Thursday, October 31, 2002
Court of Appeal Orders New EIR on Los Angeles Shipping Terminal Project
By a MetNews Staff Writer
The controversial China Shipping terminal project at the Port of Los Angeles cannot proceed without a detailed environmental impact report, the Court of Appeal for this district ruled yesterday.
The ruling by Div. Four follows up on what the Natural Resources Defense Council called a “stunning victory for environmentalists”—the court’s Oct. 23 stay order that blocked most of the ongoing work on the terminal project.
Environmentalists—including the NRDC, Coalition for Clean Air, San Pedro and Peninsula Homeowners Coalition and San Pedro Peninsula Homeowners United—filed suit after the city entered into an agreement with China Shipping Holding Co.
The appeals court, reversing last year’s ruling by Los Angeles Superior Court Judge Dzintra Janavs, held that the project requires a specific EIR covering all three phases of the planned construction.
Janavs had agreed with the city that a 1997 “program” EIR for the first phase of construction, combined with the city’s assurance “that additional environmental evaluation is required as to Phases II and III,” was sufficient to comply with the California Environmental Quality Act.
But Justice J. Gary Hastings, writing for an appellate panel that also included Presiding Justice Charles Vogel and Justice Norman Epstein, agreed with the plaintiffs and Attorney General Bill Lockyer, who entered the case as amicus.
The port and the city, the attorney general said in a brief, “have reduced CEQA to a process whose result will be largely to generate paper, to produce an EIR that describes a journey whose destination is already predetermined and contractually committed to before the public has any chance to see either the road map or the full price tag.”
In concluding that there has not been adequate environmental review, Hastings cited a “side letter” agreement between the city and China Shipping, approved by the City Council in July of last year. The agreement dealt with such issues as emissions from container ships and tug boats, congestion from container traffic and truck traffic, availability of off-peak delivery service, and emissions resulting from use of “On-Dock” equipment.
Under the agreement, Hastings explained, China Shipping and the port are to use their “best efforts” to minimize negative environmental impacts in those areas.
Neither the 1997 EIR nor a supplemental EIR prepared two years ago adequately addressed the issues raised in the side letter, the justice concluded.
“The China Shipping project is a site-specific project to be carried out over three phases,” the justice wrote. “When a specific project contemplates future expansion, the lead agency is required to review all phases of the project before it is undertaken.”
The California Supreme Court, Hastings wrote, has condemned the type of postapproval environmental review envisioned by the city and the trial judge, expressing fear that EIRs might “become nothing more than post hoc rationalizations to support the action already taken.”
The appropriate means of reviewing a project like the shipping terminal under CEQA is a “tiered” EIR—one that begins by addressing broad, general impacts and ultimately progresses to site-specific ones—dealing with all three phases, the justice declared.
The appeal was argued by NRDC staff lawyer Gail Ruderman Feuer for the plaintiffs, Michael H. Zischke of Morrison & Foerster for the city, and Deputy Attorney General Susan L. Durbin for Lockyer.
The case is Natural Resources Defense Council, Inc. v. City of Los Angeles, 02 S.O.S. 5522.
Copyright 2002, Metropolitan News Company