California Environmental Champion Began by Protecting San Francisco Bay

Byron Sher
Byron Sher wrote and passed most of California’s environmental laws.

Last week, I had the honor of presenting Save The Bay’s Founders Award to one of the greatest environmental leaders in California history. Byron Sher represented Palo Alto in the state legislature for almost a quarter-century, and he wrote and passed most of the laws that protect our state’s environment today.

But he got his start in politics as a Stanford Law Professor, when he won a seat on the Palo Alto city council in the 1960s, campaigning against the destruction of that city’s Bay marshes. The city had already allowed San Francisquito Creek to be rerouted, and some marshes to be filled to create a golf course and municipal airport. An airport expansion, conference center, and lagoon community were planned – more filling of the Bay using mud dredged from the city’s tiny yacht harbor that silted in every few years.

Byron and his colleagues fought and won a revolution that preserved Palo Alto’s Baylands, now one of the gems of the shoreline, and a top spot for shorebirds. The Save The Bay movement joined many similar local efforts into a regional movement that created the Bay Conservation and Development Commission (BCDC) and essentially halted large-scale filling of the Bay. Byron served on BCDC for several years while a city councilman. Then Byron continued to champion the Bay from the State Legislature, including creating the San Francisco Bay Area Conservancy, which has preserved spectacular landscapes from the ridges to the shoreline throughout the nine counties.

Byron’s contribution to California’s environment extended far beyond the Bay. He wrote the state’s Groundwater Protection Act, Clean Air Act, Integrated Waste Management Act, and Safe Drinking Water Act. As the chair of key committees on natural resources and environmental protection, he led establishment of state requirements for renewable energy generation, and helped broker the deal to save old growth redwoods in the Headwaters forest. He still serves on the Board of the Tahoe Regional Planning Agency.

The Founders Award represents the spirit of Kay Kerr, Sylvia McLaughlin and Esther Gulick, the three ladies who started Save The Bay in 1961 – they mobilized thousands of individuals who battled to protect San Francisco Bay. Some, like Byron, went on to serve in elected or appointed positions; others worked for decades as activists and organizers in their own communities.

I am so grateful for all that this generation – including my own parents – did to save the Bay for me and my children. And I am proud that Save The Bay continues to pursue ambitious initiatives to make the Bay cleaner and healthier for people and wildlife, with our growing community of supporters.

Cargill’s 370-page attack on the Bay

The Redwood City salt ponds
Does this site look wet to you?

Cargill and its Arizona-based luxury housing developer DMB Associates withdrew their controversial bay fill plan in Redwood City back in May. They announced they would return with a revised development after working to avoid key federal environmental rules like the Clean Water Act from applying in any way to salt ponds in San Francisco Bay.

If you ever wondered what the argument to support such an outrageous claim might look like, you’re in luck. Recently, the US Army Corps posted Cargill’s submittal on line. Click on that link with caution: at 37 megabytes and 369 pages, there is a lot more here to chew on than was found in the short, upbeat press release Cargill and DMB circulated for public consumption in May.

In their May press release, Cargill/DMB stated that they wanted to “clarify certain aspects of the federal regulatory approval process.” No kidding. This document features Cargill’s lawyers’ blunt assertion that the salt ponds are unregulated and not part of the Bay.

Central to the argument is the assertion that all the Bay water Cargill uses to evaporate and make salt – it’s not water at all. This water is instead called an “intermediate industrial product,” it’s “brine,” or sometimes it’s just “liquid.” Whenever Cargill refers to the ponds, it avoids the word “water.” Why? Because water sounds like something that should probably be regulated under the Clean Water Act.

These key environmental laws are critical tools in limiting the pollution of our waterways and preventing unnecessary fill that destroys our wetlands, so important to the Bay. Those protections could jeopardize Cargill’s ability to fill and destroy these baylands. And so the new strategy is to get federal agencies to declare the ponds “exempt,” because Cargill is convinced it is above the law.

This endless legal obstructionism is taking place behind closed doors and out of public view, where Cargill hopes its lobbyists and legal threats may have the most impact. And so I am sharing this obscure legal document with you today: because the Bay Area won’t stand for America’s largest private corporation escaping rules that apply to everyone else.

Save The Bay is going to stay on the case, and we appreciate your help in spreading the word.

UPDATE (9/27/2012):

Cargill’s developer DMB confirmed the substance of this blog post on Wednesday in this news article. Contacted by a reporter, a DMB spokesman first claimed that Save The Bay’s blog post was “completely wrong” – and in the next breath confirmed that Cargill’s position is that the Redwood City salt ponds “are not subject to the Clean Water Act and Rivers and Harbors Act.”

The spokesman also reiterated that Cargill and DMB remain “very committed” to pursuing the Bay fill proposal.

Wonky Wednesday | A clenched fist inside a velvet glove: Cargill, San Francisco Bay, and the law

Aerial view of Redwood City salt ponds
Cargill argues that environmental laws just don’t apply to their Bay salt ponds. Photo by Ian Umeda

When I came to Save The Bay in 2007, I spent some time getting up to speed on SF Bay history. I was born in San Francisco in 1965, and graduated from San Francisco’s Hastings Law School about 30 years later. Yet it was news to me that back in the 1960s, a salt company was claiming to be exempt from key environmental laws designed to protect the Bay.

When Save The Bay’s founders helped create these laws, there was a narrow exception so as not to impact already-approved developments. Cargill’s predecessor, Leslie Salt, tried to claim that its entire SF Bay salt-making operation fit this exemption. Before its claim could be rejected, Leslie withdrew the request.

Like a kid making a promise with crossed fingers, Cargill still rests on this dodged ruling.

Frankly, it’s not a particularly close call. Since Cargill bought out Leslie in the 1970s, lawyers with the California Attorney General’s office have twice told Cargill that environmental rules do in fact apply to its salt ponds, in Redwood City and around the Bay.

Now Cargill is taking their dispute over the Redwood City salt ponds to the feds. And guess what: the Minnesota agribusiness giant has never accepted that key federal environmental laws apply either. Just this past March, a report to the US Army Corps restates Cargill’s scorched-earth position:

Cargill historically has reserved its right to argue that the type and location of the work described in the enclosed work plan is outside the jurisdiction of the court and/or exempt from permit requirements under … the Clean Water Act…

Back in 2010, Cargill conceded that its salt ponds are subject to federal jurisdiction. But apparently Cargill didn’t like the diagnosis, and is now looking for a second opinion.

Cargill brags about donations for Bay restoration and hopes to sway Redwood City residents with a glossy PR campaign. But Cargill has an army of lawyers and lobbyists busy arguing that it is above the law — truly, a clenched fist inside a velvet glove.

Back in 2008, I was certainly surprised to learn some of this history. But you don’t need a law degree to understand that some powerful people believe that repeating a lie often enough will make it become true.

What do you think? Should restating a meritless claim for 40 years be enough to make it hold up in court?