EIR illustration

Assistant City Attorney Mike Mais tells LBREPORT.com that although the Court of Appeal reversed some portions of the trial court's ruling, it agreed with the trial court (and the City of LB's position) that the EIR must re-analyze portions related to air quality and cumulative impacts and formulate mitigation measures.

To view the Court of Appeal's Jan. 12, 2018 opinion in full, click here.

[Scroll down for further.]

Mr. Mais noted that the City of Long Beach was one among a number of parties -- including NRDC and SCAQMD -- that urged the appeals court to uphold the trial court's ruling in full...and the City of LB (and those taking similar positions) have until Feb. 12 to petition the CA Supreme Court to reinstate portions of the trial court ruling. (It's also possible that the City of L.A. could seek CA Supreme Court review, arguing that it shouldn't have to revise the EIR in any respects.)

The CA Supreme Court rarely grants review (only in about 5% of cases, its website says.) If the CA Supreme Court declines to grant review in the SCIG case, the City of L.A. could add data and text to its "Environmental Impact Report" (EIR) regarding air quality and cumulative impacts, hold some hearings and ultimately vote (again) to approve the project.

In other words, the SCIG railyard can't immediately advance...but the City of L.A. is in a position to restart the process and try to conclude the EIR process that could enable the railyard to proceed.

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Mr. Mais said he expects the City of LB and other parties sharing LB's position on the EIR will hold telephone discussions in the coming days to discuss how to proceed...and he said it's likely a closed session of the City Council will be scheduled to discuss the matter. [The Council's next scheduled meeting date is Feb. 6.] In that closed session, the City Council could make fateful choices on how to proceed...that the public would eventually learn (including voted yeas and nays.)

The WLB Association, Wrigley-area groups, plus regional environmental and health groups, have repeatedly argued that the project's impacts can't be mitigated and the SCIG railyard shouldn't be built at BNSF's proposed location. They say railyards belong in the Port(s), not next to neighborhoods and urge on-dock rail instead of the SCIG project's trucked-to-dock rail.

Regional business groups, cargo/maritime interests and politically active trade unions say the railyard will use the cleanest possible current technology, allow only cargo carried on "clean" trucks that will be routed away from neighborhoods, bring jobs and producing cleaner air regionally by using rail instead of freeway-congesting trucks. The Port of Los Angeles has said putting the proposed railyard in the Port is infeasible for reasons including a lack of currently available land in the Port.

To date, despite acknowledging the impacts of the proposed railyard on WLB residents, the City of Long Beach (through its policy setting City Council) has declined to take an up-or-down recorded vote on whether to support or oppose BNSF's proposed railyard outright.

Instead, under Mayor Foster a previous Council authorized city staff to oppose the project's Environmental Impact Report (EIR) alleging it doesn't fully describe the railyard's significant impacts and doesn't require sufficient "mitigation" for those impacts.

Ay one point Mayor Foster acknowledged that he'd made efforts to try and "settle" the case in exchange measures that weren't seriously discussed publicly.

Of what would such measures consist? Funds for WLB neighborhood groups or other westside improvements? Shrubbery? Asthma inhalers?

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Now LB's current Mayor and Council have to decide what course of action to pursue...just as LB's Mayor and Council enter a city election cycle in which four Council incumbents face ballot challengers. Among those on the ballot in April 2018 will be 7th district ( WLB/Wrigley) Councilman Roberto Uranga (facing four challengers) with Mayor Garcia widely speculated to be eyeing higher offices if he's re-elected.

As LBREPORT.com reported in August 2017, BNSF is listed in campaign and officeholder reports as having given money to Long Beach Mayor Robert Garcia and every current Long Beach Councilmember, either to their campaign committee accounts and/or to their officeholder accounts (the latter not for campaign purposes but for incumbents' expenses (events, refreshments, some travel, etc.)

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The proposed SCIG railyard has been a chronic, polarizing hot potato.

At a November 10, 2011 public hearing on the draft EIR, crowds overflowed WLB's Silverado Park community room in one of the largest turnouts in WLB history for a government-conducted meeting of its type,

Nov. 10, 2011 hearing on draft EIR

LBREPORT.com reported at the time: "Local trade union members and their leadership showed up in force, many wearing orange T-shirts and buttons, citing jobs in supporting the proposed project. At the same time, residents of impacted areas also turned out in numbers, citing health impacts, carrying opposition signs and some bringing their children with breathing problems in testifying against the project. (The actual subject matter of the hearing was adequacy of the Port of LA's draft Environmental Impact Report.)

On Dec. 6, 2011, now-retired Long Beach Councilmember Rae Gabelich and Councilman Johnson agendized an item to oppose the SCIG facility at its presently proposed location but then-9th district Councilman Steve Neal proposed a substitute motion that sought further information on the SCIG project from the Port of L.A. to be used in submitting comments by the City of LB on the draft EIR. The motion carried 8-0 (Yes: Lowenthal, DeLong, O'Donnell, Schipske, Andrews, Johnson, Gabelich and Neal; Garcia absent for entire meeting.)

On March 7, 2013, the issue reached the L.A. Harbor Commission...where Mayor Foster cited reasons why the City of LB believes the EIR is insufficient, said it fails to provide sufficient "mitigation" and benefits to offset impacts on area neighborhoods, and candidly revealed that he'd met with BNSF representatives and sought to settle the case, which proved unsuccessful.

Reaction from project opponents was swift...and less than supportive. Angelo Logan, a leader in the protests against the railyard, said Mayor Foster was "right on" in telling a Los Angeles Harbor Commission hearing that there's been little or no regard for Long Beach residents in the process, and commended the City of Long Beach's filed paperwork, but said Mayor Foster's advocacy for "mitigation" is the opposite of his group's position. Mr. Logan said, as have WLB/Wrigley area groups, that the railyard can't be mitigated in the neighborhood-adjacent location now proposed...and belongs in the Ports where it can provide on-dock rail.

Asked he believes there's some risk that Mayor Foster might try to cut a deal with BNSF for "mitigation" that could do the opposite of what Mr. Logan's group and other SCIG opponents want (settle for "mitigation" instead of relocating the railyard), Mr. Logan said "I think so."

Likewise in March 2013, David Pettit, an attorney for the Natural Resources Defense Council (NRDC) (which has also filed an appeal with the L.A. City Council on the L.A. Port-approved EIR), told LBREPORT.com that Mayor Foster's testimony at the Port of LA EIR hearing was among the best he's ever heard from him but said Foster's focus on mitigation was misguided. Attorney Pettit said the Ports of L.A. and LB can't simply claim there's no room for the railyard in the Ports. "They've used landfill before and they can and should do so here," Mr. Pettit told LBREPORT.com.

John Cross, President of the West Long Beach Association, told LBREPORT.com: "We're not against the railyard. We're against where they want to put it. It needs to be in the Ports, not in neighborhoods and we're not going to settle for planting some shrubbery that can't "mitigate" what we shouldn't have next to homes in the first place. That railyard needs to go in the Ports and not in our neighborhoods."

At one point, some WLB neighborhood reps traveled to a Berkshire-Hathaway shareholders' meeting in Omaha to try and persuade owner/CEO Warren Buffet on the issue (without success.) Some regional environmental groups have also sought to move L.A. Mayor Eric Garcetti on the SCIG railyard without success. In 2014, L.A. Mayor Garcetti endorsed Garcia for Mayor, and both have said they favor greater cooperation between L.A. County's two largest cities.

Developing.