Need for Discovery May Keep Cross-Border Pollution Suit on Track

SAN DIEGO (CN) – A federal judge questioned Monday whether he could dismiss a novel lawsuit challenging cross-border pollution at the U.S.-Mexico border under the Clean Water Act before any discovery has been conducted in the case.

The pier of Imperial Beach (Photo by Kotowski via Wikipedia Commons)

“The question I have ultimately for both sides is if this is the kind of allegation that requires some discovery,” U.S. District Judge Jeffery Miller postured at a hearing on the government’s motion to dismiss two lawsuits brought by the cities of Imperial Beach and Chula Vista, San Diego Unified Port District and Surfrider Foundation over pollution from Mexico which has fouled south San Diego beaches for decades.

The cities and Surfrider brought the pair of lawsuits earlier this year claiming the International Boundary & Water Commission-United States Section and Veolia Water North America allowed sewage and pollution to cross the Tijuana River from Mexico into U.S. waterways due to its inadequate and failing wastewater infrastructure.

The lawsuit survived an earlier motion to dismiss in August.

California filed its own lawsuit over the cross-border pollution problem in September after state Attorney General Xavier Becerra gave notice of the state’s intent to sue this past summer.

U.S. Justice Department attorney Andrew Coghlan told Miller on Monday that Mexico and the U.S. have agreed to work together on the pollution issue, noting a treaty from 1944 which created the International Boundary and Water Commission to settle disputes.

“This is not a purely domestic problem. Pollution which generates in Mexico and flows into the U.S. … is an international pollution problem,” Coghlan said.

Getting the South Bay International Wastewater Treatment Plant built took “three acts of Congress” and a meeting between the presidents of Mexico and the U.S. among other foreign policy decisions, according to Coghlan.

Coghlan said the Clean Water Act does not apply to the flood control structure in place and that if it did, the act would require the U.S. to ensure the water quality of the water which flows into the structure and not just after it’s been treated. The U.S. would essentially be “acting as a guarantor of actions taken by Mexico,” according to Coghlan

But Miller pointed out the U.S. is already doing that.

“Isn’t the U.S. already doing that by treating 25 million gallons of raw sewage [from Mexico] a day?” Miller asked.

“Absolutely, but it’s not open-ended,” Coghlan replied.

Miller questioned the government’s contention the San Diego cities hadn’t properly complied with the notice of intent to sue required to be filed before individuals can sue under the Clean Water Act.

But the judge also noted he believed “the allegations are very problematic in terms of adequately pleading,” calling the claims “highly speculative.”

Surfrider attorney Margaret “Peg” Warner with McDermott Will & Emery of Washington suggested the “exceptional circumstances” needed to dismiss the case are not present.

“There are serious disputed facts about the treaty and sovereign immunity. At a minimum, the parties should be allowed to develop the facts,” Warner said.

Warner pointed out there have been no affidavits, declarations or testimony filed by the government to support its claim the lawsuits “disrupt foreign policy relations” between the U.S. and Mexico.

She suggested perhaps the lawsuit will even help to assist the government in resolving the ongoing pollution problem.

“The government has presented no law, no facts, no evidence that what we are suggesting cannot be accomplished under the Clean Water Act and proper diplomacy. Why not try?” Warner said.

Matthew Edling of Sher Edling in San Francisco argued for the cities. Thomas Bienert of San Clemente represents Veolia Water North America.

Miller took the matter under submission.


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