Long Beach fireworks show wins lawsuit in pollution case that had implications elsewhere

The Big Bang on the Bay fireworks show will continue blasting off annually on the eve of Independence Day, after a federal judge ruled that an environmental group, which accused organizers of violating the Clean Water Act and sought to ban the Long Beach event in the future, hadn’t sufficiently proven there were continuous and ongoing violations.

The lawsuit against restaurateur John Morris and his Naples Restaurant Group, which have put on the July 3 fireworks show over Alamitos Bay since 2011, centered around the Clean Water Act.

The advocacy group Coastal Environmental Rights Foundation, the lawyer for which did not immediately return requests for comment, filed the lawsuit in 2021. The group argued that the show had continuously violated the CWA by polluting Alamitos Bay with fireworks discharge without a national permit.

CERF, which asked for an injunction until Big Bang on the Bay received a National Pollutant Discharge Elimination System permit, has fought against fireworks shows over water for years.

But this was the first case to make it to trial. As such, the lawsuit against Big Bang on the Bay had potential implications for similar events, including high-profile shows at Sea World in San Diego, as well as displays in Huntington Beach, Marina del Rey, Dana Point, San Clemente, Redondo Beach, Manhattan Beach and San Pedro.

But Judge Mark Scarsi, of the U.S. Central District Court of California, ruled against CERF this week.

Instead, he found that while there was sufficient evidence that fireworks discharge made it into Alamitos Bay during last year’s show, there was not enough to show a continuous problem – or that such issues were likely to occur in the future.

“Plaintiff has not demonstrated the continuing likelihood that Defendants will violate the CWA,” Scarsi ruled.

“Because Plaintiff has failed to prove continuous and ongoing violations, he added,  “the Court further finds that Plaintiff has not proven its CWA claim.”

The judge dismissed the case without prejudice – meaning CERF could refile the case – on Thursday, April 20.

“This is great news.,” Morris said in a Friday interview. “I am just ecstatic. This is a win-win for the community.  We are already working on making this year’s show on July 3 the best celebration we’ve ever had.”

Morris, owner of Boathouse on the Bay, puts on the annual fireworks show and a related block party on July 3 as a fundraiser for the nonprofit Children Today and other charities. Children Today helps young kids who have experienced homelessness, abuse or neglect.

Morris, who previously said “there’s no way to get” the NPDES permit, has said he received approval from essentially everyone but the federal government, including the California Coastal Commission, the Los Angeles Regional Water Quality Control Board and the city of Long Beach.

He also conducts water quality studies before and after the shows, the result of a 2015 lawsuit against him and the Big Bang of the Bay. And last year, the L.A. Water Quality Control Board issued an order requiring a monitoring report, a best management practices report and an alternative study exploring other locations or types of fireworks.

But CERF, in its lawsuit, asked for an injunction to stop the Big Bang show until Morris received a National Pollutant Discharge Elimination System permit. The foundation has also asked for Morris to be hit with a $56,460 civil penalty per annual show after Nov. 2, 2015 — or $338,760 total for six shows — and pay plaintiff’s costs and attorney fees.

“Defendant John Morris has been on notice that his actions were unlawful under the Clean Water Act for over seven years now,” Livia Borak Beaudin, an attorney who represented CERF in the case, wrote in a statement after the two-day bench trial in early February. “Despite the difficulties of obtaining physical evidence of fireworks discharges to water, anyone watching the shows can see they do result in pollutants entering the water.”

Morris has acknowledged that there was a “low break” in 2022, during which one of the fireworks, launched from a barge, exploded just 10 feet in the air from its mortar, sending debris into Alamitos Bay, according to the judge’s ruling

Morris, though, argued that the incident was rare and the judge apparently agreed, writing in his ruling, that the cause of the pollution in 2022 was an unexpected, malfunctioning firework breaking exceptionally low.”

The judge also disagreed with the plaintiff’s assertion that it’s clear the fireworks show results in pollutants falling into the bay.

That low break was the only example out of 844 aerial shells CERF could provide from the 2022 event, according to the judge’s ruling.