Document: AT&T Defendant's Supplemental Status Report
Filed: July 18, 2023
Case No.: 2:21-cv-00073-MCE-JDP
Context: Filed after Wall Street Journal investigation, before parties reached 2024 amended agreement
In July 2023, AT&T filed a status report that effectively reversed its position from the 2021 consent decree. Using Wall Street Journal reporting as justification, AT&T argued for preserving the status quo rather than removing cables, directly contradicting their previous agreement to remove them by November 1, 2021 - a deadline they had already missed by nearly two years.
The Original Timeline Failure: The 2021 consent decree established a clear timeline:
AT&T's Own Evidence of Delay: AT&T provided a detailed table showing they obtained all seven required permits by April 28, 2023:
| Agency | Approval Date |
|---|---|
| Lahontan Regional Water Quality Control Board | October 25, 2022 |
| Tahoe Regional Planning Agency | March 9, 2023 |
| California Department of Fish and Wildlife | March 20, 2023 |
| California Department of Parks and Recreation | March 24, 2023 |
| California State Lands Commission | April 3, 2023 |
| U.S. Army Corps of Engineers | April 12, 2023 |
| U.S. Forest Service | April 28, 2023 |
The Contractual Violation: By AT&T's own admission, they reached "an impasse with respect to the timing of the cable removal" and "the parties remain at an 'impasse' regarding removal of the cables at Lake Tahoe." The 2021 consent decree gave AT&T 90 days after receiving permits to remove the cables. With permits complete by April 28, 2023, removal should have occurred by July 27, 2023 - the exact date AT&T threatened to withdraw from the agreement.
2021 Position: AT&T "agreed to remove the cables as part of a voluntary resolution set forth in a Consent Decree simply to avoid the expense and burden of litigation."
2023 Reversal: AT&T now argues "the responsible course of action is to develop a further record rather than remove the Lake Tahoe cables and work cooperatively with regulators and other stakeholders on a risk assessment."
AT&T explicitly acknowledges this reversal: "Prior to the Journal's reporting, AT&T had every intention to remove the cables in Lake Tahoe consistent with the terms of the settlement. But the landscape has changed dramatically."
Analysis: This admission reveals that AT&T's commitment to the 2021 agreement was conditional and opportunistic. They were willing to remove cables when it served their litigation strategy, but abandoned that commitment when media attention made removal politically inconvenient.
No Lead Detection:
"Analytical results from lake water samples collected during the investigation, using the best available methodologies to achieve the lowest detection limits possible, were largely non-detect for lead, including in the samples collected nearest the subject cables (within approximately 4 inches)."
Background Levels Only:
"In the few collected samples where lead was detected, concentrations were very low (just above the method detection limit) and within the same range regardless of proximity to the subject cables. These results suggest the low lead concentrations detected during the field investigation are characteristic of background levels, not a release from the cables."
Lead Stability:
"Lead is a very stable metal. It has low corrosion rates in environmental conditions like those present in Lake Tahoe, which has cold, hard water. When exposed to the elements, lead naturally forms a 'protective layer' of insoluble compounds that guards against corrosion."
Settling and Dilution:
"Further, because lead is a heavy metal, any lead from limited leaching that may occur tends to settle out of the water—rather than dissolve into it. Lead tends to bond with organic matter in the sediment to form insoluble compounds that do not mix with water."
Lake Size Factor:
"In the context of Lake Tahoe, one of the largest lakes in the United States, what little lead from telecom cables that could potentially dissolve would be naturally diluted by the vast quantities of water in the lake (tens of trillions of gallons)."
AT&T states unequivocally: "any lead leaching from the cables in Lake Tahoe does not have a significant impact on public health or the environment."
Bias Claims: AT&T argues the Journal's testing "was not performed by disinterested, objective experts, but by individuals with clear agendas and conflicts of interest. Some are even the same individuals who prompted Plaintiff to file this lawsuit."
Funding Attack:
"Moreover, we now know that the sampling for the Journal's testing was both funded by the Environmental Defense Fund and targeted on sites the Journal believed were most likely to obtain the result it wanted: high lead levels."
Analysis: While conflicts of interest are legitimate concerns, AT&T fails to address the substance of the findings. They also ignore that their own testing was conducted by a consultant they hired, creating their own potential bias.
Sampling Technique: AT&T criticizes that samples were collected "1 cm away from the cables with a syringe, all without disturbing the cable or the surrounding sediment" and claims "water samples relied on by the Journal therefore likely included sediment and other particulate with lead."
Standards Comparison:
"The results of these unfiltered samples taken by divers from a lakebed near sediments also were improperly compared to drinking water standards, which apply to water coming out of a tap."
Analysis: These are technical disputes about methodology that could be resolved through peer review or independent testing, rather than justification for abandoning a legal agreement.
"As you know, the Consent Decree allows either party to terminate the agreement if the cables are not removed within 90 days after all regulatory approvals are obtained and no agreement exists on a specific removal date. The 90-day deadline is July 27."
"Although we are willing to continue to meet and confer before July 27, AT&T believes that we should agree to preserve the status quo so the safety of the cables may be fully adjudicated. If Plaintiff does not agree, AT&T anticipates exercising its contractual right to vacate the Consent Decree and resume this litigation."
Analysis: AT&T is using their own delay and non-performance as leverage to renegotiate the agreement. Having missed the original November 2021 deadline by nearly two years, they now threaten withdrawal unless they get more favorable terms.
Notably, even the Environmental Defense Fund - an organization that funded some of the testing AT&T criticizes - took a more measured approach than AT&T claims. AT&T quotes their letter to EPA recommending that the "EPA should assess the condition of the underwater cables to determine their condition, their current and anticipated releases to the environment, and the risks posed by their removal or leaving them in place."
Analysis: This recommendation for assessment does not constitute opposition to removal, but rather supports informed decision-making - something AT&T could have pursued while honoring their existing agreement.
AT&T spent nearly two years obtaining permits, then used media attention as justification to delay further, despite having agreed to a much shorter timeline.
AT&T touts their own testing while dismissing contrary evidence, rather than advocating for independent, peer-reviewed assessment.
In 2021, AT&T was willing to remove cables "simply to avoid the expense of litigation" despite believing they posed no risk. In 2023, they argue removal would be irresponsible without further study.
AT&T frames their withdrawal as responsible environmental stewardship, when their own documents show it's driven by litigation strategy and media management.
AT&T's 2023 status report reveals a company that viewed the 2021 consent decree as a temporary expedient rather than a binding commitment. When fulfilling that agreement became inconvenient due to public attention, they manufactured justifications for withdrawal based on the same media coverage they criticize as biased and unscientific.
Their technical arguments about lead safety may have merit, but using them to justify abandoning a legal agreement they voluntarily entered - after missing agreed-upon deadlines by nearly two years - demonstrates a pattern of strategic rather than principled decision-making.
The ultimate irony is that AT&T's own actions - the extensive delays and public withdrawal threats - likely contributed to the very media attention and regulatory scrutiny they sought to avoid.