In City of Long Beach v. City of L.A. (2018) 19 Cal.App. 5th 465, City of Los Angeles and real party in interest BNSF Railway Company (BSNF) (collectively “Appellants”) appealed a trial court’s judgement, which set aside certification of a final EIR approving BNSF’s railyard construction project. The First District Court of Appeals affirmed in part and remanded in part for further proceedings.
At the Port of Los Angeles, shipping containers are loaded to trains at railyard facilities for transport across the country. The Port is currently served by one “near-dock” railyard facility. Trucks take some containers to “off-dock” railyards, like BSNF’s current facility twenty-four miles from the Port. BSNF proposed a new 153-acre near-dock railyard approximately four miles from the Port, diverting traffic headed to the off-dock railyard and increasing the volume of cargo transported in the Port-railway interface.
In 2005, the harbor department issued an initial study and NOP and, later, a supplemental NOP. In 2011, the harbor department released a draft EIR for the project. In response to public comment, the harbor department revised major portions of the draft and released a revised draft EIR in September 2012 for 45-day public review. Thereafter, a final EIR (FEIR) was issued, identifying significant unavoidable environmental impacts on air quality, noise, GHG emissions, and traffic. Following public review, the board of harbor commissioners certified the FEIR and approved the project. The resolution was appealed to the Los Angeles City Council, which affirmed certification and approval of the project.
Seven consolidated petitions challenging the approval, one of which the Attorney General intervened on, were heard in Contra Costa Superior Court. In March 2016, the trial court found the FEIR deficient and issued a peremptory writ of mandate directing the City of Los Angeles to set aside its project approval and FEIR certification in order to comply with CEQA. Specifically, the project description, indirect impact analysis, and cumulative impacts considerations were inadequate as were the FEIR’s analysis of noise, traffic, air quality, and greenhouse gas emissions, even with mitigation measures.
The First District Court of Appeal first addressed the Attorney General’s intervention. Where appellants argued he failed to abide exhaustion requirements, the court affirmed neither a plain reading of Public Resources Code section 21177 nor lack of clarity in the legislative history supported that he is held to such requirements. Indeed, the court found the Attorney General need not be a party in the administrative hearings or renew an issue already brought in the hearings as he is specifically exempt from both identity and issue exhaustion.
Reviewing de novo, the court agreed with the trial court that the FEIR project description was sufficient where it was not “misleading or inaccurate.” Distinguishing from San Juaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, this project description did not send any conflicting signals like claiming it would not increase operations where it actually will.
The court then addressed claims the FEIR failed to address indirect physical changes to the original off-dock railyards, where use was to decrease. CEQA requires all “reasonably foreseeable” indirect environmental effects be considered. Here, the near-dock site would increase cargo capacity of the Port but would not translate into an increased demand and volume of cargo. Instead, cargo amounts were expected to grow steadily per year at the Port with or without the new near-dock site. Even so, the project delayed planned expansions of the off-dock railyard and environmental effects thereof. Therefore, the court reversed on this issue.
The critical point of the court’s holding, in agreement with the trial court, was the FEIR failed to adequately inform decision makers and neighbors about the concentration of pollutants in the project vicinity. Despite Appellant’s claim they performed worst-case-scenario analyses and disclosed air quality concentration impacts, the information was spread throughout the FEIR, never analyzed or discussed, and did not disclose the regularity of significant concentrations. The court stated that the FEIR was deficient for it did not disclose or estimate how frequently and for what length of time the level of particulate air pollution in the area would exceed the standard of significance—e.g., what the duration of the worst case discussed in the FEIR would be.
The court was careful to state it did not agree with the trial court’s determination that the composite emissions or the methodology was misleading, but the analysis was instead incomplete because a reader could not compare air pollution concentrations at any given point in time. The court determined that this deficiency rendered the public and decision makers unable to consider alternatives or mitigation measures, or balance competing considerations before adopting a statement of overriding considerations.
Further, the court held while the cumulative impact analysis of noncancerous health risks were sufficient, the cumulative air quality impacts failed to be “good faith and reasonable disclosure” for the same reasons detailed above. Finally, the court upheld the FEIR’s GHG analysis, noting that the project twenty miles closer to the ship yard would result in less emissions than not building the project at all.
The court concluded by affirming the trial court’s decisions to set aside certification of the FEIR and suspend project activities until respondents act to bring ambient air pollutant concentrations and cumulative impacts into CEQA compliance. The court reversed the trial court’s judgements on the GHG emissions, noise, transportation and cumulative impact (for noncancerous health risks only).
The Attorney General is exempt from CEQA identity and issue exhaustion requirements.
When certifying an EIR spanning many years of environmental analysis, it is important to display statistical and quantitative reports in a manner which can be understood and easily accessed by laypersons. Although the information may be present in documents, if it cannot be fairly compared and understood (here, it was spread throughout thousands of pages), it will likely not stand up to a CEQA challenge.