City of Long Beach v. City of L. A.

• Decision Date: 12 January 2018
• Docket Number: A148993
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF LONG BEACH et al., Plaintiffs and Respondents; Xavier Becerra, as Attorney General, etc., Intervener and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants; Bnsf Railway Company, Real Party in Interest and Appellant.

19 Cal.App.5th 465

228 Cal.Rptr.3d 23

CITY OF LONG BEACH et al., Plaintiffs and Respondents;Xavier Becerra, as Attorney General, etc., Intervener and Respondent,

v. CITY OF LOS ANGELES et al., Defendants and Appellants;Bnsf Railway Company, Real Party in Interest and Appellant.

A148993

Court of Appeal, First District, Division 3, California.

Filed January 12, 2018

Certified for Partial Publication.^*

Counsel for defendants and appellants: Office of the City Attorney of Los Angeles, Michael N. Feuer, Janna B. Sidley, Joy M. Crose, The Sohagi Law Group, Margaret M. Sohagi

Counsel for real party in interest and appellant: Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Kahn A. Scolnick, Los Angeles, and Daniel M. Kolkey, San Francisco, Munger, Tolles & Olson, Benjamin J. Horwich, and Usha C. Vance, San Francisco, Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond, Los Angeles, and Peter S. Hayes, Oakland

Counsel for amicus curiae on behalf of appellants: Klapach & Klapach and Joseph S. Klapach, Beverly Hills for The Los Angeles Coalition for the Economy & Jobs, Reed Smith LLP, Dennis Peter Maio, San Francisco for Regents of the University of California, Pillsbury Winthrop Shaw Pittman, Mark E. Elliott, Los Angeles and Kevin M. Fong, San Francisco for Association of American Railroads, UCLA School of Law, Sean B. Hecht, Los Angeles, and Julia Forgie for California Communities Against Toxics; California Safe Schools; Communities for a Better Environment; Del Amo Action Committee; and Mothers of East Los Angeles; NAACP Wilmington-San Pedro

Counsel for plaintiffs and respondents: Shute, Mihaly & Weinber, Rachel B. Hooper, Winter King, and Susannah T. French, San Francisco, Daniel P. Selmi, Los Angeles, Charles Parkin, City Attorney and Michael J. Mais, Assistant City Attorney for City of Long Beach, Kurt R. Wiese, General Counsel, Barbara Baird, Chief Deputy Counsel, Veera Tyagi, Principal Deputy District Counsel, and Mary J. Reichert, Senior Deputy District Counsel for South Coast Air Quality Management District, David R. Pettit, Melissa Lin Perrella, Morgan Wyenn, and Ramya Sivasubramanian, Santa Monica for East Yard Communities for Environmental Justice; Coalition for Clean Air; Century Villages at Cabrillo; and Natural Resources Defense Council, Inc., Johnson, Smith & Foy, Abigail A. Smith and Kimberly A. Foy, Cardiff for Coalition for a Safe Environment; Apostolic Faith Center; and Community Dreams; California Kids IAQ, Chatten-Brown & Carstens, Douglas P. Carstens, Santa Monica and Michelle Black, Hermosa Beach for Long Beach Unified School District, Peterson Law Group, John S. Peterson and Stacy W. Thomsen, Irvine for Fast Lane Transportation, Inc.; California Cartage Company, Inc.; Three Rivers Trucking, Inc.; and San Pedro Forklift, Inc.

Counsel for intervener and respondent: Xavier Becerra, Attorney General, Sally Magnani, Senior Assistant Attorney General, Sarah E. Morrison, Supervising Deputy Attorney General, Catherine M. Wieman and Brian J. Bilford, Deputy Attorneys General

Pollak, Acting P.J.Defendants City of Los Angeles et al.¹ and real party in interest BNSF Railway Company (BNSF) appeal a judgment granting consolidated petitions by government and public interest entities² to set aside certification of the final environmental impact report (FEIR) relating to, and approval of, the proposed construction by BNSF of a new railyard approximately four miles from the Port of Los Angeles.³ Environmental analysis of the project dates back to at least 2005. The administrative record exceeds 200,000 pages, the FEIR exceeds 5,000 pages, and the trial court's opinions dealing with the multitude of issues raised below exceed 200 pages.

Appellants challenge the trial court's conclusion that the FEIR is deficient because it fails to analyze the impact of rendering capacity at BNSF's existing Hobart yard in the City of Commerce, some 24 miles from the port, available to handle additional traffic, arguing that the project description in the FEIR is misleading and that the FEIR fails to adequately analyze the indirect and growth-inducing impacts of the project. Appellants also dispute the trial court's conclusions that the analysis of the project's impacts on noise, traffic, air quality and greenhouse gas emissions is inadequate. Preliminarily, appellants also contend the trial court erred in concluding that the Attorney General, who intervened in the petition filed by the City of Long Beach, was entitled to assert objections to the sufficiency of the FEIR that were not raised by any party in the administrative proceedings.

We conclude that the exhaustion requirement that generally apply to parties contesting the adequacy of an environmental impact report do not apply to the Attorney General and that the FEIR fails to adequately consider air quality impacts of the project, particularly impacts to ambient air pollutant concentrations and cumulative impacts of such pollutant concentrations. With respect to all other claimed deficiencies, we conclude that the analysis in the FEIR satisfies the requirements of the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ).⁴

Factual and Procedural History

Together, the Ports of Long Beach and Los Angeles (collectively ports) handle up to 64 percent of all oceanic shipping on the West Coast and about 35 percent of such shipping in the United States. As described in the FEIR, "The majority of goods coming into the ports arrive in shipping containers transported on container ships. Once the containers have been off-loaded from ships onto a marine terminal, they are sorted based on destination and transported out of the terminal by truck or train. Containers may be placed on trains inside the terminal (on-dock rail), they may be loaded onto truck chassis (trailers designed to hold containers) to be hauled to their final destination, or they may be loaded onto truck chassis to be drayed to a railyard outside the terminal (near-dock or off-dock rail)."

As of 2008, there were nine operating "on-dock railyards" at the ports. "Typically, trains built on-dock consist of railcars all bound for the same destination, although exceptions do occur. Most cargo that cannot fill a single-destination train on-dock is drayed to an off-dock or near-dock railyard to be combined with cargo from other marine terminals headed for the same destination because those railyard facilities can provide space to hold containers from multiple terminals and assemble them into blocks for common destinations." "Containers handled at the on-dock railyards leave the port area via the Alameda Corridor, a 20-mile long, multiple-track rail system with no at-grade (i.e. street level) crossings that links the rail facilities of the ports with the transcontinental rail network ... near downtown Los Angeles."

Union Pacific operates the only "near-dock railyard" presently servicing the ports. Union Pacific's near-dock facility is approximately five miles north of the ports. Containers from the ports are transported to the near-dock railyard via trucks on local roads. Trains departing the near-dock railyard utilize the "Alameda Corridor" to connect with the transcontinental rail network.

Currently, there are two "off-dock railyards" that handle the majority of containers from the ports: BNSF's Hobart yard and Union Pacific's East Los Angeles yard. Both railyards are located near downtown Los Angeles, approximately 24 miles north of the ports. Containers are transported by truck, generally via the I-710 freeway, from the ports to the off-dock railyards.

In September 2005, the harbor department released a notice of preparation and initial study for BNSF's proposal to construct a 153-acre near-dock railyard approximately four miles from the ports. The proposed project is referred to as the Southern California International Gateway Project or "SCIG." On October 31, 2005, a supplemental notice of preparation was issued.

Nearly six years later, in September 2011, the harbor department released a draft environmental impact report (DEIR) for the project. Based on comments received during the public comment period, the harbor department revised major portions of the DEIR and on September 27, 2012, the harbor department released a recirculated DEIR (RDEIR) for a 45-day public review period.

On February 22, 2013, the harbor department issued the FEIR. The FEIR describes the proposed project as consisting of "the construction and operation of a new near-dock intermodal rail facility by BNSF that would handle containerized cargo transported through the ports."⁵ The project would have the capacity to handle an estimated 1.5 million intermodal containers per year at full operation and would generate approximately 2 million truck trips between the facility and port terminals per year.⁶ "The primary objective and fundamental purpose of the proposed project is to provide an additional near-dock intermodal rail facility serving the San Pedro Bay Port marine terminals that would meet current and anticipated containerized cargo demands, provide shippers with comparable intermodal options, incorporate advanced environmental controls, and help convert existing and future truck transport into rail transport, thereby providing air quality and transportation benefits." The FEIR explains, "The need for additional rail facilities to support current and expected cargo volumes, particularly intermodal container cargo was identified in several recent studies. As discussed in those studies, even after maximizing the potential on-dock rail yards, the demand for intermodal rail service creates a shortfall in railyard capacity. Those studies specifically identified a need for additional near-dock intermodal capacity to complement and supplement existing, planned, and potential on-dock facilities."

At present, BNSF processes intermodal, transloaded and domestic cargo at the Hobart yard. The FEIR indicates that upon...