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Sunday, March 21, 2010
Group to file Nestlé appeal
by Suzanne Hurt, published on November 17, 2009 at 9:10PM
Storyline: Nestle Water
No high resolution image exists...
In a precursor to any potential legal action, a grassroots organization expects to take its next step in the fight against the Nestlé water-bottling plant by filing an administrative appeal with the city of Sacramento this week.
A Swiss public TV crew is coming to Sacramento Thursday to interview members of the group, Save Our Water Sacramento, which will re-screen the bottled-water documentary "Tapped" at 7 p.m. Thursday at Crest Theatre, 1013 K St.
Afterwards, group leaders will discuss plans to appeal the city's designation of the Swiss company's $14-million construction project as ministerial, rather than discretionary. A discretionary designation of a project that could possibly harm the environment triggers a requirement for an environmental assessment under the California Environmental Quality Act. A ministerial designation does not.
The California Environmental Quality Act also requires all administrative remedies be exhausted before a lawsuit can be filed, said Evan Tucker, a Sacramento resident who helps lead Save Our Water Sacramento.
"Those are supposed to exist as an alternative to litigation," he said. "We can make our case to the city as to why the decision is incorrect."
The group has been seeking an environmental analysis of the plant since at least September, Tucker said. City Councilmember Kevin McCarty asked the council last month to consider amending the city's zoning code to immediately require special permits for water-bottling plants, but the proposal was never discussed.
In a Sept. 14 memo, Marty Hanneman, director of the Department of Utilities, told Mayor Kevin Johnson and the City Council that CEQA did not apply to the Nestlé Waters North America plant because the requested building permit required ministerial rather than discretionary action.
Save Our Water Sacramento contends the plant is being built under a discretionary Facilities Permit Program and that the city has made discretionary decisions, such as allowing construction without a building permit and issuing a stop-work order to halt construction while the lack of a permit was investigated, Tucker said.
Sacramento attorney Tina Thomas and the law firm Remy, Thomas, Moose and Manley — which wrote the book on CEQA, "Guide to the Environmental Quality Act," in 1993 — has been representing Nestlé in its efforts to open a water-bottling plant in Sacramento.
Nestlé contends the company has followed the process established by the city, Thomas said.
"There is no legal merit to this," she said in an email. "We have followed the city procedures throughout this process and continue to follow city procedures. We believe we should be treated no differently than any other similarly situated light industrial company coming into town."
The group expects the city will respond formally and then set up a hearing for the appeal. The California Public Resources Code requires the city to have such a process. However, no administrative appeals process could be found in the city code, he added.
Save Our Water Sacramento is discussing representation with prominent CEQA attorneys.
Suzanne Hurt is a staff reporter for The Sacramento Press.
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'Discretionary' permits DO require CEQA review. Such permits are at the 'discretion' of the public entity where that entity has no routine consideration of such projects, such as a unique project intended for a specific use that may or may not have an environmental impact. Such permits usually require permission at a higher level than that of the mere bureaucracy, such as sanctions granted by public officials responsible for a jurisdiction.
While the Nestle's build out of the physical shell of its project may not have required 'discretionary' approval due to its routine nature of merely making changes to a building, the intended USE as a bottling plant taking significant amounts of municipal water for repackaging purposes may very well be subject to CEQA consideration.
The potential error in this was in granting the Nestle permit at the 'ministerial' level rather than considering the USE of the facility, which may very well be 'discretionary'...
It is laughable to read Tina Thomas' interpretation here for their firm makes a handsome living in litigating CEQA guidelines for such projects due to CEQA's somewhat nebulous framework which is CONSTANTLY subject to judicial interpretation, on a project by project basis...
The good thing in all of this for those opposed to Nestle's untrammeled use of our municipal water for repackaging purposes is that IF the 'Save Our Water' group is able to proceed to court, injunctive relief against Nestle is almost certain, and could prevent opening of the plant, or if already opened, could shut it down immediately, especially given the current state of water controversies in California...
I hope the Save Our Water group is able to pull this one off...
A project with the potential enviornmental impacts such as the Nestle project, should have had full enviornmental review and an Environmental Impact Report (EIR) should have been completed. Obviously, neither the City nor Nestle wanted an EIR. Somehow a Negative Declaration was filed on this project, declaring that The Project, either did not constitute the definition of a "Project" under CEQA, or that the project would have no significant enviornmental impact.
Off the top of my head it seems that there is clearly a basis for a lawsuit as well as an injunction to halt the project, (if the timelines have not passed) Save Our Water, should sue the City to halt the project and force a full EIR.
http://ceres.ca.gov/ceqa/guidelines/intro.html
Exerpts below:
Members of the public may challenge, in court, a wide variety of public agency action and inaction, but only if they first present those challenges to the agency itself within 30 to 180 days after the occurrence of the challenged action, depending upon whether an NOD was filed or not by the agency.
The CEQA procedure involves a number of steps which produce an environmental document examining the lead agency's as well as the responsible and/or trustee agencies' permit decisions.
The first step in the CEQA process is to determine whether the proposed project is subject to CEQA. There are a number of statutory and categorical exemptions. If the proposal is not covered by CEQA, the lead agency may file a Notice of Exemption. If the project is covered by CEQA, the lead agency must prepare an Initial Study to determine whether the project may have a significant adverse impact on the environment. The initial study must be completed within 30 days after an application is accepted as complete.
If the Initial Study shows that the project will not have a significant effect on the environment, the lead agency must prepare and circulate a Negative Declaration. Where potential significant effects are shown, but the project is modified such that the effects are rendered insignificant, the lead agency must prepare and circulate a mitigated Negative Declaration. In either case, the Negative Declaration must be circulated for review for 30 days and must be ready for adoption by the lead agency within 105 days after a completed application is accepted.
http://ceres.ca.gov/ceqa/flowchart/project.html
CEQA applies to all “discretionary projects.” The term discretionary refers to situations in which a governmental agency can exercise its judgment in deciding whether and how to approve or carry out a project.
Ministerial projects including issuance of building permits and approval of individual utility service connections and disconnections (CEQA Guidelines Section 15268). Projects that have both ministerial and discretionary aspects should be considered discretionary overall and subject to CEQA.
One first must determine whether a public agency action is ministerial. A ministerial action is a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.
I would say that the project is NOT simply Ministerial, based on the amount of water needed by the project. The project could not go forward without discretionary approval of the water usage, and the Council approving the water contract.
That's what the 'Save Our Water' group is appealing, and hopefully will prevail...
And btw even if they "prevail" they would most likely only succeed in delaying the project 2-5 years at best.
There is an outside chance that they could win, get their attorney's fees, and force the City to do a full EIR. But as in almost all CEQA cases, it ends up being a Pyrrhic victory... the City/Nestle will hire an EIR consultant, and pay them hundreds of thousands of dollars to end up with the foregone conclusion that the project would not create a significant impact. EIR consultants hired for CEQA projects only stay in business if they conclude 98% of the time that a project will not harm the environment, or after mitigation measures, there would be no significant impact. So the conclusions of any EIR are already known... when the EIR is circulated..it could be attacked...and dragged through court... however 98% of EIR attacks fail...but they do take time and cost money....often companies just fold up their tents and go elsewhere if it looks like a long legal battle.
So given the realities of what will happen in the end... SOW needs to decide how much they want to fight...in the end...the plant will be built. For many, its more of a political statement to hold up projects.,..and in this case... I would say it is worth it...just to stick it to the morons running this City.
But McCloud was able to boot Nestle, as have a number of other jurisdictions, all excellently depicted in the documentaries FLOW: FOR THE LOVE OF WATER and TAPPED being shown tonight at 7pm at the Crest Theater... and what counted in those previous battles was community will, and there is a groundswell of that growing in Sacramento, which is why TAPPED is being shown again tonight... Hopefully these same people will get the connection between the Nestle backroom deal and KJ's efforts on the SMI and other obvious corruptions, and vote his proposals and him out of office just as soon as possible...
If SOW had a rally..maybe a hundred people would show up..so what.... I've been at council meetings where hundreds showed up in protest... the council simply ignores them all.
And as I stated above.... the project should get a full Environmental review. I find it very telling that the City of McCloud did a full EIR, and that they felt the proposed water plant WAS a project as defined by CEQA. (Also see below, so did the Attorney General Jerry Brown!) Clearly, the City of Sacramento knew about the problems that Nestle had in McCloud and decided to avoid the entire issue of CEQA... what a bunch of scumbags...
If SOW finds a decent CEQA attorney..they should prevail....that means that they would delay the project for some years...and possibly leave a bitter taste in Nestles mouth.
Nothing in this joke of a city will change, without a court order. The developers and wealthy have purchased the Democrats votes and own the Council.
Oh and some other hints: July 28, 2008- "....California State Attorney General Jerry Brown sends letter to the Siskiyou County Planning Department warning of potential lawsuit if global warming impacts of Nestle project are not analyzed (Story covered by Associated Press)...."
http://www.mccloudwatershedcouncil.org/nestle-project
AND:
"...(5/12/2008) Attorney General Jerry Brown on Tuesday said he will sue to block a proposed water-bottling operation in Northern California unless its effects on global warming are evaluated.."
http://cbs13.com/local/nestle.bottling.plant.2.782999.html
I'm sure the 'Save Our Water' group is very aware of the legalities involved with this effort, and not simply those you reference regarding the AG... They are following legal protocols and pursuing administrative remedies before proceeding to litigation, as is required in all civil causes...
This city is not a 'joke' -- it is where many of us call home, including those of us who are Sacramento natives. What is a 'joke', albeit not a very funny one, is the cynical use of KJ as a shill for a vision of a corporate Reno that this City will become under the SMI, which basically usurps power from citizens and vests power in the backroom of the mayor's office...
Much smaller jurisdictions have booted Nestle and other corrupt actors, and now it's our turn.. This is not the first, and it won't be the last... But it's today's battle and the nepharious nature of its backstory will be exposed through media apart from MSM, for MSM and their backers are squarely planted behind Johnson and his ilk of urchins -- that's why so much of this goes unreported elsewhere other than this online outlet and the SNR...
It is also the subject of some powerful documentaries which have already influenced hundreds of Sacramentans, if not thousands, to not only act against Nestle, but to connect the dots between the covert nature of the Nestle deal and this mayor and the obvious corruption he has brought to this town since he swept in on Obama's coattails, and the anti-incumbent mood that became manifest last year...