Malissa Hathaway McKeith is a recognized expert in international water disputes, groundwater hydrology and remediation, and environmental regulations. She clerked for several judges before beginning her law practice including Justice Stanley Mosk of the California Supreme Court. Malissa spent 30 years practicing at several major Los Angeles firms including O’Melveny & Myers, Loeb & Loeb and LEWIS Brisbois. Much of her career has focused on environmental justice at the United States/Mexico border where she participated in negotiations over the North American Free Trade Agreement Environmental Side Agreements and several amendments to the 1944 Water Treaty between the United States and Mexico.
Malissa’s family founded CURE in 1997 to fight the removal of food infrastructure built during the Roosevelt Administration and intended not only for public safety but groundwater recharge. She also spent over a decade challenging the transfer of water from the Imperial Valley to San Diego, the largest ag to urban transfer in history. This transfer greatly accelerated the demise of the Salton Sea and ultimately will substantially reduce agricultural land in Southern California. She also represented several environmental and civic organizations in Mexico’s challenge to the concrete lining of the All American Canal.
Malissa now devotes her time to pro bono work as President of CURE. CURE continues to question the efficacy of allowing for development in unsafe areas, the mismanagement of water allocation, and programs focused on promoting urban agriculture for food sustainability and health. She has served on many boards and commissions including the Colorado River Board of California, the State Bar of California, the Governor’s Military Base Reuse Commission, California Women Lawyers, and the Riverside Food Systems Alliance.
To read all or portions of Malissa McKeith’s history, click on the links to your right.MalissaMcKeith-Bio .
Malissa’s journey to becoming an environmental advocate has its roots in the impoverished towns along the United States-Mexico border. In the late 1980s and early 1990s, Malissa worked as an environmental lawyer at Baker & McKenzie, the world’s largest law firm. One of her chief responsibilities was helping U.S. corporations open divisions in
Mexico and Latin America. In the course of this work, she witnessed widespread poverty and was shocked to learn that many poor communities on both sides of the border lacked clean water or sanitation.
Moved by these deplorable conditions, Malissa began working with corporate clients, socially committed foundations such as Ford and Carnegie, and local community-based groups to develop protective clean water and environmental standards and to structure financing options to build water treatment plants. Out of these initial alliances, Malissa helped to create bi-national, sister-city organizations made up of a cross-section of academics, activists, foundations, government officials and scientists to work on solving the ecological, public health and poverty problems along the border. These early sister-city groupings ultimately evolved into the Border Environment Cooperation Commission, part of the North American Free Trade Agreements.
Malissa learned first hand that it takes a wide range of interests to solve complex environmental, public health and safety problems, and that stereotypical perceptions are a big obstacle to progress: the tendency for environmentalists to see the private sector as only interested in profits or, conversely, for business people to see environmentalists as invariably unreasonable.
What was missing (and still is, Malissa believes) was an institutional catalyst for change – an organization that could provide leadership and harness the resources and funding necessary to create and maintain effective, long-term working partnerships — partnerships built on mutual understanding, respect, and a shared commitment to identifying achievable solutions that are environmentally and economically sound and equitable. Such an institution could sponsor research conducted by respected experts, enlist broad input from affected parties, and serve as a consistent, credible watchdog to ensure a degree of accountability in decision makers. Although yet to be fully realized, this is the vision that continues to guide Malissa’s work as president of CURE.
As Malissa gained recognition as an environmental expert, she was appointed to several California gubernatorial commissions including the Base Reuse and Alignment Commission, focused on tackling the redevelopment of closed military bases; the Flood Plain Management Task Force, formed after the 1997 floods to develop programs for reducing damage in the agricultural lands of central California; and the Colorado River Board, the entity responsible for negotiating on behalf of California with other users of the Colorado River’s water – the states of Wyoming, Colorado, Utah, New Mexico, Nevada, Arizona, and the nation of Mexico.
Malissa’s appointment to the Colorado River Board came at a pivotal time. After a century of massive population growth, by the mid-1980s state lawmakers were finally facing the reality that California was overusing its allotment of Colorado River water, and considering solutions. California had been entitled to 4.4 million acre-feet of water per year. It was using 5.3 million acre-feet. When Gov. Wilson appointed Malissa to the Colorado River Board in 1997, the Board was in the midst of negotiating details of what would become a landmark agreement to bring California into compliance with its federally allotted portion of Colorado River water.Instead of holding open hearings to address a range of alternatives to reduce California’s over reliance on the river, a decision was made that the water-rich Imperial Valley should sell and transfer a large quantity of its water to San Diego, while also reducing its own water use through on-farm conservation, the fallowing of agricultural fields, and
encasing in concrete its main water conveyance channel from the Colorado, the All American Canal. This deal, ultimately enacted in 2003, was called the Quantification Settlement Agreement (“QSA”) for the Colorado River.
Malissa’s five years as a public member of the Colorado River Board were a tremendous education in the vicissitudes of high-level political battles over Southern California’s water needs. They also gave her the impetus to embark on her own independent advocacy and legal work on trans-boundary water and environmental issues, as well as on the economic and environmental consequences of the QSA on the Imperial Valley.
Malissa witnessed up close how powerful water interests and government decision-makers could ignore with virtual impunity the long-range environmental and economic impacts of their decisions. Except for Malissa and one other member representing the general public, the Board was comprised of the general managers of the major California water agencies. Malissa learned that when it came to the QSA negotiations, the Board maintained a closed-door policy that succeeded in keeping out key public interest advocates, mainstream environmental organizations, and any other meaningful opposition.
Witness to Water Wheeling & Dealing
Malissa saw that the Board, driven by political pressure from high paid lobbyists, and by a desire for the most efficient resolution to the problem of overreliance on the Colorado, willfully ignored or downplayed likely long-range economic and environmental impacts to communities in the
Imperial, Coachella and Mexicali Valleys.
The deal eventually reached avoided taking a hard look at devastating effects on the Salton Sea – effects that will have severe repercussions not just for wildlife, but for all the humans who live nearby. The Salton Sea is one of the few remaining stops on the Pacific flyway, the major north-south travel route for two-thirds of America’s migratory birds.
The QSA will reduce water flows to the Sea to a trickle; without a restoration plan, the Sea’s ecosystem will collapse – a disaster for the migratory and resident birds as well as the fish and invertebrates that live in the Sea.
In a torrent of cascading effects, the reduced inflows of water will expose thousands of acres of new shoreline; this ultra fine dust laden with pesticide residues from a half-century of agricultural runoff in turn will cause increased air pollution in an area already enduring frequent dust storms and the highest childhood asthma rate in the state.
As one of the Board’s only two public members representing the citizens of California, Malissa consistently questioned the Board’s short-sighted approach, repeatedly urging the power brokers to address and find effective ways to mitigate the destruction the QSA would likely wreak on the economic base and environment of the Coachella, Imperial and Mexicali Valleys.
When the Board formally approved the QSA in 2002, Malissa resigned and began an effort to stop the water deal until its economic and environmental impacts are fully mitigated.
Challenging the QSA
For the last decade, much of Malissa’s work as an environmental activist has been focused on advocacy and litigation work related to the long-term repercussions of the historic QSA agreement. Both in court and in the public policy arena, she has advocated for more transparency, due process, public participation, foresight and accountability in decision-making.
She has participated in numerous lawsuits to overturn the QSA. In addition, through CURE, Malissa spearheaded a multinational effort to challenge the decision to cement the All-American Canal, and she continues to represent landowners and farmers along the Salton Sea.
Because she feels strongly that the Imperial Valley’s long-term’s livability and its economic viability turn on whether and how the QSA is implemented, Malissa undertook a legal strategy that sought to invalidate the deal. She formed an alliance with an Imperial farming company that is not necessarily adverse to the QSA, per se, but fears property values will plummet when the Salton Sea further declines and air pollution rises as a result of the water diversions.
In an effort to protect the Valley, from 2005 to 2008, Malissa frequently found herself in court arguing against IID’s lawyers to overturn the flawed water deal. In late 2009, Malissa obtained a judgment invalidating the water deal; the judge found that the QSA was void because the State of California had unconstitutionally agreed to pay for unlimited costs to remediate damage to the Salton Sea, essentially writing a “blank check.” Estimated costs to restore the damaged Sea range from $178 million to $9 billion, which the legislature never appropriated.
After the 2009 ruling, Malissa was quoted as saying, “The QSA was a rushed deal cram-down that didn’t consider or try to prevent serious environmental and health impacts. Without mitigation, the Salton Sea will dry up and become a toxic dust bowl affecting people from Palm Springs to the Mexican border – it could easily become the new Owens Valley. Today’s ruling gives the state and the local agencies a new chance to make things right, both for taxpayers and for the people of the Coachella and Imperial Valleys.” Unfortunately, eager to prop up the water deal regardless of the Salton Sea, the water entities (funded by millions of taxpayer dollars) passed up the opportunity to rethink the original deal and appealed.
In 2010, the California Court of Appeal reversed the 2009 win. Despite a petition to the California and United States Supreme Courts, the case was remanded for a new trial in November 2012. In July 2013, the trial court validated the QSA for the first time – a decade after the initial deal was signed. In the interim, even the Imperial Irrigation District – plaintiff in the litigation – has acknowledged Malissa’s concerns about the decline of the Salton Sea and is now struggling with how to address the environmental impacts.
Deer Creek: Fighting for Accountability
Malissa’s life and career path changed dramatically when she and her family became engaged in fighting dangerous developments in California’s flood-prone San Gabriel Mountains. Malissa founded CURE during an arduous and protracted struggle over a planned housing tract near the Deer Creek flood control basin. (For a full account of this battle, see History.
As documented in a groundbreaking report by the Center for Governmental Studies entitled Alluvial Amnesia: How Officials Imperil Communities by Downplaying Flood Risks, the work of Malissa and Marylinda McKeith was instrumental in exposing a lack of transparency and accountability among the local, state and federal government officials whose decisions enabled the housing development to be built.
As with the Colorado River Board, Malissa’s experience with Deer Creek shined a harsh light on the ways powerful interests, public corruption, and a lack of community watchdogs can lead to short-sighted, unwise decisions with the potential for grave environmental and safety consequences. As discussed elsewhere, those efforts to prevent massive life threatening floods in increasingly urbanized areas continue.
Malissa’s nearly 25 years of environmental work, both as litigator and advocate, give her unique insight into the workings of the courts, the private sector, the government, and the environmental community. This multi-sided, multi-layered perspective helps to position CURE to become the institution Malissa first envisioned in the early years of her career.