China Shipping: Appeals Court Asks “Lucy And The Football” Question

Appeals court justices asked the “Lucy and the football” question in a hearing on the second China Shipping lawsuit on Nov. 17, and the Port of LA’s answer sounded a lot like Charlie Brown.

But that’s not to make light of the lives at stake.

“For over 20 years now the port of Los Angeles has defied CEQA [California Environmental Quality Act, California’s premiere environmental law] by failing to require all feasible CEQA mitigation for air pollution from the China Shipping terminal,” National Resources Defense Council, or NRDC attorney Margaret Hseih began. “We are here today because that pollution is killing people, and it’s making people sick because the trial court’s order allows the agency’s profound violation of CEQA to continue.”

The trial court found that POLA had violated CEQA in several ways, but said it lacked the power to stop it. Most critically, POLA assumed “that China Shipping would agree to amend its lease,” which it had repeatedly refused to do — thus the Peanuts reference.

The appeals court justices readily agreed with Hseih that the trial court was mistaken about its lack of power, which only further put the focus on possible remedies.

“How do we get around the Lucy and the football question here?” Justice Julia Kelety asked the Port of LA’s attorney, Amrit Kulkarni. “They had an EIR [Environmental Impact Report] and China [Shipping] said we don’t want to do it, ” she noted. “How is that not just going to happen again? How is it going to be different this time?”

That question went to the very heart of the case: making pollution-reducing mitigation measures enforceable. Four mitigation measures were also in dispute — two challenged by NRDC and two by the South Coast Air Quality Management District, or AQMD — as was the issue of an independent monitor. But none of that really matters if mitigation measures aren’t enforceable, as CEQA requires.

“The difference here, your honor, is we actually have a trial court writ and an order directing that mitigation measures be made enforceable,” Kulkarni responded. But, “How do you make it enforceable?” Justice Terry O’Rourke asked, going on to note the Chinese government’s opposition to any such measures worldwide.

Kulkarni tried to explain the step-by-step process the port envisioned, but, cutting to the chase, in the end, Justice Judith McConnell noted, “Basically what you’re saying is there’s no way to enforce anything.”

Justice Kelety tried imagining otherwise, speculating that “It would be that the port’s lease will be unilaterally amended, not amended the way of lease negotiations usually happen, but unilaterally imposed amendment to the lease.”

“I don’t think the port could unilaterally impose a lease agreement, your Honor,” Kulkarni responded, essentially confirming Justice McConnell’s point.

When Hseih returned, she was asked to answer the “Lucy and the football” question as well.

“Your honor, that’s why we have included a third request for a remedy as a backstop measure,” Hseih said. “This court is empowered to order suspension of terminal operations if the port refuses to make the mitigation measures [enforceable].”

When questioned, she noted there was precedent. “In the earlier iteration of this case, in 2002 in NRDC vs City of Los Angeles, the appellant court enjoined the ongoing operations and construction of the China shipping terminal pending CEQA compliance,” she recounted. “This court is absolutely empowered to do so. But if the court chooses not to it can also send it back to the trial court,” she said, citing another case as precedent.

But that level of confrontation, disrupting trade with China, as Justice O’Rourke expressed concern over, is only a last resort.

“I don’t think realistically that’s going to happen,” Hseih said. “The port and China Shipping have amended their lease three times. They don’t lack the ability to do so, they lack the incentive to do so,” she stressed.

Later, Hseih pointed to another pressure point. “There is actually a provision about contract termination in the lease, in which that provision says if there is a court order that happens that effectively prevents a party from meeting its obligations — for example, this court was to order the suspension of the terminal — then either party can terminate the lease. So, there is a practical means of this happening.”

AQMD Weighs In On Ships And Trucks
AQMD — which deals primarily with smog — challenged two measures related to ships and trucks, the port’s primary sources of smog. Regarding ships, the port changed its vessel speed reduction requirement (12 knots within 40 nautical miles of Point Fermin) from 100% compliance to 95%, claiming that 100% was infeasible and that the change was negligible. AQMD attorney Josephine Lee concisely refuted both claims.

“The port erred in revising the vessel speed reduction measure on the basis that forgone NOx emissions will be negligible,” Lee stated. “The record shows that that 5% change in the VSRP, the NOx from that change alone would exceed CEQA significant standards of 10 tons per year. This is not negligible,” she said. What’s more, “Nothing in the record supports that 95% is all feasible mitigation. The terminal exceeded this range in multiple years reaching as high as 98% even while in noncompliance with CEQA, and no enforceable measures were in place.”

Lee’s arguments appeared to resonate with the justices, as they questioned Kulkarni on the port’s position.

“There is evidence in the administrative record that weather, mechanical issues, port delays, and the need to coordinate with labor schedules preclude a 100% requirement,” Kulkarni argued. But, “The question was, why not 98?” Justice O’Rourke reminded him.

“That 95% number was derived by taking the preceding five years before the certification of compliance with the China shipping terminal, which is a very reasonable approach to identify what was actually capable of being done,” Kulkarni replied.

“But it’s a little bit apples and oranges, right?” Justice Kelety responded: “Because the prior compliance has been voluntary whereas the proposal would be mandatory.”

Finally, in her rebuttal, Lee noted, “The port of Long Beach has certified a mitigation measure for 100% vessel speed reduction. So there’s no evidence that 100% cannot be achieved through the enforcement measure.”

The truck issue as argued came across as less clear-cut — but only because a key point was mentioned, but not driven home. The trial court upheld the elimination of the drayage truck measure requiring a phased transition from diesel to LNG trucks, and the failure to adopt a replacement measure. AQMD had argued at trial that this is strikingly at odds with the port’s own timeline of 2035 for 100% phase-in of zero-emission technologies — 10 years before the China Shipping lease expires.

But, “The key issue here is terminal specific,” Kulkarni told the justices, after first referencing three studies the port had relied on. “What the evidence shows is that if you’re going to address these major drayage truck emissions, you have to address them on the port-wide basis and not on the terminal-by-terminal basis, because the scale of these operations requires a port-wide solution.”

But Lee had already addressed this, in passing. She first noted that “the port had excluded consideration of phasing mitigation which it found feasible for cargo handling equipment,” only after that adding, “The port also found that terminal specific truck mitigation is feasible when it adopted AQ-19, it required phasing of cleaner trucks at the terminal and this mitigation measure was found feasible and it was successfully implemented.”

In fact, AQ-19 — in the original 2008 China Shipping EIR — was strikingly similar to AQ-20, the original measure whose elimination or updating was the issue at hand.

AQ-19 required heavy-duty trucks entering the terminal to meet U.S. Environmental Protection Agency 2007 emission standards in increasing percentages: “50% in 2009, 70% in 2010, 90% in 2011, 100% in 2012 and thereafter.”

AQ-20 required heavy-duty trucks entering the terminal to be LNG-fueled in increasing percentages: “50% in 2012 and 2013, 70% in 2014 through 2017, and 100% in 2018 and thereafter.”

Formally, the two measures are identical. If one could be implemented at a single terminal, then so could the other — the only caveat being technological availability, a separate issue that Lee addressed elsewhere. But since “it has to be port-wide” was the port’s main argument on this issue, Lee’s failure to dwell on this point and hammer it home seemed a lost opportunity.

NRDC Weighs In On Cargo-Handling Equipment And Greenhouse Gases
Hseih also argued that the port fell short on two mitigation measures, that it failed to “require all feasible mitigation for cargo handling equipment and greenhouse gas emissions.”

Regarding cargo handling equipment, Kulkarni referred to an assessment report, “supporting the port’s conclusion that top picks and forklifts simply were not at the technological level where they could actually be deployed and treated as feasible measures.”

But, “The port’s talking about different issues,” Hseih said. “The port’s saying it’s not feasible right now to do these technologies but that’s not what we’re asking for. We’re just asking for demonstration projects to be done.” In fact, “The record shows that at the time the SEIR was being prepared, there were demonstration projects scheduled for forklifts and for top handlers. So demonstration projects were on the books, including at this port, but at different terminals.”

She also noted that demonstration projects are intended to help identify technologies that “will become feasible within a reasonable amount of time,” and that the port’s study looked at “a short time period from 2018 to 2021. But there’s no reason to limit to that time,” she said. “This port is going to continue operating until 2045, that’s a really long project.”

On greenhouse gasses, the port has a lease measure, LM-GH1, “And it’s undisputed that measure doesn’t really reach CEQA requirements for mitigation,” Hseih argued, citing its inadequacy and lack of enforceability. “The port’s only rejoinder is that this measure doesn’t have to meet CEQA requirements, because it’s a lease measure and not a mitigation measure,” she explained. “But the agency clearly found that this measure would reduce the project’s significant greenhouse gas emissions, and that makes it a mitigation measure within the meaning of CEQA,” she said. “The port can’t have it both ways, it can’t credit emission reductions to this measure, but then refuse to implement the CEQA requirements that would ensure that reductions are effectual, that they’re enforceable, and that they’re adequate.”

The Issue of Independent Monitoring
Hseih also argued that the port failed to “respond adequately to comments explaining the critical need for an independent monitor,” going to explain:

Here we have a situation where the port and China shipping have been trusted with monitoring, but as the trial court found, here we have a situation where these two parties have again and again over the course of many years placed profits over compliance with CEQA or the protection of Harbor workers and residents. And it’s especially egregious here that the monitoring program is effectively identical to the prior monitoring program, the very same one that failed to identify these profound violations that bring us to court today.

So, without engaging with the extraordinary history of wrongdoing here, by the very parties who have been entrusted with monitoring, the port’s rejection of the comments requesting an independent monitor is not the kind of good faith reasoned analysis CEQA requires.

Indeed, it doesn’t seem to be an accident that at the same time the port was hiding its failure to enforce the original China Shipping mitigations it was engaged in a prolonged war to erode, and ultimately end the power of the only community oversight body the port had ever had: the Port Community Advisory Committee. The China Shipping terminal project isn’t the only facet of port operations that could benefit from community-based monitoring in real-time as problems arise, rather than trying to play catch-up years — or in this case, decades — after mistakes are first made.

A decision in the case is expected in about three months.  

“The port’s pollution is hurting people. It’s causing cancer. It’s sending people to the hospital. It’s shortening lives. And the port has been unlawfully profiting from this for over two decades now. ” Hsieh told Random Lengths. “That’s why we brought the port to court again: History has shown that it will continue to place profits over people unless forced to do otherwise. It’s time that the port be held accountable under the law and take the required steps to protect neighboring residents, harbor workers and the surrounding community.”