COUNSEL Roger Beers; Jan Chatten-Brown, Douglas P.
Carstens; Gail Ruderman Feuer and Julie Masters for Plaintiffs and Appellants. Bill Lockyer, Attorney General, Richard M.
Frank, Chief Assistant Attorney General, Theodora P. Berger, Assistant Attorney
General, Craig C. Thompson and Susan L. Durbin, Deputy Attorneys General, for
the State of California as Amicus Curiae on behalf of Plaintiffs and Appellants. Rockard J. Delgadillo, Richard M. Helgeson,
William L. Waterhouse; Morrison & Foerster, Michael H. Zischke, Scott B.
Birkey and Peter Hsiao for Defendants and Respondents.
This case involves construction of a
container terminal for the China Shipping Holding Co. (China Shipping), which
we reference as the China Shipping project, or Project. The China Shipping
project is the subject of a lease/permit entered into between China Shipping
and the City of Los Angeles (City) on May 8, 2001. The Project
contemplates three phases of construction for which the Port of Los Angeles granted a coastal development permit on October 10, 2001.
The China Shipping project was challenged
by filing of a petition for writ of mandate in the Los Angeles County Superior
Court asserting that the Project was violative of the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA)). n1 The challengers
are two nonprofit environmental groups, the Natural Resources Defense Council,
Inc., and Coalition for Clean Air, Inc., and two homeowners associations, the
San Pedro and Peninsula Homeowners' Coalition and San Pedro Peninsula
Homeowners United, Inc. (collectively appellants). Appellants appeal from
denial of their petition contending that the City violated CEQA by failing to
prepare a separate environmental impact report (EIR) addressing all three phases of the
Project before entering into the lease/permit with China Shipping. As a backup
argument, appellants contend an EIR "tiered" from a 1997
"program EIR" prepared by the City should have been prepared addressing all
three phases of the Project.
The City responds that the China Shipping
project falls within the scope of the original 1997 program EIR and a subsequent environmental
impact statement/EIR (SEIS/SEIR) completed in September 2000.
We have reviewed the administrative record,
the record from the trial court proceedings, and briefing by the parties,
including an amicus curiae brief filed by the California Attorney General
supporting appellants' position. We conclude that the City did fail to follow
the dictates of CEQA and we reverse the trial court judgment. We remand with
directions that the trial court order the City to prepare a project-specific EIR that covers all three phases of the
Project. We also direct the trial court to issue an injunction consistent with
a stay we have issued precluding further construction or operation of the
Project pending completion of the environmental review process.
An excerpt from the
"Introduction" of the amicus curiae brief filed by the Attorney
General provides a succinct statement why CEQA was violated:
"This case goes to the first
principles of CEQA. The CEQA process is intended to be a careful examination,
fully open to the public, of the environmental consequences of a given project,
covering the entire project, from start to finish. This examination is intended
to provide the fullest information reasonably available upon which the decision
makers and the public they serve can rely in determining whether or not to
start the project at all, not merely to decide whether to finish it. The EIR is intended to furnish both the
road map and the environmental price tag for a project, so that the decision
maker and the public both know, before the journey begins, just where the
journey will lead, and how much they--and the environment--will have to give up
in order to take that journey. As our Supreme Court said in Bozung v. Local
Agency Formation Com. (1975) 13 Cal. 3d 263, 283 [118 Cal. Rptr. 249, 529
P.2d 1017], '[t]he purpose of CEQA is not to generate paper, but to compel
government at all levels to make decisions with environmental consequences in
mind.' n2
"Here, the Port and the City have
reduced CEQA to a process whose result will be largely to generate paper, to
produce an EIR that describes a journey whose destination is already predetermined and
contractually committed to before the public has any chance to see either the
road map or the full price tag. [The City and Port] have segmented the project
into three phases and are in the process of preparing an EIR for Phases II and III separately from Phase I, while
engaged in building Phase I during the course of litigation. However, prior to
the EIR for Phases II and III being complete, before a draft is
even finished or available to the public, the City and the Port have committed
themselves to all Phases of the China Shipping project, by approving the
lease and the terms of the lease that call for construction of the entire
project. They have signed this legally binding lease for the entire
project before completing the CEQA process for two of its three Phases. Under
the statute's plain language, the Guidelines [(Cal. Code Regs., tit. 14, §
15000 et seq.)] adopted by the Resources Agency and binding on the City and the
Port, and a long line of cases covering decades of CEQA enforcement, this is
segmentation of the project and a per se violation of the statute."
FACTS
1997 Program EIR
In 1997 the Los Angeles Harbor Department
(LAHD), as lead agency, completed a program EIR for what was described as the West
Basin Transportation Improvements Program (WBTIP) for the Port of Los Angeles. The overall goal of the WBTIP was to improve containerized cargo
handling and the overall operating "efficiency of WestBasin container terminals." The area that was the subject of the EIR was divided into berths 97-109,
berths 121-131, berths 136-139 and berths 142-147.
The WBTIP was described in the EIR as being initiated "to
investigate optimization measures given that a number of changes are already in
progress." The changes included relocation of American President Lines
from berths 121-126 to TerminalIsland by early 1997, and the West Basin Widening Project to improve vessel
safety in the WestBasin and to provide potential for a new berth, 97-98, capable of
accommodating the largest of container vessels. A related project was described
as the Harry Bridges Boulevard Project affording opportunity for an improved
road and rail system to connect the berth and backland areas of the WestBasin to the proposed Alameda Corridor. It included grade separation projects
to eliminate vehicle-rail conflicts and an access route for trucks within the
Port area to connect to the Alameda Corridor and the freeway system.
The EIR predicted that containerized cargo
transport through the Port of Los Angeles would more than double by the year 2020 and that actual increases had
greatly exceeded forecasts. It provided: "To meet this demand the LAHD has
embarked on several major development programs to (1) optimize existing cargo
handling capability on existing Port lands, (2) create additional lands and
build new marine terminals through landfill development, (3) facilitate cargo
movement by improving ship channels and landside transportation . . . to
optimize container transport capabilities, and (4) to optimize transportation
infrastructure identified in the Knoll Hill EIR (LAHD 1978) and the Harry Bridges
Boulevard Project (LAHD 1994)."
The 1997 EIR contemplated two phases of
construction. Phase I involved construction of a railyard at berths 97-109, two
lead tracks and a railyard access roadway at berths 121-131, and one lead track
at berths 136-139. Berths 97-109 were to be improved by construction of new
entrance gate facilities and a new 1,000-foot wharf at berths 98-100. There was
also to be realignment, extension and filling over a storm drain in the western
portion of the project area to provide additional space for a new access
roadway alongside the WestBasin railyard. Berths 121-126 and 127-131 were to be consolidated into one
large terminal so that the wharf could accommodate larger ships either by
reconstructing 2,000 feet of existing wharf and constructing 1,000 feet of new
wharf to the north of existing wharves, or by constructing 1,000 feet of new
wharf to the south at berths 120-121. Adjacent portions of the channel would be
dredged to increase depth from approximately 40 feet to 50 feet. There would
also be construction of a grade separation at Neptune Avenue adjacent to berths 136-139 and 142-147 and relocation of the entrance
gates at each terminal. Berths 142-147 would be converted into a container
terminal, and backland storage would be expanded by bringing berth 147 up to
grade with berths 142-146 and paving, removing existing railyard trackage from
pier A and paving as needed, and increasing available spaces at berths 153-155
by demolishing one transit shed and part of another and paving as needed.
Specifically, with regard to berths 97-109,
the EIR provided: "Completion of the West Basin Widening Project in 1996
will provide the Berths 97-109 area with adequate channel depth to serve modern
vessels. The proposed project would include a new single-berth wharf at Berths
98-100. The new wharf would measure approximately 300 meters (1,000 feet) in
length. Equipment and infrastructure would be added to ensure efficient
movement of cargo. Improvements required to operate the terminal at projected
levels are consistent with existing requirements regarding this property and
would require no additional environmental assessment (e.g., lighting, fencing,
and surface improvements). [P] . . . [P] The WestBasin container terminals would be served by a new railyard located at Berths
97-109. The railyard would require approximately 10 hectares (24 acres) and
would consist of four working tracks, four storage tracks, one maintenance
track and one run-around track. It will be able to accommodate two unit trains
per day."
Phase II focused on berths 97-109 and was
considered optional. It would proceed only if needed because of business
conditions or transportation needs. It contemplated acquiring properties on
Knoll Hill not already owned by the Port of Los Angeles, removing Knoll Hill, realigning Front Street and the Harbor Belt Line, paving as needed to provide additional
backland storage area, relocating entrance gate facilities to the center of the
terminal, and building a grade separation at Pacific Avenue.
The environmental impact assessment was
based on construction and operation of the entirety of the WestBasin improvement project, berths 97-109, 121-131, 136-139 and 142-147.
The 1997 EIR provided:
"This document is a Program EIR. The CEQA Guidelines ([Cal. Code
Regs., tit. 14 §] 15168) recommend that a Program EIR be prepared for a series of actions
that can be characterized as one large project and are related either (1)
geographically; (2) as logical parts in the chain of contemplated actions; (3)
in connection with issuance of rules, regulations, plans, or other general
criteria to govern the conduct of a continuing program; or (4) as individual
actions carried out under the same authorizing statutory or regulatory
authority and having generally similar environmental effects that can be
mitigated in similar ways.
"Specific activities that comprise the
WBTIP will be examined by the LAHD in the light of this Program EIR to determine whether an additional
environmental assessment must be prepared. If it is found that a later activity
would have effects that were not examined in this Program EIR, a new Initial Study would need to
be prepared. This would lead to an additional CEQA assessment or a Negative
Declaration. If the LAHD finds that no new effects would occur or no new
mitigation measures would be required, it could approve the activity as being
within the scope of the project covered by the Program EIR, and no new environmental
documentation would be needed. . . . Where subsequent activities involved
site-specific operations, the LAHD would use a written checklist or similar
device to document the evaluation of the site and the activity to determine
whether the environmental effects of the operation were covered in the Program EIR."
2000 SEIS/SEIR
In September 2000, the United States Army
Corps of Engineers, Los Angeles District (USACE), finalized the SEIS/SEIR,
titled "Port of Los Angeles Channel Deepening Project." The purpose of the SEIS/SEIR was to
analyze "project-specific impacts of deepening the InnerHarbor channels of the Port of Los Angeles to accommodate the most modern vessels in the commercial container
fleet." The SEIS/SEIR was prepared in contemplation that it would be used
in connection with a feasibility study (FS) to "serve as the Biological
Assessment in association with the Federal Endangered Species Act." It
then set out the "Intended Uses" of the SEIS/SEIR:
"An FS is being conducted by LAHD and
USACE in accordance with Section 203 of the Water Resources Development Act of
1986 (P.L. 99-662). The purpose of the FS is to determine the federal interest
in deepening the Main Channel of the Port and to determine the project design
that can be designated the National Economic Development (NED) Plan; i.e., that
plan that has the greatest net economic benefit consistent with protecting the
nation's environment.
"This SEIS/SEIR supports the proposed
federal actions described in the FS. The USACE's Record of Decision (ROD)
resulting from consideration of the FS and this SEIS/SEIR will formally
document USACE's decision on the proposed action. . . . [P] . . . [P]
"LAHD may also use this assessment as
a basis for later approval of portions of a project not identified in the
Recommended Plans. Specifically this could include construction of
approximately 75 acres of fill at the Southwest Slip (see Alternative -53'-8)
or construction of up to 80 acres of fill at the Pier 300 expansion area (see
Alternative -53'-1).
"The LAHD seeks federal participation
in deepening channels of the InnerLos AngelesHarbor and placing dredge material at a number of disposal sites. Disposal at
some sites would create new landfills that would provide additional backlands
for existing container terminals. The LAHD would use this document for
discretionary actions associated with the proposed project. The LAHD may use
the SEIS/SEIR as a basis for obtaining Department of Army and other permits
necessary to construct the proposed project should the LAHD elect to proceed in
advance of the USACE in construction of part or all of the proposed project.
"The SEIS/SEIR also will be used by
the LAHD for obtaining necessary Port Master Plan Amendments from the California
Coastal Commission."
Under "Purpose and Need," the
SEIS/SEIR noted that a newer generation of container ships was being developed
with drafts expected of up to 52 feet and that a "deeper channel is
necessary to provide these ships with adequate under-keel clearance to
accommodate vessel design requirements." The SEIS/SEIR reviewed the
history of development of the Port of Los Angeles and various projects to improve the port beginning in 1992, including
"the West Basin Transportation Improvements Project."
Specifically, the SEIS/SEIR identified four
areas that would receive the dredged material for fill, one of which was
identified as the proposed "Southwest Slip Fill Site." This is
located between berths 97-109 and 121-131, within the WBTIP, which was the
subject of the 1997 program EIR. It identified two possible uses of
the fill at this location. The first would be a disposal site "to create
approximately 35 acres of new land . . . [which] . . . could be used as a
Confined Disposal Facility for contaminated dredge material . . . [and] for
container terminal storage." The alternative was to "construct a
larger (75-acre) landfill to provide more backlands and allow construction of
an additional container wharf." But this "would only be implemented
if the GATX facility at Berths 118-119 were to be made a remote facility,
relocated, or decommissioned."
Regarding future use of this fill area, the
SEIS/SEIR stated: "Depending on the alternative, new container terminal
backlands would vary from 35 to 115 acres in size and would have a maximum
throughput capacity of approximately 120,500 to 396,000 containers per year
(see Table 1.5-5). The container terminal backlands would operate 260 days per
year. The number of employees required to operate new backlands would vary
according to disposal alternative, as shown on Table 1.5-5."
Table 1.5-5 provided estimated alternative
impacts for different acres given different dredging depths in four categories:
"Annual Throughput Capacity (containers)"; "Truck Operations (daily
trips)"; "Rail Operations (railcars)"; and "New Container
Terminal Employees (day/night)." For each depth, the same impacts were
estimated if the 35-acre option would be utilized: 120,462 additional
containers; 378 additional daily truck trips; 17 additional railcars; and 34/12
day/night employees.
Based on the exhibits attached, the fill
would be placed in the current channel between berths 97-109 and 121-131. If
the 35-acre option were elected, it would add fill to berths 97-109 toward
berths 121-131. If the 75-acre option were used, it would completely fill in
the channel between berths 97-109 and 121-131.
The SEIS/SEIR addressed the potential
environmental impact of the dredging and filling operations as well as the
estimated environmental impacts of operations on the 35-acre fill option if it
were to be utilized for container storage based on depths of between -50 feet
MLLW (mean lower low water) and -53 feet MLLW. The amount of cargo handled for
each depth was expected to be the same, "205,000 TEU's" (20-foot
equivalent units). Additional assumptions were made. As pertinent, it was
assumed that "[c]ontainer vessel loading and unloading operations would
occur during two eight-hour shifts per day when a ship is at berth. Vessel
hoteling durations were calculated by multiplying the vessel service time by 24
hours/16 hours. Since cargo handling operations would occur for two eight-hour
shifts per day, the vessel would be at berth in stand-by mode for the remaining
eight hours of a day. . . . [P] . . . Two tugboats would assist the berthing of
each container ship for a total of 2.3 hours per ship visit. [P] . . . The yard
equipment associated with this activity would include two rubber-tired gantry
cranes, two top picks, and 24 hostlers, all diesel-powered. [P] . . . [P] It is
expected that by completion of the -50' MLLW channel, larger and fewer vessels
would ship container cargo through the Port."
On November 22, 2000, the Board of Harbor Commissioners of the City of Los Angeles approved the LAHD's Port of Los Angeles Channel Deepening Project.
The China Shipping Project
In 2001, China Shipping was an invitee of
Yang Ming Marine Transport Corporation, which had a lease for its own container
terminal in the Port of Los Angeles at berths 127-131. China Shipping grew, and consequently requested to
lease its own terminal at the port.
The LAHD negotiated a long-term lease with
China Shipping "for development and use of waterfront properties in the
former Todd Shipyard and Chevron areas of the West Basin in the Port of Los
Angeles," which contemplated construction of improvements for and
operation of a container facility at berths 100 and 102. The lease was to be
effectuated by issuance of a permit to China Shipping.
On February 26, 2001, an environmental assessment for the terminal proposed by China
Shipping was requested. On March 27, the LAHD issued a memorandum stating that
the assessment was completed, and that the "elements contained in the
lease have been adequately assessed in the [1997] West Basin Transportation
Improvements Program EIR . . . and have been adequately
assessed in the [2000] Port of Los Angeles Channel Deepening EIS/EIR. . . . As such, the Director of
Environmental Management has determined that the proposed activity is
exempt" from CEQA.
Meanwhile, on March 8, 2001, a City memorandum indicated that a proposed permit regarding the
three-phase construction project was approved by the Los Angeles City
Attorney's Office and accepted by China Shipping. The memorandum stated that
the landfill will come from the dredge from the channel deepening project
approved in the 2000 SEIS/SEIR. The memorandum stated, "Due to
interference that ongoing phased construction will have on [China Shipping's] operations, . . . completion of the two-berth, 110-acre
terminal . . . is anticipated to be March 2005."
On March 28, 2001, the Board of Harbor Commissioners of the City of Los Angeles adopted order No. 6722 approving permit No. 999.
Permit No. 999, called an
"Agreement," was entered into between the City and China Shipping on May 8, 2001. It granted China Shipping the "preferential right" to use
berths 100 and 102 and approximately 110 acres of wharf and backlands, and the
"secondary right" to use berths 121-131 under permit No. 787. It was
for a term of 25 years and contemplated a three-phase project. Phase I
contemplated delivery of a container terminal of 75 acres at berth 100 with a
wharf of 1,200 feet in length to be delivered no later than November 2002. n3
Phase II contemplated an addition of 200-400 lineal feet to berth 100 and
placing 35 acres of dredge material for landfill contiguous to berth 100 for
the addition of berth 102, anticipated to be completed by March 2005. n4 Phase III contemplated future expansion and
provided that the City would make available a minimum of 24 acres of backland
contiguous to the terminal area.
Each berth was to be constructed to
accommodate a 9,100-TEU vessel. Phase I contemplated installation of four
cranes for the initial 1,200 feet of wharf. An additional crane was expected
upon delivery of the second wharf, and a total of 10 cranes after completion of
both berths. Necessary supporting infrastructure was also contemplated.
Acknowledging that China Shipping
"does not directly control the trucks serving the terminal," the
permit nevertheless provided that China Shipping "will make its best
effort to notify truck drivers, truck brokers and trucking companies, that
trucks serving the terminal must confine their route to the designated
Wilmington Truck Route of Alameda Street and 'B' Street; Figueroa Street from
'B' Street to 'C' Street; and Anaheim Street east of Alameda Street."
Soon after permit No. 999 was entered into,
on May 15, 2001, the City
prepared a notice of determination. The notice stated that on May 9, 2001, the Los Angeles City Council approved the project and determined that
the approval was part of the WBTIP analyzed in the 1997 EIR and the Port of Los Angeles Channel Deepening Project analyzed in the 2000 SEIS/SEIR. The notice further stated that the city
council "has determined that no additional CEQA document should be
prepared in connection with" approval of the China Shipping project, and
that mitigation measures "were previously adopted and will be imposed in
connection with construction and operation at the site."
Apparently concerned that not all
environmental issues had been addressed, the City and China Shipping entered
into a "side letter agreement" which was approved by the city council
on July 18, 2001. The letter
agreement specifically addresses concerns related to operation of the China
Shipping Terminal as follows: emissions from container ships entering,
maneuvering and hoteling in the harbor; emissions from tugboats assisting ships
to the China Shipping Terminal; emissions and congestion from container traffic
at the terminal; emissions and congestion of truck traffic to and from the
terminal; availability of off-peak delivery service to and from the terminal;
and emissions resulting from use of "On-Dock" equipment. The letter
provides that China Shipping and the Port will use their best efforts to
minimize negative environmental impacts in these areas of concern. n5
On October 10, 2001, the Port of Los Angeles granted a coastal development permit to begin construction of phase I,
the container terminal at berth 100.
The Superior Court Proceedings
Opposed to the China Shipping project, appellants petitioned
the superior court for a writ of mandate seeking to have the court set aside
approval of the coastal development permit for phase I of the China Shipping
project and to enjoin respondents from "taking any action to construct any
wharves, buildings or structures or to develop or alter the Project site in any
way until a lawful approval is obtained from Respondents after the preparation
and consideration of an EIR."
The trial court agreed with respondents that phase I of the
Project was covered by the 1997 program EIR and denied the relief requested. As
pertinent, we quote from the trial court's written decision regarding its
rationale: "As noted earlier, Respondent here contends that § 21166 and
substantial evidence test apply herein rather than § 21094(c), because Phase I
of the China Shipping Terminal project is within the scope of the project,
program or plan described in the 1997 WBTIP Program EIR. Respondent acknowledges that
additional environmental evaluation is required as to Phases II and III." (Italics
added.) The decision closed as follows: "As Respondent acknowledges that
an EIR is required for Phases II and III of the China Shipping Project, the
Petition for Writ of Mandate as regards said phases is moot and/or premature.
[P] The Petition for Writ of Mandate is denied."
Court of Appeal Proceedings
Appellants filed a petition for writ of supersedeas seeking
to stay construction and operation of the China Shipping project during the
appeal process. On August 2, 2002, we conducted a
hearing on the matter and denied the request but ordered the appeal expedited
and set it for hearing on October 18, 2002.
On October 18, after hearing argument, we indicated an
intent to issue a stay on our own motion pursuant to Code of Civil Procedure
section 923 and we asked counsel to provide us further briefing. n6 We received
further briefing, including declarations, on October 21, 2002.
On October 23, 2002, we issued the following stay, currently
in effect:
"Pursuant to Code of Civil Procedure section 923, and
pending further order by a court of competent jurisdiction, the court hereby
issues a stay effective immediately of portions of the China Shipping Project
which is the subject of appeal No. B159157, as follows:
"1. Completion of the wharf at Berth 100 beyond 1,000
feet, currently estimated to be completed by December 20, 2002;
"2. Erection and operation of the cranes currently scheduled
to be delivered within the next few weeks;
"3. Operation of Phase I of the China Shipping Project;
"4. Construction and operation of Phases II and III of the China Shipping Project.
"THIS STAY DOES NOT PREVENT: completion of the storm
drain system; completion of the backlands including security fences, permanent
lights and power; use of the backlands for container storage; offloading and
storage of the cranes at Berth 100."
DISCUSSION
The essential issues to be addressed are fairly simple:
whether the China Shipping project falls within the scope of prior
environmental review; and, if so, what further environmental review is
required, if any, before the port completes the Project.
Appellants argue that the 1997 program EIR was insufficient to encompass any
portion of the China Shipping project and that a separate EIR is required pursuant to section
21151 addressing all three phases of the Project. As a fall back position,
appellants argue that the program EIR qualifies only as the first step of
"tiered" environmental review pursuant to section 21094 and that a
complete "project" EIR must be prepared in connection with
all three phases of the China Shipping project.
As noted above, the port convinced the trial court that the
1997 program EIR covered phase I of the Project and that any further review was
controlled by section 21166. Before us, the port argues that the 1997 EIR and the 2000 SEIS/SEIR are
sufficient to cover all phases of the Project. The port's position is supported
neither factually nor legally.
Subdivision (a) of section 15168 of California Code of
Regulations, title 14 (Guidelines) defines a "program EIR" as "an EIR which may be prepared on a series
of actions that can be characterized as one large project and are related
either: [P] (1) Geographically, [or] [P] (2) As logical parts in the chain of
contemplated actions." (Italics added. ) The 1997 EIR generally addresses improvements
contemplated within the WBTIP, the geographical area where the China Shipping
project is located. But the China Shipping project did not arise until after
the 1997 EIR had been completed. Thus, it could not have qualified as one of the
series of actions contemplated when the 1997 EIR was prepared. Additionally, an
environmental assessment was first requested for the China Shipping project on February 26, 2001, five months after the 2000 SEIS/SEIR was finalized by the USACE. There
is no evidence that any site-specific environmental issues related to the China
Shipping project were addressed in either the 1997 EIR or the 2000 SEIS/SEIR.
Subdivision (c) of Guideline 15168 requires subsequent
activities to be examined "in the light of the program EIR to determine whether an additional
environmental document must be prepared. [P] (1) If a later activity would have
effects that were not examined in the program EIR, a new
initial study would need to be prepared leading to either an EIR or a negative
declaration. [P] (2) If the agency finds that .
. . no new effects could occur or no new mitigation measures would be required,
the agency can approve the activity as being within the scope of the project
covered by the program EIR, and no new environmental document
would be required." (Italics added.) The fact that the port and China
Shipping entered into a side letter agreement addressing site-specific
environmental concerns arising from this Project provides adequate support for
appellants' argument that the port was required to prepare an initial study
leading to either preparation of an EIR or a negative declaration for this
Project. This was not done.
A program EIR does not always suffice for a later
project. Sometimes a "tiered" EIR is required (§ 21094), sometimes a
"subsequent or supplemental" EIR is required (§ 21166), and
sometimes a "supplement" to an EIR is required. (§ 21166; Guidelines,
§§ 15162, 15163.)
As pertinent, section 21166 provides: "no subsequent or
supplemental environmental impact report shall be required by the lead agency .
. ., unless one or more of the following events occurs: [P] (a) Substantial
changes are proposed in the project which will require major revisions of the
environmental impact report. [P] (b) Substantial changes occur with respect to
the circumstances under which the project is being undertaken which will
require major revisions in the environmental impact report. [P] (c) New
information, which was not known and could not have been known at the time the
environmental impact report was certified as complete, becomes available."
The Guidelines contemplate a "subsequent" EIR for an already existing project
that is approved in an EIR and that later experiences
"substantial changes" either in the project or in the circumstances
in which the project will be undertaken. (Guidelines, § 15162.)
A "supplement" to an EIR is used instead of a
"subsequent" EIR if a subsequent EIR is necessary and "[o]nly minor
additions or changes would be necessary to make the previous EIR adequately apply to the project in
the changed situation." (Guidelines, § 15163, subd. (a)(2).) "The
supplement to the EIR need contain only the information necessary to make the previous EIR adequate for the project as
revised." (Guidelines, § 15163, subd. (b).) Given the additional scope of
the China Shipping project and the concerns addressed in the side letter agreement,
we cannot conclude that only minor additions or changes are necessary to the
1997 EIR.
Section 21094 addresses the preparation of a "tiered
environmental impact report" for a "later project" which arises
after "a prior environmental impact report has been prepared and certified
for a program, plan, policy, or ordinance." (Italics added.) Such a
report is required if the lead agency determines that the later project
"(1) is consistent with the program . . . for which an environmental
impact report has been prepared and certified, (2) is consistent with
applicable local land use plans and zoning . . ., and (3) is not subject to
Section 21166." (§ 21094, subd. (b).)
There is no evidence that the lead agency formally addressed
whether or not the China Shipping project fell within the concept of a
"tiered" EIR. We have no doubt that the Project is a "later project" as
the term is used in section 21094. Also, in its environmental assessment of February 26, 2001, the LAHD determined that the China Shipping project was compatible
with the WBTIP assessed in the 1997 EIR, thus answering items 1 and 2 in
the affirmative. Thus, the question remains whether or not the China Shipping
project is subject to section 21166. The answer to this question is
problematical because of the strategy adopted by the City in opposition to
appellants' arguments.
The written decision of the trial court establishes that the
position taken by the City was that the trial court should review the matter as
if section 21166 were applicable. The decision states that the port conceded
that an EIR was required for phases II and III of the Project. The court agreed
with the City that it should apply section 21166, that phase I of the Project
fell within the 1997 EIR, and, based on the concession,
concluded it need not address issues relating to phases II and III. In August, we conducted a hearing
on a petition for writ of supersedeas brought by appellants for stay of the
entire China Shipping project pending our review. At that time, counsel for the
City left us with the impression that the City's concession stood and that we
needed only to address supersedeas with regard to phase I. At oral argument on
the appeal, counsel for the City categorically denied that any concession had
been made either to the trial court or to us. Instead, he took the position
that the 1997 EIR covered phase I and that the 2000 SEIS/SEIR sufficiently addressed
phases II and III. n7
It really does not matter which argument we credit; neither
carries the day for the City. As previously noted, we conclude neither the 1997
EIR nor the 2002 SEIS/SEIR adequately addresses the site-specific
environmental concerns expressed in the side letter agreement. Additionally,
both scenarios raised by the City result in an improper segmentation of
environmental review.
The China Shipping project is a site-specific project to be
carried out over three phases. When a specific project contemplates future
expansion, the lead agency is required to review all phases of the project
before it is undertaken. (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal. 3d 376, 396 [253 Cal. Rptr. 426,
764 P.2d 278].) The reason for this is explained in LaurelHeights: "A fundamental purpose of an EIR is to provide decision makers with
information they can use in deciding whether to approve a proposed
project, not to inform them of the environmental effects of projects that they
have already approved. If postapproval environmental review were allowed, EIR's would likely become nothing more
than post hoc rationalizations to support the action already taken. We
have expressly condemned this use of EIR's. (No Oil[, Inc. v. City
of Los Angeles (1974)] 13 Cal. 3d [68] at p. 79, [529 P.2d 66, 118 Cal.
Rptr. 34].)" (Laurel Heights, supra, 47 Cal. 3d at p. 394, italics
in original.)
If we accept the City's argument made to the trial court,
that phase I of the Project falls within the 1997 EIR, and its concession that a new EIR is being prepared with regard to
phases II and III, this is improper segmentation. If we accept the argument made before
us that phase I is covered under the 1997 EIR and phases II and III are covered under the 2000
SEIS/SEIR, this is also improper segmentation.
In any event, we cannot conclude that section 21166 applies.
The China Shipping project arose more than three years after the 1997 EIR and was not specifically addressed
in the 2000 SEIS/SEIR. It cannot be considered part of the overall
"project" addressed in those documents. We conclude that the most
appropriate way to address the China Shipping project is by preparation of a
"tiered" EIR addressing all three phases of the Project.
"Tiering" refers "to the coverage of general
matters in broader EIRs (such as on general plans or policy statements) with
subsequent narrower EIRs or ultimately site-specific EIRs incorporating
by reference the general discussions and concentrating solely on the issues
specific to the EIR subsequently prepared. Tiering is appropriate when the sequence of EIRS
is: [P] (a) From a general plan, policy, or program EIR to a . . . site-specific EIR." (Guidelines, § 15385,
italics added.)
The Legislature encourages tiering of EIR's where applicable. "(a) The
Legislature finds and declares that tiering of environmental impact reports
will promote construction of needed housing and other development projects by
(1) streamlining regulatory procedures, (2) avoiding repetitive discussions of
the same issues in successive environmental impact reports, and (3) ensuring
that environmental impact reports prepared for later projects which are
consistent with a previously approved policy, plan, program, or ordinance
concentrate upon environmental effects which may be mitigated or avoided in
connection with the decision on each later project. The Legislature further
finds and declares that tiering is appropriate when it helps a public agency to
focus upon the issues ripe for decision at each level of environmental review
and in order to exclude duplicative analysis of environmental effects examined
in previous environmental impact reports. [P] (b) To achieve this purpose,
environmental impact reports shall be tiered whenever feasible, as determined
by the lead agency." (§ 21093.)
Appellants also contend that the China Shipping project
violates the City of Los Angeles General Plan as well as the central policy of the port, and the San Pedro and
Wilmington-Harbor city plans. Each of these plans and the policy of the port
declares that development is to be consistent with minimizing environmental impacts.
Because the port has failed to proceed in accordance with CEQA, it cannot be
ascertained whether the China Shipping project violates the plans and the
policy of the port.
DISPOSITION
The judgment of the trial court is reversed. The matter is
remanded to the trial court with directions that it grant the petition for writ
of mandate and order the port to prepare an EIR in connection with all three phases
of the China Shipping project and to issue an injunction incorporating the
terms of our stay issued October 23, 2002, until further order from a court of
competent jurisdiction. Costs on appeal are awarded to appellants.
Vogel (C. S.), P. J., and Epstein, J., concurred.
FOOTNOTES n1 Further statutory references will be to
the Public Resources Code unless otherwise noted. n2 Bozung was superceded by statute
with respect to the issue of designation of a lead agency. (City of Redding
v. Shasta County Local Agency Formation Com. (1989) 209 Cal. App. 3d 1169,
1177 [257 Cal. Rptr. 793].) n3 This is not the same 75 acres
contemplated with the 2000 SEIS/SEIR.
n4 This is similar to the 35-acre option
contemplated in the 2000 SEIS/SEIR. n5 For example, one of the items promised
by China Shipping states: "Marine container vessels owned by China
Shipping Line will study the feasibility of joining in the NOx Engine Standards
for Ocean Going Marine Vessels adopted by the International Maritime
Organization as part of Annex VI of MARPOL 73/78. If feasible, marine container
vessels owned by China Shipping Line will apply for EPA certified 'Statement of
Voluntary Compliance to the MARPOL Annex VI NOx Limits." (We omit a
footnote reference to "International Maritime Organization of the United
Nations, 1997, MARPOL 73/78, Annex VI--Marine Diesel Engine
Requirements.") One of the items the Port of Los Angeles committed to was to "support
regulatory and legislative changes that will assist China Shipping, and all
other terminal operators, in making the transition to cleaner fuels and
engines." n6 That section provides: "The
provisions of this chapter shall not limit the power of a reviewing court or of
a judge thereof to stay proceedings during the pendency of an appeal or to
issue a writ of supersedeas or to suspend, or modify an injunction during the
pendency of an appeal or to make any order appropriate to preserve the status
quo, the effectiveness of the judgment subsequently entered, or otherwise in
aid of its jurisdiction." n7 He did concede that the City was
cooperating with other agencies in preparation of an EIR for phases II and III, but urged that it was not required
under law to do so. Whether such a concession was made is problematical at
best. At worst, it casts significant doubt on the integrity of the arguments
proffered by the City. We could view this reversal of position as significantly
undermining the trial court's conclusion that the issues relating to phases II
and III were moot or premature and remand the matter for further
proceedings. But to do so would only unnecessarily prolong the suspense all
parties are currently experiencing over the Project.
This file last modified on: Wednesday, May 25, 2005.