The Loma Prietan
December 2002/January 2003
Environmental Groups Sue Re: SFO Scientific Documents
by Amy V. Quirk, Esq., Airport Committee Chair, Alliance for a Clean Waterfront
On August 8, 2002, a coalition of Bay Area environmental groups filed a civil action in San Francisco Superior Court against the City of San Francisco and City officials to force disclosure of important documents concerning San Francisco International Airport's (SFO) highly controversial Bay fill runway expansion. The documents, which City officials have adamantly refused to release, address the potential environmental impacts of the massive Bay fill project.
San Francisco BayKeeper, the San Francisco League of Conservation Voters, and Arc Ecology jointly filed the action. All three of these groups are members of the Alliance for a Clean Waterfront (ACW), which is coordinating efforts to obtain the documents.
Following months of prodding by the three groups plus the Sierra Club, as well as an order (dated April 23, 2002) by San Francisco's Sunshine Task Force requiring disclosure of the information, the Superior Court in San Francisco proceeded to take action.
The information sought by the groups includes, but is not limited to, nine volumes of material that were shipped to a panel of scientists in April of 2002. The City's Department of the Environment characterized the information as a "priceless natural science library" and noted that the data "represent the most comprehensive environmental studies ever conducted on the Bay. The studies examine hydrodynamic, sedimentation, water quality and biological implications...and include a first-ever catalogue of all species of plant and animal species living in the Bay ecosystem."
"This information is essential to public participation and accountability in the evaluation of the impacts of the Bay fill project," said Leo O'Brien, Acting Executive Director of San Francisco BayKeeper. "The Airport is really shooting itself in the foot with this secrecy. Obviously, there is a growing belief that SFO is hiding damaging information."
Efforts to Withhold Documents
SFO has been resisting by claiming that it has a side-agreement with the Federal Aviation Administration (FAA) that insulates it from disclosure. The City scheduled an October 31st hearing before Judge James McBride to challenge and dismiss the civil action. The City argued that since the FAA was not a party to the case, the legal action was subject to dismissal. The City's challenge was in the form of a procedural motion called a "demurrer," with the related motion to dismiss, and did not go to the actual merits of the case.
The environmental groups vigorously opposed the demurrer. Professor Alan Ramo of the Golden Gate Environmental Law and Justice Clinic and David Greene of the First Amendment Project presented oral arguments on their behalf.
Fortunately, Judge McBride flatly denied the City's challenge, so the litigation will proceed. The Court ruled that the case could go forward in state court without the participation of the FAA as a party. During the hearing, the City had claimed that this was merely a dispute between the environmental groups and the FAA and that the City "took no position" and "didn't care" whether the records were released. The Court ruled that the City had to defend its refusal to release the records in state court. In other words, the City has "to care."
This rhetoric from the City is another example of the airport attempting to have it both ways. They claim that they want to help the public throughout the necessarily complex review process, but then find ways to prevent the public from obtaining the information it needs to provide knowledgeable critiques of their proposal and related environmental documents.
"San Franciscans need the information contained in these documents to be able to make an informed choice about the future of the airport's plans to extend runways into the Bay. It is a travesty that these officials have ignored the order of the Sunshine Task Force and insist on keeping this information secret," added Amandeep Jawa, President of the San Francisco League of Conservation Voters.
During the hearing, Judge McBride made several interesting comments, which shed some light on his thinking. The Court said [commenting on the FAA's labeling of SFO runway documents ‘Confidential'], "What business do they have slapping a cover on a document? ... Something locally generated, locally paid for, and saying nobody can see it?" (Court Transcript 24:13 and 15-16).
Important Litigation
This action is the first big test of the amended San Francisco Sunshine Ordinance, since the voters adopted it overwhelmingly in November 1999. SFO's purposeful refusal to comply with the Ordinance or comply with Task Force's April 23, 2002 Order threatens to undermine the public's will and calls into question the sincerity of the public information efforts.
"San Francisco voters have made clear in two elections that they want to decide the airport project, and they want documents like these released so they can meaningfully participate in that decision," said Professor