At a status conference this afternoon, Magistrate Judge Jeremy Peterson directed AT&T and the California Sportfishing Protection Alliance, or CSPA, to meet and confer on a possible path forward that would enable AT&T to conduct tests related to its two lead-clad cables in Lake Tahoe while preserving the 2021 consent decree between the parties. Although both parties agreed that more testing and risk assessments should be conducted, they disagreed on whether the consent decree should remain in place beyond a Thursday, July 27, deadline.
In 2021, AT&T entered into a
consent decree with the CSPA to remove two lead-clad cables discovered at the bottom of Lake Tahoe. The company agreed to set aside $1.5 million in removal funds and to promptly seek all necessary authorizations from federal, state and local agencies.
AT&T yesterday, Tuesday, July 18,
proposed delaying the removal of the lead-clad cables in light of recent
Wall Street Journal reports asserting that such cables pose a nationwide public health risk. The telecom giant said that while it “strongly disagrees” with the reporting, the “responsible course of action” would be to delay removal of the cables to allow interested parties, including the U.S. Environmental Protection Agency, to conduct an analysis.
AT&T also warned the CSPA that if it does not agree to “preserve the status quo so the safety of the cables may be fully adjudicated,” the company “anticipates exercising its contractual right to vacate the Consent Decree and resume this litigation so that the safety of these cables can be established based on reliable, scientific evidence that can be shared with the public and other stakeholders.”
The CSPA
replied that it opposed any further delay, arguing that the telecom giant should honor its previous commitment to begin removal activities on Sept. 6 subject to a new permit from the California Department of Parks and Recreation.
Navi Dhillon of Paul Hastings, speaking on behalf of AT&T, said today that the “landscape has really changed here” following the reports from the
Journal. He said
it is imperative the company conduct additional tests and risk assessments on the cables as soon as possible. Dhillon added that for the time being, the status quo - the cables remaining in Lake Tahoe - should be preserved, noting that “regulators may be involved” in the matter soon.
Dhillon continued that while AT&T was willing to continue discussions with the CSPA on a path forward to keep the consent decree in place, AT&T would likely move to terminate the agreement if the parties remained at an “impasse” after July 27. However, Dhillon noted that AT&T would still be willing to engage in discussions with the CSPA even after a potential termination of the consent decree.
John Kirk Boyd, speaking on behalf of the CSPA, said that while the group agrees that additional testing should be conducted on the cables, AT&T is still obligated under the terms of the consent decree to remove the cables by Sept. 6. Boyd expressed concerns that any further delay beyond Sept. 6 could postpone removal of the cables from Lake Tahoe for another year due to seasonal considerations. Boyd also said that the CSPA was prepared to move forward on an expedited basis with a motion to enforce the consent decree.
Judge Peterson told Boyd that the CSPA may want to take into account that AT&T is in “a different position” than last month. He urged the parties to continue further discussions to salvage the consent decree and said that he would schedule a further status conference for Aug. 24.
In response, Boyd requested that the court move forward with an expedited briefing schedule on a potential motion to enforce the consent decree. Dhillon also concurred that an expedited briefing schedule would be appropriate ahead of the July 27 deadline.
Acknowledging that there is perhaps “no way around” an expedited briefing schedule, Judge Peterson directed the parties to confer and submit a stipulated briefing schedule and to be “explicit” on what their motions would be. The judge noted that the consent decree is “unusual” and that he was unsure whether a motion to enforce is “particularly practical.” The judge also reiterated his earlier suggestion that the parties continue efforts to preserve or amend the existing consent decree.