Court Strikes Down BNSF Railyard Project
By Paul Rosenberg, Senior Editor
On March 30, Contra Costa County Superior Court Judge Barry P. Goode voided plans for BNSF’s off-port railyard, Southern California International Gateway, SCIG. His decision was based on violations of the California Environmental Quality Act.
The decision brought to a halt—at least for now—a project with a 50-year lease. The project has been in a formal planning process since September 2005. The decision brought to a halt—at least for now—a project with a 50-year lease and a formal planning process that goes back more than 10 years. But the fierce grass roots opposition BNSF faced every step of the way also has a long history. The judge’s ruling, which was announced shortly before Earth Day, validated a decades-long strategy of self-education and self-empowerment by low-income communities of color that echoed environmental justice struggles across the country and around the globe.
“This is a people’s victory,” said Jesse Marquez, executive director of the Coalition for a Safe Environment, a key community-based plaintiff organization. “This is a court victory that involves residents of the Harbor Area who 15, 20 years ago started to raise the red flag that there was a connection between port pollution and public health.”
“The project was literally the definition of environmental racism,” said Mark Lopez, executive director of East Yard Communities for Environmental Justice, another key plaintiff.
The eventual decision had been expected all along, he said.
“I think it’s very validating for our community leaders who [have] been active in this for so long,” Lopez said. “So, we’re very proud of the work that folks put in.”
“It’s a vindication that all the arguments we were making in the public policy arena really had substance behind them, and were justified, because the information and arguments we’re making were based on a clear understanding of the project,” East Yard Communities for Environmental Justice co-founder Angelo Logan said. “BNSF and the port were really spinning the project in public, and the court reviewed the information, and found that our claims were accurate.”
“Our prayers have been answered,” exclaimed Pastor Alfred Carrillo of the Wilmington Apostolic Faith Center. “As a pastor I have struggled for years on how to console my church members when they come to me crying about their children having to be rushed to the emergency room at hospital because their child could not breathe and was having a life threatening asthma attack.”
“We knew all along that they were misrepresenting the environmental impacts,” said Morgan Wyenn, a Natural Resources Defense Council lawyer. “We never had any doubt. The [environmental impact report] just really did not make sense in a lot of ways…. It’s great to know that all that hard work paid off, and that now there will be some changes by what the port does.”
The judge’s order voided key decisions by the Port of Los Angeles: its March 7, 2013 certification of the project’s environmental impact report, followed by its “Site Preparation and Access Agreement and Permit” with BNSF and by the Los Angeles City Council, and its May 8, 2013 approval of the port’s actions. Two other EIR-related documents approved by the port were also voided.
“We are disappointed,” both POLA and BNSF stated separately.
BNSF was disappointed, “because the decision appears to delay a nationally and regionally significant transportation infrastructure.”
The port stated that it was “disappointed with the court ruling that delays or deprives the region of many environmental benefits and both ports of Los Angeles and Long Beach of important rail infrastructure.”
But it was the very inadequacy of the plan’s environmental protections compared to harms that lay at the core of the ruling.
“There isn’t one public school or child care center in the harbor that can cope with the amount of air pollution from the ports, trucks and the railroad industry now,” California Kids IAQ Executive Director Drew Wood said. “How can we expect them to deal with hundreds of tons more of toxic air pollution annually from the BNSF SCIG Facility?”
In fact, Wood told Random Lengths that indoor air pollution—both in homes and schools—is the most overlooked threat of all.
“There isn’t one building [in] all of Southern California in the worst polluted areas that is properly dealt with,” he said.
The SCIG would only add to an already highly toxic environment.
“The whole area was an oil field a 100 years ago and then homes were built on that land,” Wood said. “So you have gases permeating to the surface, and into the homes, and buildings, and then you have the outside air to contend with as well.”
In short, children nearby the SCIG are already sorely in need of environmental protection—as they have been for generations. Responding to the judge’s decision, Los Angeles Area Chamber of Commerce President Gary Toebben called it “a body blow” to Southern California’s economy. But it’s the actual bodies of real children who would suffer even further, if the judge had not ruled as he did.
“The order makes it clear to me that especially when a facility is going to be built in an area that will impact so many lower income communities of color, and is right next to schools, and playgrounds, and daycare centers, that special effort really has to be made to analyze the health impacts of such a project,” said Andrea Hricko, USC professor of Clinical Preventive Medicine.
The off-dock railyard, four miles from the port, would have handled more than a million containers a year that are now trucked to its Hobart Yard facility in Commerce—25 miles away. The gains in time, efficiency and reduced air pollution would have been substantial, proponents argued. But from field hearings 10 years ago to the court proceedings just concluded, critics charged that the plan sacrificed the well-being of those vulnerable communities closest to SCIG, including school children and a homeless veterans service center, while improperly ignoring the full extent of its impacts to the region as whole. It also fails to ensure it would keep improving with new technology.
A key question was whether containers handled at SCIG would replace those at Hobart Yard, or be added to it. The EIR simply ignored any analysis of Hobart on the assumption of replacement only, much as the port has previously defined projects narrowly, even in piecemeal fashion, to avoid dealing with the full range of their impacts.
“They never really analyzed what was going to happen at Hobart,” Wyenn said. “They just said that other things might happen there, but they claimed those other things aren’t caused by the project… And the judge was like, ‘No! No! No! The fact that you have this extra space is because of the SCIG project and we need to analyze what would happen at the SCIG and what would happen at the Hobart Yard.’”
“I think the Hobart analysis was cheating, to get to a desired result, and the court called them on it,” NRDC senior attorney David Pettit added. “We told them back in 2005, ‘This thing needs to be built on dock,’ and if they had listened to us, it would be up and running right now.”
Whatever the motivation, ignoring Hobart violated CEQA. Relatedly, the EIR also ignored the “cumulative impacts” of SCIG along with another planned railyard nearby, Union Pacific’s Intermodal Container Transfer Facility —another CEQA violation. The EIR also fell short on specific issues of air quality impacts, greenhouse gases, noise impacts and transportation impacts.
One of two key air quality failings concerned a mitigation measure, MM AQ-9, “Periodic Review of New Technology and Regulations.” The purpose of such a measure is to ensure that newer, cleaner technology continues to replace older, more polluting systems. But the judge found that “as drafted, the measure has no real ability to require mitigation. It could leave outdated technology locked into a major project for half a century,” and thus found that “MM AQ-9 is inadequate as a mitigation measure.”
“We are pleased with the court’s decision today,” said William A. Burke, chairman of the South Coast Air Quality Management District Board. “Communities in the surrounding areas are already highly impacted by air pollution from the ports and other activities…. This is a public health victory for all the residents and others who go to school and work in these areas.”
This case marked the first time the AQMD had sued to block a project under CEQA. The California attorney general also intervened in the case, along with the City of Long Beach and its school district—an unprecedented alliance of public entities opposing such a project.
But the heart of the opposition came from residents in the communities and organizations that had formed to protect them. This represented the culmination of a decades-long process of community self-education and self-organization, Marquez pointed out.
“We were ground zero 15 years ago, 20 years ago,” Marquez said. “We didn’t have answers to many of these questions, in fact, at that time, we weren’t even sure what kind of questions we should ask.”
They didn’t even know the words to form the questions. In 2001, Marquez recalled, the port launched a proposal to build a wall 20-feet tall and 1.4-miles long in Wilmington. The purpose behind it was port expansion: a six lane diesel truck highway, a railroad track extension and expansion of the TraPac container terminal further into Wilmington. The community push-back immediately gave birth to Marquez’s organization and eventually resulted in the Wilmington Waterfront Park, instead of a long concrete wall. That same year also saw San Pedro home owners launch the China Shipping lawsuit, as well as the emergence of East Yards Communities for Environmental Justice. The Long Beach Alliance for Children With Asthma was also being formed, and a partnership between public health and environmental scientists at UCLA and USC, formed in the 1990s, began reaching out to work with community groups under the leadership of Andrea Hricko.
But it was the public relations firm that first pushed the wall proposal that introduced Marquez to the word “mitigation.” Once he learned its meaning, he eagerly advanced from simply objecting to project harms to proposing alternative solutions in ever-growing detail.
“My first public comment, was only 6 to 7 pages long, [but] when it comes to the BNSF SCIG project—now 15 years later—my public comments range from 30 to 50 pages long,” Marquez said.
And that was just the EIR.
“When it came to our presentation to the downtown city LA City Council, I submitted over 3,000 pages of documents to support our public comments, because we know if later on we were to file a lawsuit, having all these documents there, having all our detailed public comment submitted, they would help our case go forward,” Marquez said. “It’s a tribute to our communities and our environmental justice organizations, and other groups, where we do research, where now we are in a chess match. We can checkmate the port and almost everything that it’s proposing to do with a better proposal.”
Opposition to SCIG specifically started a decade ago.
“There was a lot of concern because of the location,” Lopez said. “If it was adjacent to schools, emergency housing for homeless veterans, parks, and other housing…. So community members spent a lot of time in our organization and others spent a lot of time building up an understanding of what the proposed project was, about the potential issues, the air quality impacts. And so, I think that something that probably isn’t really seen is the amount of community leadership that built up over the last decade.”
Thus, the whole movement has gone through a progression similar to what Marquez described—from objecting to harmful projects, to becoming advocates for specific clean technology alternatives, to pushing for systemic rethinking. Now, Lopez sees a real window of opportunity for the mayor and port executive director to break with the pattern of past mistakes that they had no role in creating.
“Hopefully they’re not invested in someone else’s mess,” Lopez said. “I think they’ve been very quick to distance themselves on the China Shipping issue [11 neglected mitigation measures], and say, ‘Oh you know, this was past leadership’s mistake.’ And so, we hope that they take the same approach on this project, saying, ‘This was past leadership’s mistake. Let’s get this right this time. Let’s look at community—focused partners and really get to work on this.’”
“The port really needs to figure out how it’s going to deal with both near dock and far-away container movement,” Pettit noted. “That’s implicated at China Shipping, as you know, because of the port’s failure to comply with the [liquified natural gas] mitigation measure, and now it’s directly implicated in SCIG, which also had an LNG requirement in it … I’m sure the folks at [Union Pacific] who want to expand the [Intermodal Container Transfer Facility] are also looking at that.
“My own view is that the days of transporting containers by diesel power from the port to near dock railyard, I think those days are over, as they should be…. And, the port and the city need to recognize that, and move to a zero-emission system to get boxes from the port to the nearby rail yards. And, that applies to China Shipping, and also to SCIG, and also to ICTF.”
Indeed, the entire state policy structure is moving toward a zero-emission freight system model, driven primarily by global warming concerns, but reinforced by public health and mortality impacts as well. Industry is fighting back, but their position is untenable, Marquez argues. This is because it’s built on lies that are being publicly exposed.
“When I took a tour of Europe, I went to the Port of Rotterdam and found out that for the last 80 years-plus they’ve always used electric trains there; so there was no train exhaust pollution coming out of electric trains there,” Marquez said. “But yet, the POLA, the Port of Long Beach and even representatives in different government agencies would tell us, ‘Oh, there’s no other alternative.’ Well, we began to realize they lied to us.”
On March 8, BNSF issued another statement blasting the decision, calling it “a major loss for both ports, the local community and the region,” but it was a claim without substance, as Andrea Hricko noted.
“BNSF is continuing to claim the same benefits of this project that they’ve been claiming for 10 years, but they can’t document those benefits,” Hricko said. “They cannot document that the air is going to be better. They cannot document that there’s going to be less traffic on the roads. And the judge is saying, ‘Your document isn’t able to show that and we need it to be re-analyzed.’”
What happens next will take time to unfold. There will be more proceedings before the final judgment is issued, after which an appeal may be filed within 60 days. But those who sued are hoping that a more thorough rethinking process takes hold instead, one that finally shifts into a more holistic, long-term perspective.
“If you look at China Shipping, SCIG and TraPac, they do look like they were planned by three different entities, without knowing that the others were there,” Pettit said. “It’s definitely a piecemeal approach and I think that that has hurt the port because they haven’t been thinking big picture about how to move the boxes when they show up on the docks.”
The need to refinance the Alameda Corridor, which we reported on in this past issue, is yet another consequence of this piecemeal pattern.
Pettit sees two major lessons for the port in all this.
“Lesson No. 1 is just be upfront in the environmental documents and if the project is going to cause problems, then confront them and figure out how to deal with them, rather than pretending they’re not there,” he said. “Secondly, is the vision problem, is looking ahead, and well, looking back at all the health problems the port has contributed to, and looking ahead to new technology…. It’s time to make a change. And I think the port leadership and the city need to step up and do that.”
“We’re looking forward to participating with the city and the port in a real comprehensive plan,” Logan said.
After more than a decade, community members can’t wait to get started.