Thank You for Suing Us!

Kite surfer in Sunnyvale

“Thank you for suing us.” The first time I heard those words from a defendant in a Baykeeper case many years ago, I was surprised and thought it was meant sarcastically. Then I heard it again a couple of years later from another defendant, and by the fifth or sixth time a defendant expressed their gratitude for our legal action, I began to realize that the Bay Area’s polluters are a little different.

Some companies take responsibility for their actions. They appreciate that the experts on our staff will work with them side-by-side to reduce their pollution and help them comply with the law. They realize if they cooperate, the litigation will end quickly with them being better stewards of the Bay. They want to do the right thing.

Others know they’re polluting, but they choose to put up one heck of a legal battle to see how much they can get away with. They’ve got shareholders and profit margins and don’t mind messing with people’s health or the ecosystem to reach a higher bottom line. This litigation often gets drawn out and expensive—usually for no reason, since the facts are on Baykeeper’s side.

Then there’s the wildcard polluter: We expect local governments to follow the law, look out for the well-being of their residents, and be good Bay stewards. But that’s not always the case.

Sunnyvale and Mountain View are two of those wildcards. A few years ago, Baykeeper’s investigators found that the cities’ antiquated stormwater infrastructure was failing and polluting creeks in the South Bay. These waterways drain into the Bay, provide habitat for wildlife, and are a go-to recreation spot for residents. Our science team sampled the cities’ polluted runoff into these waterways and found levels of E. coli bacteria as much as fifty times the legal limit.

When we sued them under the Clean Water Act to get them to do the right thing, guess what their response was? Instead of working with us on a plan to modernize their aging system, the cities decided to fight our lawsuit and attack the Clean Water Act itself. Last year, the Supreme Court eliminated some protections for vital waterways under the Clean Water Act in Sackett v. EPA. The cities’ lawyers decided to argue that the Sackett decision meant that South Bay waterways, such as Stevens Creek and Calabazas Creek, shouldn’t be protected under the Clean Water Act either. It was a radical misapplication of the Supreme Court ruling, and fortunately the judge in our case rejected their arguments.

After recent media coverage exposed the cities’ poor choices, some residents of Sunnyvale and Mountain View expressed disappointment that these two seemingly progressive cities were taking legal positions that were clearly against the public’s interests. The residents wondered why the cities wasted money on these frivolous arguments rather than spending it on solving their pollution problems.

I have the same question. And it underscores the need for Baykeeper to remain vigilant and flexible to deal with the different types of polluters around the Bay. While I don’t expect a nod of thanks from them all, I do expect our local governments to act in the best interests of their residents and the local waterways they are stewards over. At the very least, they should not be undermining the laws that are meant to protect us.

Photo, above: a kite surfer in Sunnyvale by Meggle, Flickr/CC