The Nickel Report

In challenges to California development projects, the “usual suspects” typically include environmental NGOs or neighborhood organizations.  However, that’s not always the case, as illustrated by a new lawsuit filed by the South Coast Air Quality Management District (“SCAQMD”) against the Port of Los Angeles. In that lawsuit, SCAQMD claims the Port violated the California Environmental Quality Act (“CEQA”) in approving a Final Supplemental Environmental Impact Report (“2020 Final SEIR”) for the China Shipping container terminal (Port berths 97-109).  And, this week, the California Air Resources Board (“CARB”), represented by the California Attorney General, decided to enter the case on behalf of the SCAQMD.

In addition to the fact that sister agencies are not the typical plaintiffs in CEQA challenges, the lawsuit is notable because, at its core, are two key California air quality initiatives  – AB 617, which addresses local air toxics, and the Governor’s Zero-Emissions Vehicle (“ZEV”) Initiative, which is the subject of another blog post.

SCAQMD alleges the China Shipping terminal handled approximately 17% of the Port’s total cargo in 2019, and claims that prior emission mitigation commitments in a 2008 Environmental Impact Statement/Environmental Impact Report and lease agreement were not implemented or enforced.  SCAQMD takes issue with the 2020 Final SEIR, which it alleges contains “unenforceable and inferior substitute measures.”

CARB’s decision to enter the case is notable for a few reasons.  First, it uses AB 617 and AB 617 Community Emissions Reduction Plans as the basis for its stake in the case.  Second, it highlights the scrutiny it expects all agencies to place on the new ZEV directives and the corresponding focus on NOx emissions.  Third, it could signal either a reluctance to defer to the local air district, which is supposed to have the primary role in managing local air quality under California law, especially for stationary sources, or perhaps a welcome move of bringing reinforcements to support the case.  This may in part be attributable to a concern around local commitment to implementation of AB 617 emissions reduction plans.  Finally, it highlights CARB’s ability to use CEQA to advance its environmental justice plans and strategy.

For those not directly involved in the lawsuit, the case will be of interest as an indicator of how new air quality initiatives might impact the economic growth and approvability of projects that are important to the state’s economy going forward.

The case discussed in this blog post is titled South Coast Air Quality Management District v. City of Los Angeles, et al., LA Superior Court case no. 20STCP02985. The complaint can be found here and the motion to intervene can be found here.