Revised Mitigation Plan Challenged
“This case is the latest in a chain of litigation stretching back over two decades.” So begins the California Attorney General’s opening brief in the China Shipping lawsuit set for trial in San Diego on June 24. At issue is the adequacy — and lawfulness — of the port’s revised environmental mitigation measures approved in 2020 by the Board of Harbor Commissioners.
In the beginning — when the port tried to build the China Shipping terminal without any environmental impact report at all — local homeowners battled alone, but not any more. The Attorney General is arguing on behalf of The People of California, as well as the California Air Resources Board.
“The Port [of Los Angeles] has repeatedly failed to comply with CEQA [the California Environmental Quality Act] in approving projects at the China Shipping Container Terminal,” the brief goes on to say. “In so doing, the Port has chosen to expose communities of color and low-income communities to excess emissions of criteria and toxic air pollutants harmful to public health, despite the fact that feasible measures to mitigate those emissions were available and required. Not only is that choice unlawful, it is unconscionable as it unjustifiably increases the public health risk for Californians that are already overburdened by some of the highest levels of air pollution.”
The initial lawsuit was settled in 2003, modified in an amended stipulated judgment (ASJ), signed in 2004. But crucial mitigation measures in the EIR completed in 2008 were never implemented. “Although the Port knew, or should have known, about these failures as early as 2009, it did not disclose them to the public until 2015, after a Public Records Act request [from Random Lengths News] revealed the noncompliance,” the brief explains. A supplemental EIR meant to remedy that failure was opposed as illegally inadequate by all the plaintiffs in the current case — which includes the homeowners and their allies (known as “Community Petitioners”), represented by the Natural Resources Defense Council, along with the South Coast Air Quality Management District. This is only the third time ever the AQMD has joined such a lawsuit. The Attorney General’s involvement is even more exceptional.
The three filed separate lawsuits which were joined together, but they continue to make distinctly different — though related — arguments reflecting their different roles, while relying on a common foundation of facts.
The Community Petitioners brief argues that the SEIR “contravenes two fundamental purposes of CEQA: to inform the public and decision makers about the environmental effects of a proposed project, and to reduce those effects to the extent feasible.”
The Attorney General’s brief argues that the port violated CEQA in five ways: by “failing to enforce the 2008 mitigation measures,” by producing an invalid SEIR that “cannot cure the Port’s failure,” by failing to support changes to the 2008 mitigation measures “with substantial evidence,” by “failing to adopt all feasible mitigation measures,” and by “failing to ensure the SEIR mitigation measures are fully enforceable.”
Finally, AQMD is arguing for “a writ of mandate to protect the local community and the region’s air by compelling the Port’s compliance with CEQA.”
The port’s core line of defense is to normalize everything it has done (all the way back to 2001), claim it did nothing wrong, and shift the burden of proof: “The EIR is presumed adequate and challengers bear the burden to prove otherwise,” it states in its brief. Challengers “must establish, at every stage in the litigation, that ‘the determination or decision is not supported by substantial evidence.’”
To defend its failure to enforce compliance via lease terms, the port tries to shift blame to the plaintiffs and their attorneys: “[B]ecause NRDC did not include China Shipping in the original lawsuit or the ASJ, nor secured an order to set aside Permit 999, China Shipping was allowed to continue to operate the Terminal under Permit 999,” thus leaving the port powerless to enforce the measures — or so it claims.
However, the Attorney General’s brief notes that “In February 2015, counsel for the Port sent a letter to China Shipping, acknowledging its responsibility to enforce the measures, and warning that “[i]f these measures are not included [in China Shipping’s operating lease, the lease] remains legally insufficient and China Shipping’s operations could be subject to legal action,” which could affect the terminal’s operations.
“The Court should reject the Port’s attempt to blame its legal violations on the ‘complicated’ history of the China Shipping terminal,” NRDC wrote in a reply brief filed on May 24. “The reality is that those complications have been caused by the Port’s repeated refusal to comply with CEQA.”