SCIG Railyard Trial Resurrects Old Concerns
By Paul Rosenberg, Senior Editor
Despite more than a decade of welcome environmental progress by local ports, haunting echoes of the China Shipping lawsuit hung in the air on Nov. 16 and 17. Judge Barry P. Goode held a hearing on a lawsuit challenging the Port of Los Angeles and City of Los Angeles and the BNSF railroad over the planned Southern California International Gateway railyard.
As with the China Shipping case, plaintiffs charge that the SCIG railyard was approved in violation of the California Environmental Quality Act, as well as three other similar, central failings: 1) SCIG was allegedly defined improperly as a replacement for BNSF’s Hobart yards in East Los Angeles, rather than an expansion of BNSF’s processing capacity; 2) SCIG’s impacts allegedly were not properly assessed; 3) The correct public process was not followed. A civil rights violation charge was also included—that the project disproportionately impacts communities of color.
“The EIR’s most troubling deficiency is that it systematically understates the Project’s environmental impacts.” the plaintiffs argued in their opening brief. “First, it presents an artificially narrow description of the Project by never disclosing that SCIG will create new capacity for Port-related cargo….The EIR defines the Project as a near-dock railyard allowing BNSF to handle 1.5 million containers per year. It then claims that the 1.5 million containers handled at SCIG will simply replace an equal number of containers that would otherwise be handled at BNSF’s existing Hobart/Commerce Railyard (‘Hobart’), which is located 24 miles from the Port. Because SCIG is located four miles from the Port, the EIR claims that Project will actually benefit the environment.”
“This characterization of the Project is fundamentally inaccurate,” the brief continues. “The record shows that rather than replacing Hobart’s capacity, SCIG will add to it, thereby greatly expanding BNSF’s and the Port’s ability to handle cargo. The record also shows that Hobart will not reduce its rail operations when SCIG commences operation. Indeed, one of the Project’s core purposes is to facilitate cargo growth at the Port so that it will remain competitive with other ports.”
What’s more, “The EIR also posits a baseline for its evaluation of environmental impacts that allows SCIG to claim credit for improvements in air quality that have nothing to do with the Project,” the brief explains. “Thus, while future NOx emissions from trucks will decrease due to state and federal regulations, the EIR frames its analysis to suggest that the Project is responsible for the improvement. CEQA forbids such a misleading analysis.”
“We remain very concerned that the Port of Los Angeles hasn’t done nearly enough to reduce the impacts on the local community,” said Joe Lyou, CEO of the Coalition for Clean Air, one of the wide range of plaintiffs, stretching from some of the state’s poorest communities all the way up to the state attorney general. Both the City of Long Beach and its school system joined the suit, as did the Air Quality Management District, the first time it has ever sued a government entity in a CEQA case. This unprecedented range of parties gave the case a much higher profile than China Shipping originally enjoyed.
“BNSF and the Port of LA took a beating,” said Jesse Marquez, executive director of Communities for a Safe Environment, a plaintiffs represented by the Natural Resources Defense Council. “They were a nervous wreck.”
“There was a lot of inconsistency in the discussion,” added Jan Victor Andasan, an organizer with East Yards Communities for Environmental Justice, another NRDC plaintiff. “Some of the arguments that the BNSF and the Port of LA lawyers shared, the judge would question it, and it didn’t make sense.”
Goode, who has taught environmental law, took the unusual step of generating a long list of detailed questions for the attorneys on both sides, rather than letting the back-and-forth arguments of each side structure the hearing. something no one involved had ever seen before.
“I have never been in another CEQA court case where the judge had a long list of questions he wanted to have answered,” Marquez said. “It was very good, because he was trying to search out the truth in everything.”
“Of all the many petitioner lawyers working on this case, none of us had ever experienced a judge giving this much time for oral arguments and hearings, and for preparing such detailed questions,” said Morgan Wyenn, an NRDC attorney on the case. “It was very impressive,” she said. “We actually had a call with the judge on Friday before the hearing where he spent the whole hour walking through most of the questions he had.”
Community members attending the trial got an additional sense of vindication from the process. “The judge’s questions mirrored a lot of some of the concerns the community had,” Andasan said. “Some of the questions community members have been trying to get answered since the inception of the project,” he said. “These are things we talk about with our neighbors. These are things we talk about with other community residents that we’re trying to engage.”
Marquez cited the transportation analysis as a key example of this. “When they did the port transportation analysis, basically, they looked at the truck routes. And the truck routes, the way they present it, goes from the Port of LA to the SCIG project and back.”
But that ignores all the necessary driving before and after a trucker drives his route, which Marquez had detailed in his public comment—getting the truck from its point of origin, fueling up, getting a chassis, picking up the container, going through inspection, perhaps even getting fumigated, before finally dropping off the container. Then, the container has to be picked up and taken to a storage yard. All these “auxiliary services” generate emissions, noise, etc., each with their own health impacts.
“They saw this as one of the key things to squash as much as possible,” Marquez said. “So what they were arguing was that, ‘Yes the members of the public submitted public comment that had those issues on it, but without the specific addresses of those locations, how can the port possibly go back and update their traffic study without specific data?’ And so the judge was looking at them, like, ‘Wait a minute! It’s impossible for the public to know where all these locations of these services are. The port is in the best position to be able to talk with its clients and tenants to determine what else they are doing.’”
This was typical of why Marquez said the port “took a beating.” But he also pointed to the noise analysis, in which the port used a method that averages noise levels, rather than measuring peak noise. When it comes to typical night-time noise from trucks and locomotives, “It can wake you up because it’s so loud,” Marquez said. Averaging it out over long stretches of quiet bears no resemblance to the real-life impacts.
Another result of the detailed questioning was that a second phase of the trial, dealing with questions of due process, which was held over to Jan. 28. Key concerns here involved the Los Angeles City Council review process, including Councilman Joe Buscaino’s high-profile advocacy for the SCIG, which should have required him to recuse himself from the vote. There were broader procedural failings as well, to be taken up in January. The judge has promised to rule within 90 days, but it’s unclear when that clock starts ticking. The civil rights claim will only be considered after that.
The port sought to put a positive spin on things, saying in a statement, “The City of Los Angeles, Port of Los Angeles and BNSF Railway were pleased to have the opportunity to address and refute the legal challenges by petitioners to the final Environmental Impact Report for the proposed SCIG intermodal railyard project at trial.” However, further comment in response to questions was refused.
In another parallel with China Shipping, the case appears to mark a potential policy watershed.
“This case sets the tone for environmental analysis for the ports in the future,” Wyenn said. “We’re really at an interesting crossroads in terms of advanced technology, awareness of the severe health impacts, leadership by the governor, and state of California, and the California Air Resources Board, and many other agencies to really transform the freight industry in California. This case is right in the middle of all that, and plays a huge role in what we can hope to see from that transformation in the future.”
As an example of how the port was out of step, the brief notes, “the EIR summarily dismisses all effective mitigation for the Project’s admittedly significant air quality impacts, including the Project’s exceedance of the nitrogen dioxide (‘NO2’) standard. The Air District implored the Port to adopt mitigation requiring the use of cleaner, ‘zero emission’ trucks and more ‘Tier 4’ locomotives by 2020—measures identified as essential in the Port’s own Strategic Plan and Clean Air Action Plan—but the agency refused.”
This points to one of the most perplexing aspects of the case. As mentioned at the beginning, both local ports have come a long way since the China Shipping settlement in 2003. They’ve made dramatic environmental improvements which have received national, even international recognition. And yet…
“I don’t understand why they’ve chosen to adhere to old ways of thinking in terms of EIR analysis and their relationship with the community and the state. I really don’t know,” Wyenn said. “There’s people at the port who really do want the Port of LA to be more of a leader, and yet it seems that there’s still a lot of foot-dragging.”
Given the past progress, “I really don’t know why they took the positions that they did on the SCIG, and why they haven’t just stopped the fight,” she said. “We’ve been fighting over the project for many years, and at any point the City of LA, the Port of LA could have just hit the pause button and say that they were wrong, and that they want to do better, and that they’re changing what they want to do with SCIG. But they haven’t done that. They’ve continued to fight it…. It honestly doesn’t make any sense to me.”
It seems like everyone from local residents to the AQMD to the Attorney General is equally as puzzled.