The Port of Los Angeles meets the Pacific Ocean waters at sunrise (Pete)
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 (“Port”), 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 (“project”).
In 2005, the Port staff issued an initial study and NOP and, later, a supplemental NOP. In 2011, they released a draft Environmental Impact Report (“EIR”) for the project. In response to public comment, the Port staff 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 for writ of mandate were filed challenging the appeal. The Attorney General intervened on one of the seven. The petitioners were consolidated and transferred to Contra Costa Superior Court. In March 2016, the court set aside the certification of the FEIR and project approval. Specifically, the court found the FEIR project description and analysis of growth inducing impacts cumulative impacts, noise, traffic, air quality, greenhouse gas emissions, and mitigation measures were inadequate.
The First District Court of Appeal first addressed the Attorney General’s intervention. Appellants alleged the Attorney General failed to abide exhaustion requirements because he did not raise the issues in the administrative hearing that he brought in the intervening action. Indeed, no party had brought the claims. The Court found that neither a plain reading of Public Resources Code section 21177’s exhaustion requirements nor the legislative history supported applying the requirements of Section 21177 to the Attorney General. The Court found the Attorney General need not be a party in the administrative hearings (Pub. Res. Code, § 21177, subd. (d)) nor is limited to raising issues raised during the administrative proceedings (Ibid.) because he is specifically exempt from both identity and issue exhaustion requirements.
The Court next considered the adequacy of the project description. The Court agreed with the trial court that the FEIR project description was sufficient because it was not “misleading or inaccurate.” Unlike San Juaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, the project description at issue in this case did not send any “conflicting signals to decision makers about the nature and scope of the project” as no part of the FEIR suggested the overall rail capacity would remain unchanged.
The Court then addressed claims the FEIR failed to address indirect physical changes to the original off-dock railyards. CEQA requires consideration of all “reasonably foreseeable” indirect environmental effects. Here, the proposed near-dock site would increase the cargo capacity of the Port but this would not translate into an increase in the demand or volume of cargo. As a result, the project delayed the need for the planned expansions of the off-dock railyard and environmental effects thereof. Therefore, the Court found this analysis was adequate.
However, the Court upheld the conclusion of the trial court that the FEIR failed to adequately inform decision makers and neighbors about the concentration of pollutants in the project vicinity. Despite Appellant’s claim that it 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 frequency of significant concentration occurrences. 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., the duration of the worst case scenario.
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 was sufficient, the discussion of 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 bring ambient air pollutant concentrations and cumulative impacts analysis 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.
An EIR must 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.