Nrdc v. City of Los Angeles

• Citation: 126 Cal.Rptr.2d 615,103 Cal.App.4th 268
• Decision Date: 30 October 2002
• Docket Number: No. B159157.,B159157.
• Court: California Court of Appeals
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

126 Cal.Rptr.2d 615

103 Cal.App.4th 268

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

No. B159157.

Court of Appeal, Second District, Division 4.

October 30, 2002.

Rehearing Denied November 18, 2002.

Review Denied December 18, 2002.

Roger Beers, Oakland; Jan Chatten-Brown and Douglas P. Carstens, Los Angeles; Gail Ruderman Feuer and Julie Masters, Los Angeles, CA, for Plaintiffs and Appellants.

Rockard J. Delgadillo, Richard M. Helgeson, William L. Waterhouse, Los Angeles; Morrison & Foerster, Los Angeles, Michael H. Zischke, Scott B. Birkey and Peter Hsiao, Los Angeles, for Defendants and Respondents.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Theodora P. Berger, Senior Assistant Attorney General, Craig C. Thompson and Susan L. Durbin, Deputy Attorneys General, for Amicus Curiae State of California on behalf of plaintiffs and appellants.

HASTINGS, J.

This case involves construction of a container terminal for the China Shipping Holding Co. (China Shipping), which we reference as the China Shipping project, or Project. The China Shipping project is the subject of a lease/permit entered into between China Shipping and the City of Los Angeles (City) on May 8, 2001. The Project contemplates three phases of construction for which the Port of Los Angeles granted a coastal development permit on October 10, 2001.

The China Shipping project was challenged by filing of a petition for writ of mandate in the Los Angeles County superior court asserting that the Project was violative of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA)).¹ The challengers are two nonprofit environmental groups, the Natural Resources Defense Council, Inc. (NRDC) and Coalition for Clean Air, Inc., and two homeowners associations, the San Pedro and Peninsula Homeowners' Coalition and San Pedro Peninsula Homeowners United, Inc. (collectively appellants). Appellants appeal from denial of their petition contending that the City violated CEQA by failing to prepare a separate environmental impact report (EIR) addressing all three phases of the Project before entering into the lease/permit with China Shipping. As a back-up argument, appellants contend an EIR "tiered" from a 1997 "program" EIR prepared by the City should have been prepared addressing all three phases of the Project.

The City responds that the China Shipping project falls within the scope of the original 1997 program EIR and a subsequent environmental impact statement/EIR (SEIS/SEIR) completed in September 2000.

We have reviewed the administrative record, the record from the trial court proceedings, and briefing by the parties, including an amicus brief filed by the California Attorney General supporting appellants' position. We conclude that the City did fail to follow the dictates of CEQA and we reverse the trial court judgment. We remand with directions that the trial court order the City to prepare a project-specific EIR that covers all three phases of the Project. We also direct the trial court to issue an injunction consistent with a stay we have issued precluding further construction or operation of the Project pending completion of the environmental review process.

An excerpt from the "Introduction" of the amicus brief filed by the Attorney General provides a succinct statement why CEQA was violated:

"This case goes to the first principles of CEQA. The CEQA process is intended to be a careful examination, fully open to the public, of the environmental consequences of a given project, covering the entire project, from start to finish. This examination is intended to provide the fullest information reasonably available upon which the decision makers and the public they serve can rely in determining whether or not to start the project at all, not merely to decide whether to finish it. The EIR is intended to furnish both the road map and the environmental price tag for a project, so that the decision maker and the public both know, before the journey begins, just where the journey will lead, and how much they—and the environment—will have to give up in order to take that journey. As our Supreme Court said in Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 [118 Cal.Rptr. 249, 529 P.2d 1017], '[t]he purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind.²

"Here, the Port and the City have reduced CEQA to a process whose result will be largely to generate paper, to produce an EIR that describes a journey whose destination is already predetermined and contractually committed to before the public has any chance to see either the road map or the full price tag. [The City and Port] have segmented the project into three phases and are in the process of preparing an EIR for Phases II and III separately from Phase I, while engaged in building Phase I during the course of litigation. However, prior to the EIR for Phases II and III being complete, before a draft is even finished or available to the public, the City and the Port have committed themselves to all Phases of the China Shipping project, by approving the lease and the terms of the lease that call for construction of the entire project. They have signed this legally binding lease for the entire project before completing the CEQA process for two of its three Phases. Under the statute's plain language, the Guidelines adopted by the Resources Agency and binding on the City and the Port, and a long line of cases covering decades of CEQA enforcement, this is segmentation of the project and a per se violation of the statute." (Amicus Brief of the State of California, ex rel. Attorney General Bill Lockyer in Support of Appellants, pp. 3-4.)

FACTS

1997 Program EIR

In 1997 the Los Angeles Harbor Department (LAHD), as lead agency, completed a program EIR for what was described as the West Basin Transportation Improvements Program (WBTIP) for the Port of Los Angeles. The overall goal of the WBTIP was to improve containerized cargo handling and the overall operating "efficiency of West Basin container terminals." The area that was the subject of the EIR was divided into Berths 97-109, Berths 121-131, Berths 136-139 and Berths 142-147.

The WBTIP was described in the EIR as being initiated "to investigate optimization measures given that a number of changes are already in progress." The changes included relocation of American President Lines from Berths 121-126 to Terminal Island by early 1997, and the West Basin Widening Project (WBWP) to improve vessel safety in the West Basin and to provide potential for a new Berth, 97-98, capable of accommodating the largest of container vessels. A related project was described as the Harry Bridges Boulevard Project affording opportunity for an improved road and rail system to connect the berth and backland areas of the West Basin to the proposed Alameda Corridor. It included grade separation projects to eliminate vehicle-rail conflicts and an access route for trucks within the Port area to connect to the Alameda Corridor and the freeway system.

The EIR predicted that containerized cargo transport through the Port of Los Angeles would more than double by the year 2020 and that actual increases had greatly exceeded forecasts. It provided: "To meet this demand the LAHD has embarked on several major development programs to (1) optimize existing cargo handling capability on existing Port lands, (2) create additional lands and build new marine terminals through landfill development, (3) facilitate cargo movement by improving ship channels and landside transportation ... to optimize container transport capabilities, and (4) to optimize transportation infrastructure identified in the Knoll Hill EIR (LAHD 1978) and the Harry Bridges Boulevard Project (LAHD 1994)."

The 1997 EIR contemplated two phases of construction. Phase I involved construction of a railyard at Berths 97-109, two lead tracks and a railyard access roadway at Berths 121-131, and one lead track at Berths 136-139. Berths 97-109 were to be improved by construction of new entrance gate facilities and a new 1,000-foot wharf at Berths 98-100. There was also to be realignment, extension and filling over a storm drain in the western portion of the project area to provide additional space for a new access roadway alongside the West Basin railyard. Berths 121-126 and 127-131 were to be consolidated into one large terminal so that the wharf could accommodate larger ships either by reconstructing 2,000 feet of existing wharf and constructing 1,000 feet of new wharf to the north of existing wharves, or by constructing 1,000 feet of new wharf to the south at Berths 120-121. Adjacent portions of the channel would be dredged to increase depth from approximately 40 feet to 50 feet. There would also be construction of a grade separation at Neptune Avenue adjacent to Berths 136-139 and 142-147 and relocation of the entrance gates at each terminal. Berths 142-147 would be converted into a container terminal, and backland storage would be expanded by bringing Berth 147 up to grade with Berths 142-146 and paving, removing existing railyard trackage from Pier A and paving as needed, and increasing available spaces at Berths 153-155 by demolishing one transit shed and part of another and paving as needed.

Specifically, with regard to Berths 97-109, the EIR provided: "Completion of the West Basin Widening Project in 1996 will provide the Berths 97-109 area with adequate channel depth to serve modern vessels. The proposed project would include a new single-berth wharf at Berths 98-100. The new wharf would measure approximately 300 meters (1,000 feet) in length. Equipment and infrastructure would be added to ensure efficient movement of cargo. Improvements required to operate the terminal...