Charles Parkin
Long Beach
City Attorney

333 West Ocean Boulevard - 11th Floor
Long Beach, California 90802-4664

cityattorney@longbeach.gov
7/26/2016
FOR IMMEDIATE RELEASEPress Release # 018
Subject:
Court Issues Final Judgement in SCIG Case, Rejecting BNSF Objections and Ordering Port to Rescind Approvals
Contact:
Charles Parkin, City Attorney
Michael J. Mais, Assistant City Attorney
(562) 570-2200
charles.parkin@longbeach.gov
michael.mais@longbeach.gov




After more than three years of litigation, Contra Costa Superior Court Judge Barry P. Goode issued his final opinion in the case challenging the Port of Los Angeles’s approval of BNSF Railway’s Southern California International Gateway (SCIG) project. Earlier this year, the Court ruled that the Port’s environmental analysis of the project was flawed. BNSF subsequently objected to a portion of this ruling, arguing that the Court could not, under federal law, require the Port to rescind its approvals while considering off-site environmental impacts. On July 26, the Court rejected BNSF’s arguments and issued final judgment in the case, bringing the trial court portion of the case to an end.

“BNSF’s eleventh hour objections were really just an attempt to reargue the case,” said Long Beach City Attorney Charles Parkin. “The Court’s opinion makes clear that his earlier ruling stands, and BNSF’s concerns about what the Port might do in response to the ruling are purely hypothetical at this point. We’re pleased that the project will not be moving forward unless the Port corrects its flawed EIR to protect the health and safety of neighboring residents.”

As approved by the City of Los Angeles and the Port, the SCIG railyard project would have allowed the construction and operation of a new railyard immediately adjacent to West Long Beach. The project included a lease to BNSF Railway Company, which would operate the railyard for the next 50 years. The court record demonstrated that this new facility would add significant air pollution to the region.

The new railyard would have directed thousands of diesel trucks and miles of diesel trains close to schools, daycare centers, playing fields and residences on a daily basis. By 2035, the project would have generated two million truck trips per year to and from the site, and the loading and unloading of up to 1.5 million shipping containers annually.

The Port and the City of Los Angeles voted to adopt the Environmental Impact Report for the SCIG railyard in 2013 over the strenuous objections of numerous public agencies and non-profit organizations concerned about its environmental impacts. In all, seven lawsuits were consolidated into one case that focused on the increase in pollution resulting from the project. The original petitioners included the City of Long Beach; a number of community and environmental groups, including the Natural Resources Defense Council; Long Beach Unified School District; the South Coast Air Quality Management District; and several transportation companies with business at the Port. The California Attorney General’s Office later intervened in support of the petitioners. At the request of the City of Los Angeles and the Port, the case was moved out of Los Angeles, and the parties agreed to Contra Costa County as the new venue.

“We understand that the Port of Los Angeles provides an important economic engine to the region, but that doesn’t mean that it can bypass laws designed to protect the environment and public health,” said Michael Mais, Assistant City Attorney of Long Beach. “The Port of Los Angeles was required to do its best to limit the environmental harm of this project, and the court agreed with petitioners that the Port’s efforts fell far short.” Mr. Mais, along with outside counsel Rachel Hooper and Winter King of Shute, Mihaly & Weinberger, represented the City in this litigation.

The biggest concerns about the project centered on air quality, noise, and traffic impacts, and related threats to public health, particularly on the communities closest to the project site. The lawsuit focused on the shortcomings of the environmental review completed for the project as required by the California Environmental Quality Act (CEQA). The City of Long Beach and others argued that the Environmental Impact Report omitted basic information about the project and that its analysis was based on serious distortions of its predicted impacts. The City’s lawsuit stated that the EIR “systematically understates the Project’s environmental impacts” and was therefore both misleading and inadequate under state law.

The most glaring shortcomings in the environmental review related to air quality, greenhouse gas emissions, noise, and traffic impacts. For example, the court found that the EIR used a flawed approach to measure the noise impacts of the new facility, which will operate 24 hours a day, 7 days a week. Instead of considering the maximum acceptable level of individual noise events, the document focused on “average” noise impacts. This approach was misleading because residents will likely be awakened on a regular basis by nighttime train passbys that would exceed existing local noise ordinances.

The court further concluded that the EIR underestimated traffic impacts on San Gabriel Avenue near the entrance to a large supportive housing community, the Century Villages at Cabrillo. In addition, the court held that EIR provided a misleading analysis of the project’s impacts on air quality, and that a key air quality mitigation measure was inadequate.

The court also found that the EIR failed to analyze the impacts that the SCIG project would have on BNSF’s existing Hobart facility. This omission was a fundamental error, causing the EIR to underestimate SCIG’s effects, including its capacity to induce further growth in the area. By failing to take the Hobart impacts into account, the EIR provided an inaccurate assessment of the project’s impacts on climate change. Similarly, the EIR failed to analyze the combined, or cumulative, impacts from SCIG and the existing ICTF railyard.

With today’s ruling, the Port is required to vacate the project approvals and suspend all project activities until the Port and City comply with CEQA. The agency must now complete a more robust and accurate analysis of the environmental impacts of the project before the project can move forward.

The case is Fastlane Transportation, Inc. v. City of Los Angeles, et al., Contra Costa County Superior Court Case No. CIV.MSM 14-0300. The final opinion, judgment and writ are now available from the court. BNSF and the Port have 60 days to appeal the judgment.