Saturday, September 19, 2020
Home News BNSF Railyard Project Appealed to State Supreme Court

BNSF Railyard Project Appealed to State Supreme Court

Major Breaks With Established Law Alleged

By Paul Rosenberg, Senior Editor

On Feb. 21, petitioners challenging BNSF’s railyard project in West Long Beach filed an appeal to the California State Supreme Court charging that an appeals court ruling represented a “subversive approach to CEQA,” the California Environmental Quality Act, by failing to assess the true impacts of growth on the project. Two other significant breaks from established CEQA law could set troubling precedents for future projects.

The environmental impact report (EIR) for the Southern California Intermodal Gateway, or SCIG, was approved by the Port of Los Angeles on March 7, 2013, and by the City Council on May 8, 2013. But it was challenged by an unprecedented alliance of plaintiffs—including the California Attorney General, the South Coast Air Quality Management District, the City of Long Beach and its school district, and nearby residents and environmental justice organizations—who successfully sued to have the EIR redone in a 200 page ruling handed down on March 30, 2016. AQMD has never been involved in such a suit before. Long Beach City Attorney Michael Mais told Random Lengths it was unusual, if not unprecedented, for Long Beach as well.

That ruling was partially reversed by an appeals court on Jan. 12, but the parties who brought the suit claimed that the ruling raised alarms that went far beyond just this specific case.

“The court’s Opinion not only creates a split in long-settled CEQA law, but also raises fundamental legal questions about public agencies’ duty to fully inform the public about a project’s environmental impacts,” the appeal said, adding elsewhere that the appeal court’s analysis represented a “subversive approach to CEQA.”

“We were pleased that the appellate court ruled in our favor regarding air quality impacts,” said Chris Eftychiou, spokesman for the Long Beach Unified School District, one of the plaintiffs in the case. “That aspect of the ruling alone was enough to prevent the project moving forward, so the appellate ruling was a victory for our school children,” he said. “The school district operates numerous schools adjacent to the proposed project site and its transportation corridor.”

But deeper problems remained, according to Ramya Sivasubramanian, an attorney with the Natural Resources Defense Council.

“On three issues, we felt that the Court of Appeals got wrong what the trial court had actually gotten right,” Sivasubramanian told Random Lengths. The issues involved traffic, noise levels, and the overall growth impacts. But each issue also involves a bizarre twisting, if not break, with existing law that would set troubling precedents for future projects and litigation.

On the traffic issues, she said “The EIR had what the other side also admits was missing data,” which was unheard of in itself. Yet, “Somehow, this missing data notwithstanding, they found that adding thousands of container trucks to a city street would not significantly impact the traffic on that street.”

The street, San Gabriel Avenue, has just two lanes. Daily truck traffic would reach approximately 2,771 trucks a day by 2035, so there was good reason to question the EIR’s missing data, but, “The Court of Appeals affirmed their conclusion by assuming that that missing data exists,” Sivasubramanian said, “and that the missing data actually supports this conclusion that thousands of trucks added to a small city street would have no significant impact on traffic there.”

In another twist, “The court further authorized the agency to correct their analysis, but affirmed the conclusion. So there’s actually no preceding in which the agency can later correct that.”

The handling of the noise issues was equally bizarre. The EIR adopted a specific standard from the Long Beach Noise Ordinance, known as Lmax, as its key threshold of significance. Anything over that would have to be mitigated. As the appeal notes, Lmax “is the most rigorous methodology for analyzing noise impacts because it assesses a project’s loudest sounds—day or night—rather than simply considering ‘average’ noise.”

“But, somehow, despite adopting that threshold, it later used a different … methodology for assessing the noise impacts,” Sivasubramanian explained. “So they’re really not doing what they said they were going to do.”

The appeal says, “clear guidance is needed from this Court that an EIR must apply its adopted thresholds and disclose and mitigate the significant impacts its analysis reveals.”

It seems surprising that this isn’t already settled law, but perhaps no one’s ever tried such a blatant bait-and-switch. “It’s certainly not something that I have ever seen,” Sivasubramanian said. “They selected the threshold and then didn’t really use it.”

But the issue of growth got even more bizarre, with an expansion of capacity presented as neutral, if not a reduction—since trucks will be driving fewer miles per container, by diverting them from BNSF’s existing Hobart railyard near Commerce.

“The EIR refuses to analyze any increase in capacity resulting from SCIG by playing a shell game with growth,” the appeal says. “It concedes that SCIG will create the capacity to handle 1.5 million cargo containers each year. But it defines this capacity as cargo already going to Hobart.”

While it’s arguable on a trip-by-truck trip basis, this ignores the fact that Hobart will still be there (and the 710 Freeway expansion is still being pursued, which will facilitate it). The appeal continues: “The EIR then dismisses the projected growth in cargo at Hobart (which will immediately refill) as caused by ‘market demand’—not SCIG—and thus exempt from CEQA review.”

However, Sivasubramanian explained, the opinion’s endorsement of the EIR’s ‘market demand’ excuse conflicts with CEQA’s most fundamental principles. All growth results from market forces, but it’s only when projects are approved through CEQA review that their impacts can be assessed and mitigated.

“You cannot get around analyzing the project just by claiming that the impacts are attributable to market demand or market forces,” Sivasubramanian said. SCIG doubles BNSF’s capacity, she pointed out,  “which obviously has an impact on market demand. That doubling of capacity means it needs to be analyzed.”

As explained in the appeal, “Even where it is unclear whether the approved level of development will actually materialize, CEQA requires lead agencies to analyze the full magnitude of potential development allowed by the approval.” It went on to cite court decisions including city annexations, general plan amendments, and rezones.

While the Port won’t admit it, the impacts of the Southern California Intermodal Gateway will be significant, as would the impacts of the appeals court ruling, if left to stand. Whatever decision eventually comes down, it could be the most significant case the harbor area has seen since the China Shipping Settlement was signed in 2003.

Most Popular

Millionaires versus Markets: Big Money Battles Prop. 15

The corporate owner of Terranea Resort has spent $250,000 to defeat Proposition 15, while Carson’s largest landowner, the Watson Land Corp., has...

Campaigning in a Different World

Top District 7 vote-getters in school board race look to distinguish themselves in new political environment The District 7...

Fog In the Media

Even the weather girl should know which way the wind blows Sitting, as I do most early mornings, drinking...

Social Media Spreads Fear on Anti-fascism Caravan

For four years, thousands of people descended upon San Pedro to see the latest in advanced military vessels, vehicles and weapons along...

Recent Comments

The Anti-fascists are the Fascists on The Truth About Antifa
Scott Wallace on The Truth About Antifa
David C Lizarraga on Episode – San Pedro: The Podcast
Randomly Lengthly Walt on Republicans’ Revolt
Antifa are the real fascists on The Truth About Antifa
Artemis Gordon on The Truth About Antifa
Vicky Palesa Adam on Lung Health Tips for COVID-19
J.S on Icarus Falls
Ghost from your past! on Icarus Falls
Lisa Bennett on The Truth About Antifa
Dave on Icarus Falls
Kevin on Icarus Falls
DAVID J LEE on Think: George Floyd
M Mackey on Think: George Floyd
Michael S. Motta on Think: George Floyd
Thomas "HOUSE" Houchens on Think: George Floyd
Eliath Mena on Think: George Floyd
Deidre Powell on Think: George Floyd
Marcia Ladymgirl on Think: George Floyd
Jennifer L on Think: George Floyd
Carlos Fisher on Think: George Floyd
Jose "cheMMa" Rodriguz on Think: George Floyd
Aniza Thomas on Think: George Floyd
David Seay on Think: George Floyd
Marc LJ on Think: George Floyd
andre edwards on Think: George Floyd
Terelle Jerricks on From Pop Culture to Cop Culture
Sharon Hislop on Think: George Floyd
Fetteroff on Think: George Floyd
Raul Acevedo Jr. on Think: George Floyd
Mel Grayson on Think: George Floyd
Terelle Jerricks on A Virtual World of Events 
Alice r. Knoop on Lung Health Tips for COVID-19
Melina Paris on Take me to Sardine
Joshua E Chambers on Take me to Sardine
Chad Dorchester on Take me to Sardine
Terelle Jerricks on Change Won’t Be Televised
Melina Paris on Take me to Sardine
Melina Paris on Take me to Sardine
Melina Paris on Take me to Sardine
Bob Kohler on About
Judie M Barker on About
Kim Kaufman on Staff
Kim Kaufman on Staff
Vivian Morales on From War to Lowrider
Robin Doyno on Staff
Publisher on About
Joe Stackhouse on Advertise
Marshariki Haylock on A Stabbing in San Pedro
CARRIE MENDOZA on A Stabbing in San Pedro
Martin Palmiere EMC(SW) ret. on Trouble on the Iowa
Martin A.Palmiere EMC(SW) USN(ret.) on Trouble on the Iowa
John H Winkler on Frequently Asked Questions
J. McVey on Staff
Malou Mariano on Tampering and Collusion
Terrell Williams on The New Gap Band Fills The Gap
Alton C . Thompson, Ph. D. on About
Harold Ericsson on Letters to the Editor
Hillbinkel on Trouble on the Iowa
Ian Gordon on KKJZ Leaves CSULB Campus
larry lebedin on KKJZ Leaves CSULB Campus
Joseph Bianco on Frequently Asked Questions
Deborah Steed on Zerby Family Finds Solace
Don Griffin on Rosenberg
Pete on About
Anne Marie Knudsen on Clem Pennington is the Whole Package
Terelle Jerricks on About
Lyn Jensen on Go Retro with Records
Steven R. Heldt on Fig Trees Are Like Democracies
Joanne Sims on Peacocks, Paseo, Politics
Dave Borst-Smith on Peacocks, Paseo, Politics
Charles Traupmann on The Buscaino Report:
james P. Allen on Across the Great Divide
Allyson Vought on Across the Great Divide
PBinLostAngeles on RL NEWS Roundups: June 14, 2016
davehall on Voter Guide
Chris formica Gringos Tacos on Food Truck Blues
Random Lengths News on Iowa Fever
Tinisha Rodrique on IMG_1761
polos fred perry on Less Than a Side Show
cheap soccer jersey on Less Than a Side Show
le mahjong gratuit on The Surrealness of Knives and Breast
Harry and the Gang on Sherlock Holmes at the LB Playhouse
neufert architect s data pdf on IMG_1761
sewing machine reviews on Annie at the Warner Grand