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LA Approves SCIG, Lawsuits Ahead?

By Paul Rosenberg, Senior Editor

It was deja vu all over again, at the Los Angeles City Council on May 8.Screen shot 2013-05-21 at 12.18.00 PM

The council voted 11-2 to approve the controversial Southern California International Gateway off-dock railyard project, less than two weeks before a new mayor will be elected. Twelve years ago, in its waning weeks, the Richard Riordan administration rushed through approval of the China Shipping terminal project without benefit of an environmental impact report.

The lawsuit that followed eventually transformed the port in many ways, but not enough, it appears, as the Harbor Commission’s closed session agenda the week before the council vote included seven potential Southern California International Gateway-based lawsuits from appellants who were heard—and ignored—by the Los Angeles City Council.

How many lawsuits will actually result is anybody’s guess. But three salient points of historical comparison can provide some guidance. First, the Natural Resources Defense Council successfully represented the China Shipping litigants who challenged the similar rushed decision 12 years ago, and has already promised further legal challenges to SCIG.

Second is the historical example of the TraPac Terminal expansion, in which litigation was avoided by a negotiation process that created a community benefits mitigation fund—a parallel Long Beach Mayor Bob Foster has repeatedly invoked. Third is the unprecedented action already taken by the South Coast Air Quality Management District, as explained in Executive Officer Barry Wallerstein’s testimony,

“The AQMD has in its entire history never appeared before anybody to oppose a project until today,” Wallerstein said. “We took this step because the pollution from the SCIG will harm public health and because the project does not include feasible mitigation measures as required under CEQA [the California Environmental Quality Act].”

On the first point, Wallerstein disputed the port’s claim that “pollution levels in the adjacent communities will be lower.”

“Our review with our air quality experts indicates that that is not so,” he said. “The EIR overstates future pollution levels without SCIG, making the project appear more beneficial.

“More importantly, the EIR finds that SCIG will cause community nitrogen dioxide levels to exceed the federal outdoor AQ standards for NO2. That could potentially subject our region to federal sanctions.”

It’s the AQMD’s job to make sure this doesn’t happen.

On the second point, Wallerstein stressed, “The lease does not require two feasible measures that would greatly reduce emissions: Tier 4 locomotives and zero-emission trucks. The lease does not even implement the port’s own goals for these technologies in the port’s Clean Air Action Plan.

“They claim the lease requires zero emission trucks, but there is no requirement stated in the lease, no schedule to adopt a requirement, no implementation schedule, and vague criteria for possible future decisions, that provide much opportunity for disagreement with BNSF.”

The locomotive situation was similar, he said. “In essence there is no pressure of any type to make these things happen.”

In his testimony, which included arguments paralleling AQMD’s, NRDC senior lawyer David Pettit gave clear warning of legal challenges to come.

“Overall, this is a civil rights issue,” Pettit said. “The EIR frankly admits that there will be a much worse impact of this project on the neighboring low income communities of color than anywhere else. If this goes to litigation, we’re going to file a Title 6 complaint with the [U.S.] Dept. of Transportation, a civil rights claim in the state court, and I don’t think anyone on this council wants to have that as their legacy as part of this project. If appeals are denied, that’s what’s going to happen.”

It’s a disturbing legacy for the first Latino mayor of Los Angeles since the 19th century. But nobody can say that they weren’t amply warned.

 

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