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On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177.  City of Long Beach v. City of Los Angeles, Case No. A148993 (2018).  The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project.  The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate.

In 2005, BNSF proposed to construct a new railyard terminal approximately four miles from the Ports of Long Beach and Los Angeles.  Collectively, these two ports handle up to 64 percent of all oceanic shipping on the West Coast and about 35 percent of such shipping in the United States.  Because of the massive volume of shipment containers coming into these ports, containers are off-loaded and placed onto trains at “on-dock” railyards, or loaded onto trucks to be sent to their final destination, “near-dock” railyards, or “off-dock” railyards.  BNSF proposed to construct a 153-acre “near-dock” railyard to support the ports in the area.

In 2013, the Los Angeles Harbor Department issued a final EIR for the railyard project.  Although the EIR concluded that the project would have significant and unavoidable environmental impacts on air quality, noise, greenhouse gases (GHG), and traffic, the board of harbor commissioners certified the EIR and approved the project by adopting a statement of overriding considerations.

Several petitioners challenged the project in the Los Angeles County Superior Court, which cases were later transferred and tried in a neutral county (Contra Costa County Superior Court).  The trial court concluded the EIR’s project description and analysis of impacts on a variety of issues including noise, traffic, air quality, and GHG were inadequate.

The City of Los Angeles and BNSF appealed, asserting that the trial court was wrong in concluding that the EIR’s project description was deficient or misleading.  In addition, appellants challenged the Attorney General’s ability to intervene without any appearance in the administrative process, as well as the trial court’s conclusion that the EIR failed to adequately consider impacts on noise, traffic, air quality, and GHG.

Although the Appeals Court acknowledged that excusing the Attorney General from CEQA exhaustion requirements creates the possibility that an EIR may be found inadequate on issues that were never previously raised with the relevant agency, the court held that the exhaustion requirement does not apply to the Attorney General.  The court reasoned that the plain language of California Public Resources Code Section 21177, subdivision (d), which sets forth CEQA exhaustion requirements, exempts the Attorney General from all statutory exhaustion requirements.

The Appeals Court also held that the final EIR failed to adequately consider air quality impacts from the project.  Siding with the trial court, the Appeals Court agreed that the EIR’s analysis of air pollution concentrations was incomplete or that crucial information had been omitted.  For example, the court observed that a project neighbor would not be able to assess how bad air quality might be if the railyard was constructed.  In addition, the Appeals Court agreed that the EIR failed to consider the cumulative impact on air quality from the project.

However, the Appeals Court reversed the trial court on the issue of the EIR’s analysis of GHG emissions.  The EIR assessed two potential impacts in relation to GHG emissions.  First, the EIR considered whether the project would result in an increase in “construction-related and operation-related” GHG emissions.  On this issue, the EIR quantified GHG emissions and concluded that significant impacts would occur.  Second, the EIR qualitatively considered whether the project would conflict with state and local plans or policies for reducing GHG emissions.  On this issue, the EIR concluded that the project was consistent with such policies and plans.  The Appeals Court found the harbor department’s analysis of GHG emissions “particularly apt” since a no project alternative still would have resulted in a significant impact on GHG emissions given the continued volume of shipments in the area and it would not have been consistent with conservation goals or policies.

On all of the other issues raised, the Appeals Court concluded that the EIR was sufficient, including on the issues of noise, traffic, and the description of issues.  Accordingly, the Appeals Court affirmed in part, and reversed in part the trial court’s decision.