China Shipping Conflict Continues

could ‘only’ set aside the SEIR was wrong as a matter of law.”

• “The Port’s greenhouse gas fund measure fails to meet CEQA’s standards.”

• “The Port’s deletion of the drayage truck mitigation measure without any replacement violates CEQA.”

• “The Port violated CEQA by failing to adopt all feasible mitigation for the vessel speed reduction program.”

• “The Port’s rejection of a zero-emission demonstration project for top handlers and large forklifts [violated CEQA because it] was not supported by substantial evidence.”

• “The Port improperly ignored requests to appoint an independent third party to monitor compliance with mitigation measures.”

Underlying these arguments is a profound difference in perspective. CEQA requires all feasible mitigation. To eliminate mitigation measures, or reject replacements, CEQA requires substantial evidence that it wasn’t feasible. While POLA claims to have done so, NRDC and AQMD disagree. They view the case historically, as the latest chapter in a 20+ year saga, for a 40-year project, with a seven to 12-year zero-emission target and a “rapidly changing technological landscape.” This unique set of facts conditions what counts as feasible, which CEQA defines as “capable of being accomplished in a successful manner within a reasonable period of time.” POLA interprets the italicized words narrowly, ignoring the special circumstances that NRDC and AQMD see as central to the case. For example, regarding drayage trucks, AQMD specifically argues, “The Port used an unlawfully narrow definition of feasible by omitting the time component required by the statute.”

Here’s a summary of the specific arguments on each side:

Remedy

NRDC and AQMD argue that the remedy ruling was wrong as a matter of law, which gives the appeal court the power to review it “de novo” — without deference to the trial court’s decision as if the case was being heard for the first time.

POLA argues that “CEQA affords the trial court discretion to tailor writ relief,” which the court did “properly.” Thus the appellate court should not review it “de novo,” but only consider if the court abused its discretion.

But if it’s wrong as a matter of law, that’s a judicial error, not an abuse of discretion.

It sounds hyper-technical, but it all boils down to this: should POLA — and China Shipping — be required to follow the law?

“The Port does not—and cannot—show how a requirement to implement mitigation at the conclusion of a new SEIR process years from now remedies the CEQA violation of the Terminal operating without full mitigation today,” AQMD wrote. “Because the trial court did not adopt a remedy that requires CEQA compliance, that remedy is deficient.”

Greenhouse Gasses

NRDC argues that “The Port’s greenhouse gas fund [lease] measure fails to meet CEQA’s standards,” saying that, “First, the amount is woefully insufficient” — $2 million to pay for one year of CO2 emissions (2030) at “the current

[2019] market value of carbon credits ($15.62)” which “leaves the majority of greenhouse gas emissions from the decades-long project unmitigated.” In short, “The Port does not explain why China Shipping should pay for only a single year’s worth of climate effects, rather than for all years’ worth.” And, “Second, the measure is also flawed because it lacks sufficient restrictions on where any offsets may come from, and accordingly fails to ensure those offsets are real, ‘enforceable,’ and ‘not otherwise required.’”

POLA’s “kings X” defense argues that none of that matters, because it’s a lease measure, not evaluated as a mitigation measure, thus not covered by CEQA, and it talks about the other greenhouse gas measures it has.

In response, NRDC calls that “semantic maneuvering [that] fails to relieve the Port of its duty to comply with CEQA,” noting that “the record shows that the Port found such payments to constitute feasible mitigation for the project’s significant greenhouse gas emissions … in its Findings of Fact and Statement of Overriding Considerations.”

Vessel Speed Reduction

AQMD argues that POLA “violated CEQA by failing to adopt all feasible mitigation for the vessel speed reduction program,” specifically by lowering the required compliance rate from 100% to 95% for ships within 40 nautical miles.

POLA argued that the original requirement was dropped because it “determined that 100% compliance is operationally infeasible because it failed to take into account conditions outside of the control of the Terminal operator or other issues.” It also pointed to the historical compliance record.

AQMD responded that “Under the Port’s constricted interpretation of ‘feasibility,’ the SEIR would only require mitigation that would uphold China Shipping’s existing pattern of environmental negligence.” It also pointed out that “other major terminals have already determined 100% VSRP compliance to be feasible under CEQA,” and that “the Terminal’s own data tracks rising VSRP compliance over time. … In fact, China Shipping achieved greater than 95% compliance in four of the last six years included in the administrative record.” What’s more, AQMD argued, “even assuming 100% is infeasible, the compliance rate could have been set at 98%, the rate actually achieved at the Terminal.”

Drayage Trucks

AQMD argues that POLA’s “deletion of the drayage truck mitigation measure without any re- placement violates CEQA” and that it “used an unlawfully narrow definition of ‘feasible’ to reject every near-zero or zero-emission technology to mitigate drayage truck emissions,” specifically by “entirely disregarding the phrase ‘within a reasonable period of time.’”

POLA chose to emphasize something else, arguing that AQMD “ignores that ‘feasibility’ under CEQA is defined as ‘capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors,’” [emphasis added] adding, “Here, the evidence shows, when the SEIR was prepared, the technology was simply not there yet for Terminal-specific implementation, but there was a foundation for a Port-wide program.”

As noted above, AQMD countered this argument by focusing on the “reasonable period of time.” While POLA had argued that feasibility “is not an open-ended inquiry,” AQMD noted that “importantly zero-emission drayage technology has a precise end point—100% by 2035—that the Port itself set in its 2017 Clean Air Action Plan.”

Cargo-Handling Equipment

NRDC argues that POLA’s “rejection of a zero-emission demonstration project for top handlers and large forklifts was not supported by substantial evidence.”

POLA argued that — except for smallcapacity five-ton forklifts — “zero-emissions cargo handling equipment are … not commercially or technically viable, or not yet a demonstrated, proven technology for the specialized needs of a marine terminal,” and that it was supported by substantial evidence.

But NRDC argued that “If anything, current infeasibility only bolsters the argument for demonstration projects,” particularly “[given the unique facts of this case—the rapidly changing technological landscape, the 40-year life of the project, and the Port’s own goal of all zero-emission cargo handling equipment by 2030,” plus the fact that demonstration projects were already scheduled at the Ports of LA and Long Beach as of 2018.

A key point of contention was what counted as “a reasonable period of time” for technology to become feasible. POLA defined