LOS ANGELES - A California state appeals court has ruled a San Diego judge didn't go far enough in imposing a "remedy" on alleged mishandling of environmental mitigation by the L.A. Harbor Department at the Port of Los Angeles' China Shipping terminal, with the appeals court indicating they believed the judge could order the terminal - one of eight major terminals at the Port - to suspend operations entirely.
On Jan. 22, a three-justice panel of the California Fourth District Court of Appeal in Los Angeles sided with environmental activists in finding that a much harsher "remedy" should have been imposed on the city of Los Angeles and China Shipping North America, over alleged violations of the California Environmental Quality Act (CEQA.)
The case centered on legal action brought by the Natural Resources Defense Council and others against the defendants, claiming the city of L.A. violated state law when it accepted a so-called "supplemental environmental impact report" in 2019 that would allow China Shipping to continue operating its terminal at the Port of Los Angeles.
California Fourth District Appellate Justice Terry O'Rourke
| California Courts
In its decision, the court acknowledged that the economic impact of China Shipping's continued operation is immense. The Port of Los Angeles stands as the largest shipping port in North America in terms of shipping volume and cargo value. Together with the nearby Port of Long Beach, the southern California ports alone account for 64% of all shipping on the U.S. Pacific Coast, and more than a third of all shipping in the U.S., overall.
At the Port of Los Angeles, China Shipping has operated one of the port's major shipping terminals since 2001. At that time, China Shipping entered into a 25-year lease.
From the outset, the China Shipping terminal has been targeted by lawsuits from environmental activists, who asserted the terminal was approved without certification of an "environmental impact report" (EIR) required under CEQA.
The initial litigation was settled in the mid-2000s, and an EIR was certified in 2008, allegedly acknowledging the terminal's activities would have environmental impacts, particularly on "minority and low-income populations." That EIR allegedly required a variety of "mitigation" procedures to address the alleged impacts.
However, in the years since, published reports have indicated that L.A. Port officials have not enforced those mitigation measures. In 2015, the Port announced that it was working with China Shipping to reevaluate at least 11 mitigation measures, as the Port and CS questioned whether those measures were feasible and whether better alternatives may be available.
The Port and CS then presented a supplemental environmental impact report (SEIR), and the L.A. Harbor Board certified it in 2019.
That certification was immediately challenged in court.
Judge Taylor ultimately agreed with the challengers that the mitigation measures spelled out in the SEIR were inadequate. However, he ruled only that the SEIR certification be set aside to be revisited, as he believed the state law did not allow him to do more.
The activists appealed that decision, seeking harsher "remedies," potentially including the shutdown of the China Shipping terminal altogether until the required mitigation measures were implemented.
On appeal, the three justices agreed that Judge Taylor did not go far enough, ruling that the court's authority is far more broad under CEQA to enforce such mitigation measures.
The appeals justices agreed with the Port that a number of mitigations sought by activist challengers were "without merit" and should not be enforced.
But they said some claims undermined the certification of the SEIR, notably including a lack of an effective enforcement mechanism against CS to ensure the mitigation measures required in the 2019 SEIR under CEQA.
Judge Taylor's "remedy - ordering the Port to set aside the 2019 SEIR while still allowing the Port to continue to operate the Terminal pursuant to the Lease without any of the purportedly-adopted mitigation being enforced while the Port prepares a new SEIR - permits the Port to violate CEQA without any real consequence," the justices wrote.
"CEQA does not countenance such a result."
Instead, the justices said CEQA gives courts the authority to take steps "for ensuring CEQA compliance and the protection of the physical environment."
In this case, the justices said these can include ordering the Port to enforce the mitigations in the 2019 SEIR and certain measures in the 2008 EIR.
While they did not order Judge Taylor to do so, the justices said the lower court also could potentially order the CS terminal to suspend operations until the mitigation measures are enforced.
The case was remanded to San Diego County Superior Court for further proceedings on the question of the appropriate "remedy" for the alleged shortcomings of the 2019 SEIR.
The opinion was authored by Justice Terry B. O'Rourke; Justices Judith McConnell and Julia C. Kelety concurred.