Fed. Court Issues Temporary Restraining Order, With Ruling Expected In Days On Whether To Grant Preliminary Injunction, Halting Construction of Massive L.A. Port Container Terminal
Enviro Suit Says Army Corps of Engineers OK'd Permit for L.A. Port Without Properly Assessing Pollution Impacts
(July 23, 2002) -- In a ruling that could be a preview of a history making federal court injunction over diesel pollution from the L.A. harbor, a federal court judge has issued a Temporary Restraining Order (freezing the status quo), with a ruling expected in the next few days on whether or not to issue a preliminary injunction, halting construction of a massive 134-174 acre container terminal at the Port of Los Angeles.
The Natural Resources Defense Council (NRDC), two other environmental groups and two San Pedro area homeowners groups (details below) filed suit last month alleging the Army Corps of Engineers improperly allowed the Port of L.A. to proceed with a massive container terminal project without properly considering the full pollution impacts, including diesel emissions.
We post the verbatim text of the complaint, as well as its salient allegations, below.
The suit alleges the project will create two new container wharves to accommodate some of the largest ships in the world, over 100 acres of storage and two new bridges for up to four lanes of truck traffic. It says estimates by L.A.'s Port indicate the new terminal would receive hundreds of commercial container vessels every year for China Shipping Holding Company, Ltd. and would serve as the new western "hub" of the company’s global container operations.
Today's court ruling by Federal District Judge Margaret Morrow stops construction until week's end when the Court is expected to rule on whether or not it will issue a preliminary injunction halting construction of the project until the case is decided. The Judge explicitly cautioned that in granting the Temporary Restraining Order (preserving the status quo for a few days) it was not signaling one way or the other whether it would issue a preliminary injunction.
NRDC brought suit under the National Environmental Policy Act (NEPA), a federal law similar to the CA Environmental Quality Act, which essentially requires government bodies to fully and publicly assess a project's environmental impacts before allowing the project to proceed. The suit alleges the Corps of Engineers and City of L.A. violated NEPA by permitting the Port of L.A. to construct a new container wharf that will be part of a new massive shipping terminal without properly considering the harmful impacts of the project in an environmental impact statement (EIS).
NRDC Senior Project Attorney Julie Masters told LBReport.com the suit alleges the Army Corps of Engineers should have assessed impacts from almost 100 large container vessels that would be sources of pollution, and roughly 200 diesel tugboats, and the offloading of containers, and other activities involved in Port related traffic to and from the site.
"The new terminal would lead to a dramatic increase in diesel emissions -- a known human carcinogen -- in the nearby communities of San Pedro and Wilmington from the increased number of diesel ships, tugboats, on-site equipment and as many as one million additional truck trips generated each year," NRDC said in a previously issued release. The Corps granted the permit on April 19, 2002 for phase one and construction started in June, triggering the lawsuit.
At issue in the suit is the plaintiffs' contention that the Corps was required under federal law to assess the environmental impacts of the entire three-phase project before considering whether to issue a permit to construct the first wharf. Instead, the Corps limited its review of the project to impacts from only the physical construction of the first wharf. Based on this narrow scope of review, the Corps concluded the project did not require an EIS. However, the groups argue the cumulative impact of the operations of the entire project warrant a full EIS.
"The Army Corps approved this permit with blinders on to the dramatic impacts its actions will have on local communities," said Ms. Masters in a June release. "This will mean dramatically more pollution and truck traffic in the local communities’ backyards."
LBReport.com posts the complaint (in HTML form) on a link below. Among its salient allegations:
...36. ...[T]he Port has estimated that about 100 huge container vessels would dock at the Berth 100 Wharf every year. These container vessels would require the assistance of over a hundred diesel tugboats to dock and leave the Port, and would bring hundreds of thousands of container units to the site every year, thereby generating a significant increase in activity on the adjacent upland area, including the use of diesel trucks, diesel yard tractors, and trains to transport these containers to and from the Project site.
37. The increased container, ship, truck, equipment, and related activity would result directly from the construction and operation of the Berth 100 Wharf and would significantly increase the quantity of diesel fumes and other air pollution that would be emitted into the surrounding communities of San Pedro and Wilmington. In 1998, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment ("OEHHA") determined that diesel exhaust particulate is a "toxic air contaminant" under Health & Safety Code Section 39655 because of the cancer risk it poses. More recently, the South Coast Air Quality Management District concluded as part of its Multiple Air Toxic Exposure Study II ("MATES II") that diesel exhaust is responsible for more than 70 percent of the cancer risk in the South Coast Air Basin from breathing polluted air.
38. In addition, the intensive truck and container movement on the adjacent upland area as a result of the operation of the Berth 100 Wharf would cause significant impacts on traffic and noise in the surrounding communities, and polluted stormwater run-off from the developed site would impact water quality. Further, stacked containers on the upland terminal area and the enormous cranes that would be used in the container operations would obstruct the San Pedro community’s views of the harbor and channels, thereby impacting aesthetic values. Moreover, the close to one hundred additional container vessels that would dock at the Berth 100 Wharf every year and the potentially hundreds of tugboats that would assist those vessels would significantly affect vessel traffic, and the location of all of this ship activity-right on the edge of the main turning basin for the West Basin Region of the Port of Los Angeles-could significantly affect a federal navigation channel. All of these impacts are likely to significantly affect the human environment and must be assessed by the Army Corps in a single EIS.
39. In addition, the Port has estimated that as many as 260 huge container vessels would call at the full China Shipping Project when Wharf 2 and the entire 134-174 acre terminal complex are completed. These container vessels would require the assistance of hundreds of diesel tugboats to dock and leave the Port, and would bring 850,000 to 1.5 million container units every year, thereby generating a significant increase in the use of on-site diesel trucks, diesel yard tractors, and rail to transport these containers to and from the terminal.
40. The increased container, ship, truck, equipment, and related activity would result directly from the construction and operation of the full China Shipping Project and would significantly increase the quantity of diesel fumes and other air pollution that would be emitted into the surrounding communities of San Pedro and Wilmington. In addition, the intensive truck and container movement in and around the Project site as a result of the operation of the full China Shipping Project would cause significant impacts on traffic and noise in the surrounding communities, and polluted stormwater run-off from the developed site would impact water quality. Further, stacked containers and the enormous cranes that will be part of the Project will obstruct the San Pedro community’s views of the harbor and channels, thereby impacting aesthetic values. Moreover, the hundreds of additional container vessels that would dock at the full China Shipping Project every year and the hundreds of tugboats that would assist those vessels would significantly affect vessels traffic, and the location of all of this ship activity-right on the edge of the main turning basin for the West Basin Region of the Port of Los Angeles-could significantly affect a federal navigation channel. All of these impacts are likely to significantly affect the human environment and must be assessed by the Army Corps in a single EIS.
41. Construction of the Berth 100 Wharf, as well as of the rest of the China Shipping Project, may have other significant impacts on the environment and public health that must be assessed by the Army Corps in an EIS.
42. The Project site is located remarkably close to, and in view of, the nearby communities of San Pedro and Wilmington, which already are disproportionately affected by air pollution, noise, traffic and other environmental impacts. The closest residences are approximately 500 feet from the property line and an elementary school is also situated close to the site. According to the MATES II study, Wilmington and San Pedro residents experience some of the highest cancer risks in the South Coast Air Basin from breathing polluted air. Moreover, Wilmington is a predominantly low-income Latino community; according to the 2000 Census, the Wilmington portion of Los Angeles is 86.74 percent Latino and nearly 92 percent people of color. The environmental justice and cumulative impacts of the Project, as well as the Project’s proximity to residential neighborhoods, must also be examined in an EIS.
Plaintiffs in the suit are the Natural Resources Defense Council, San Pedro and Peninsula Homeowners' Coalition, San Pedro Peninsula Homeowners United, Inc., Coalition for Clean Air, Incl. and Communities for a Better Environment.
Defendants include the Army Corps of Engineers, the City and Port of Los Angeles.
The text of the complaint can be viewed (in HTML form) at: Complaint, NRDC v. Corps of Engineers, et al.