On January 22, the Fourth District of the Court of Appeal released the latest decision in the long-running saga of the China Shipping Terminal (“Project”) at the Port of Los Angeles in Natural Resources Defense Council, et al. v. City of Los Angeles et al. The Court’s main holding was that the Superior Court erred by viewing its discretion to fashion remedies for violations of the California Environmental Quality Act (“CEQA”) as limited to a writ commanding the City of Los Angeles (“City”) to rescind the City’s certification of a Supplemental Environmental Impact Report (“SEIR”) and to revise the CEQA analysis. The Court further determined that, in addition to the City’s “profound” CEQA violations already found by the Superior Court, the City had additionally failed to comply with CEQA in revising a previously adopted mitigation measure and in failing to adopt feasible mitigation for the Project’s greenhouse gas impacts.
A Long History of CEQA Violations
In 2001, the City issued a permit to China Shipping allowing it to construct, lease, and operate a terminal at the Port of Los Angeles. Shortly after the City and China Shipping entered into the lease, multiple parties successfully sued the City for attempting to develop and operate the Project without having prepared a project-specific Environmental Impact Report (“EIR”) for the planned three-phase development of the Project (“NRDC I”). In NRDC I, the Court of Appeal directed the trial court to order the City to complete an EIR for all three phases of the Project and to issue an injunction staying the second and third phases of construction until further order of the court.
The first phase of the Project was completed in 2003. In 2004, the petitioners in NRDC I and the City entered into a stipulated judgement, which allowed the City to complete construction of the Project and begin the first phase of operations while it completed the EIR. In exchange, the City agreed to incorporate multiple mitigation measures as part of the Project’s construction and operation.
In 2008, the City certified an EIR for all three phases of the Project. The 2008 EIR determined that the Project’s operations would have significant environmental effects and adopted mitigation measures. However, after certifying the 2008 EIR, the City failed to modify the lease with China Shipping to incorporate the environmental mitigation measures identified in it and many of the mitigation measures were never implemented.
Seven years later, in September 2015, the City determined that it would need to prepare an SEIR to address the mitigation measures that had been adopted in the 2008 EIR but never implemented. The City certified the SEIR in 2019. The Project continued to operate during the four years the City was preparing the SEIR, all without fully implementing the mitigation measures from the 2008 EIR.
The Superior Court Finds the 2019 SEIR Flawed for “Profound” CEQA Violations
Similar to the City’s approach in the 2008 EIR, the 2019 SEIR did not specifically require mitigation measures to be implemented but rather stated that new and modified mitigation measures would be later included in a new amendment to the lease with China Shipping. Petitioners challenged the City’s certification of the 2019 SIER and the Superior Court determined that the City had violated CEQA because none of the mitigation measures adopted by the City were made enforceable, as required by CEQA. The Superior Court also found that because the SEIR was based on the unsupported assumption that China Shipping would agree to modify its lease to incorporate mitigation measures, the SEIR’s emissions impact analysis was flawed. However, the Superior Court believed that it was bound by Public Resources Code section 21168.9 in fashioning remedies for the City’s CEQA errors and limited the writ of mandate to a command that the City rescind and redo the SEIR.
Section 21168.9’s Remedies Are Not Limited to Revisions to the CEQA Document
On appeal, the Court found that the Superior Court had erred in its limited interpretation of the remedies available under Section 21168.9. The Court seemed particularly troubled that the Project was allowed to continue operating while the City prepared a new SEIR; a result that allowed the City to “violate CEQA without any real consequence.” Instead, the Court held that a court issuing a writ of mandate to correct CEQA violations can: 1) order an agency to void its approvals; 2) suspend project activities; 3) direct the agency to undertake specific actions to bring its decision making into compliance with CEQA; and 4) fashion equitable remedies as appropriate. The Court then went on to suggest that such remedies could include a strict timeline for adoption of a new SEIR and suspending Project activities before remanding the case to the trial court for determination of the appropriate remedy.
Takeaways for Public Agencies and Project Proponents
For both project proponents and local agencies, it is important to realize that CEQA compliance is not just a box that must be checked on the path to project approvals. As this case demonstrates, incomplete analysis of environmental impacts or the lack of real, enforceable mitigation measures can lead to serious results including the court-ordered suspension of projects that are already operational.
Questions
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Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4500
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