acres if they had avoided taking the particular acreage that contained the most sensitive species. Environmentalists are not always asking for more land. We are asking for certain particular pieces when they are unique, where avoidance is possible, and their protection is scientifically justified.
This is where the glib, divisive, political characterizations of the Mayor's spokesperson really break down. Last time I checked, the philosophical underpinnings for support of the rule of law over the rule of a few - or even the rule of the majority - was as about as far right-wing tenet as any. This is one of the founding principles of that right-wing bastion: the John Birch Society - where if you try to move any farther rightward on the wing, you fall off the plane!
The rule of law is an essential political dividing line between a republic and a democracy. Ever heard of the term: republic-anism? Without confusing the name with the party, republicanism is dedicated to the equality of man before the law, and the idea that decisions should be based on the independent interpretation of legal standards, not subject to the shifting and negotiable whims of the body politic, except by certain checks and balances. The concept of democracy is defined by the rule of the majority. In an archetypal world, democrats would believe that everything should be decided by how the majority votes on it. This is where who has voting rights is key to the process.
Our government, at all levels, is a shifting mix of these concepts today. But attempting to paint environmentalists - or builders - as either right or left is itself disingenuous.
While supremacy of the rule of law is deemed essential protection against tyranny, politicians throughout the ages have preferred that governance should be negotiated among the powerful. Contrary to how the Mayor's office would label them, fundamentally, the Southwest Center is standing up for the rule of law. They believe that the protection of endangered species should be governed by law and informed by science, not simply negotiated between interested parties subservient to political expediency.
In negotiations over how the ESA and the MSCP is going to be implemented, the votes have so far been limited to those who find their way into the public and often private negotiating rooms between the various agencies, elected officials and special interest groups. In the informed opinion of the Southwest Center - who've been there throughout - although the MSCP is laudable and important, it still has yet to meet the standard of the rule of their governing law, the ESA.
If the City truly doesn't want to find itself in court, than it should agree to fix the standards cited by the Southwest Center as being inadequate.
The Center has consistently testified on behalf of those standards and at every hearing and throughout the process. It should come as no surprise to anyone involved that this lawsuit is happening now. This is also part of why there is such solidarity in the environmental community as well. Fourteen groups from across the political spectrum have signed on.
The devil as always is still in the details. This was an implementation problem where the city decided to push projects where they had to have known they would be sued. In my estimation, this is where they want to take their stand. This is where many conservationists have felt they've had to take their stand. We tried as hard as we could to fix both the projects cited in the lawsuit from inside the process and got an absolutely irresponsible result both times. How many bad examples can we afford to watch while our comments fall on to deaf ears? There will be great opportunities ahead for plenty of meaningful discussions once we get their attention.
Those who characterize this as a skirmish continue to miss the point. If the MSCP is truly worthy of the oft-repeated moniker "national model," it can surely stand this kind of test - of both the program and the uncommon coalition of landowners, environmentalists and officials at all levels that has dealt with all manner up seemingly impossible challenges.
We must establish minimum scientific standards for the credible implementation of the MSCP. This is the only way that a sufficient coalition can be built for the other major hurdle on the MSCP journey: taxpayer funding. While environmentalists and developers may argue over which bits of land to save and which to swap, we had best get our acts together before thinking the taxpayers are going to pay for it. Only if the MSCP is truly defensible does it have a chance pass muster with the voters - and that is the MSCP that everyone involved is still working toward.