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Wednesday, Oct. 28, 2009

Wal-Mart foes target Merced distribution center plan in suit

Groups contend not enough is being done to mitigate impacts.

Wal-Mart distribution center opponents said Tuesday they found flaws in the environmental review and will file a lawsuit demanding more be done to minimize the center's impact.

"We should be commended for picking up the torch that has been dropped," Merced Sierra Club Chairman Rod Webster said.

The case will be filed either today or Thursday in Merced County Superior Court. Sacramento attorney Keith Wagner, who represents the opponents, is still finishing up his arguments. A copy of the appeal was unavailable.

The lawsuit will probably call on the city to make Wal-Mart do more to reduce air and water pollution.

The Merced City Council voted to approve the project last month after three years of studies and six hours of public debate. During the meetings, supporters outnumbered opponents roughly by a 2-1 margin.

The acrimony surrounding the project, which subsided in the past month, will swell once more.

Merced County Jobs Coalition President Doug Fluetsch said it's the city's job -- not the opponents' -- to decide whether a project has been properly reviewed. "There are a handful of people in Merced who want to ruin it for everybody else," he said. "It makes me sick."

Opponents, Fluetsch said, were penalizing every unemployed person in Merced because they're delaying the 1,200 jobs that will be created by the 1.2-million-square-foot distribution center.

Merced City Attorney Greg Diaz said the environmental impact report is solid. "This (impending lawsuit) is not unexpected," he said. "We anticipate a vigorous battle on both sides."

The city's legal bills will be paid by Wal-Mart, a requirement of the project's approval. The city hasn't yet hired a firm, though it's been in talks with Rutan & Tucker.

No lawsuit brought under the California Environmental Quality Act can stop a project. It only causes delays.

Merced Alliance for Responsible Growth chairman Tom Grave said the case could be wrapped up in two months if Wal-Mart is willing to negotiate.

If not, it could drag on in the court system for a year or more. The case could go before Presiding Judge John Kirihara, Judge Carol Ash or a visiting judge.

Grave said more needs to be done to reduce pollution from the diesel trucks that will cycle through the complex between Child and Gerard avenues.

The attorney will argue air quality impacts weren't properly addressed by EDAW, the firm that analyzed the project. Grave said EDAW improperly relied on standards set by the San Joaquin Valley Air Pollution Control District.

As with any part of an environmental lawsuit, the argument is fairly technical. The gist is that one project may not be deemed significant for air pollution if fewer than 10 tons a year of each kind of emission is released.

But several insignificant projects taken together could lead to major impacts on the Valley's already poor air, which is what worries opponents.

Grave said he'd like to see Wal-Mart only use its hybrid big rigs in Merced and also force its third-party contractors to use cleaner diesel trucks.

MARG has been accused of being a front for special interests outside the community. Grave said that's not the case. The attorney, he said, is working pro bono. He may be able to recoup his fees if the group prevails in court.

Grave said MARG's membership includes Merced Associated Democrats, the Merced/Mariposa Teachers UniServ Council, the Sierra Club and the Merced-Mariposa Central Labor Council.

Wal-Mart's spokesman was unavailable for comment, though the company has expected that the project would be challenged in court.

Reporter Scott Jason can be reached at (209) 385-2453 or sjason@mercedsun-star.com.