UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
SAN PEDRO AND PENINSULA HOMEOWNERS’ COALITION,
SAN PEDRO PENINSULA HOMEOWNERS UNITED, INC.,
COALITION FOR CLEAN AIR, INC.,
and COMMUNITIES FOR A BETTER ENVIRONMENT,Plaintiffs,v.
UNITED STATES ARMY CORPS OF ENGINEERS,
an agency of the United States;
LT. GENERAL ROBERT B. FLOWERS,
in his capacity as Commander and Chief Engineer
of the United States Army Corps of Engineers;
COL. RICHARD G. THOMPSON, in his capacity as
District Engineer of the
United States Army Corps of Engineers;
CITY OF LOS ANGELES, a Municipal Corporation;
PORT OF LOS ANGELES;
and LOS ANGELES BOARD OF HARBOR COMMISSIONERS,DefendantsCOMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT
AND THE ADMINISTRATIVE PROCEDURE ACTINTRODUCTION 1. This action challenges the decision of defendant United States Army Corps of Engineers, under the direction of its Commander and Chief Engineer, Lt. General Robert B. Flowers, and its District Engineer, Col. Richard G. Thompson (collectively, the "Army Corps"), to issue a dredge, fill and construction permit under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act (the "Permit") to defendant Port of Los Angeles (the "Port"). This Court has subject matter jurisdiction over the claims set forth in this Complaint pursuant to, inter alia, 28 U.S.C. §1331 (federal question jurisdiction) and 5 U.S.C. §702 (Administrative Procedure Act). The relief sought is authorized by 28 U.S.C. §2202 (injunctive relief).
2. The Permit at issue in this case authorizes the construction of a new 1,200 foot concrete container wharf at Berth 100 of the Port (the "Berth 100 Wharf"), which will alone create significant impacts from its construction and operation, and will also enable the construction and operation of a massive new container terminal complex at berths 97-109 of the Port that has been leased to China Shipping (North America) Holding Co., Ltd. (the "China Shipping Project").
3. The Port and City of Los Angeles approved a lease for the China Shipping Project in the Spring 2001-a full year before the Army Corps issued the Permit for the Berth 100 Wharf. Under the lease, the China Shipping Project would include, inter alia, the construction and operation of two huge container wharves (including the Berth 100 Wharf), each of which would have the ability to accommodate the largest container vessels in operation today, the development of between 134-174 acres of adjacent uplands for use as a container terminal, two bridges to accommodate up to four lanes of truck traffic each, gate facilities to accommodate up to 8 inbound and 4 outbound lanes of truck traffic, and the use of enormous container cranes.
4. The Berth 100 Wharf and remainder of the China Shipping Project would be constructed on a site that has remained relatively dormant for over a decade. There are currently no wharves at the site capable of accommodating container vessels, no active container operations, and only minimal container storage capacity. Construction of the Berth 100 Wharf would thus allow the Port to operate berths 97-109 as an active container terminal, resulting in greatly increased container operations and polluting activity at the Port, including but not limited to the use of diesel tugboats, diesel trucks, diesel yard equipment, and trains.
5. The operation of the Berth 100 Wharf alone will have significant impacts on the environment and public health. The Port has estimated that approximately 100 enormous container vessels will dock at the Berth 100 Wharf every year, requiring the assistance of over a hundred diesel tugboats. Moreover, construction and operation of the Berth 100 Wharf would result in a significant increase in polluting activity on the adjacent upland area. According to the Port, the massive ships that would dock at the Berth 100 Wharf would bring hundreds of thousands of container units to the adjacent site, causing a marked increase in the use of diesel trucks, diesel yard equipment, and trains to transport the containers to and from the site.
6. Finally, the Port has estimated that the entire China Shipping Project, once constructed, would receive as many as 250 container vessels every year, delivering from 850,000 to 1.5 million container units every year, and employing hundreds of diesel tugboats each year to bring these massive vessels to the wharves. Most if not all of the container units brought to the terminal uplands would be transported from the site by truck, resulting in hundreds of thousands to as many as one million new truck trips to and from the China Shipping Project, burdening local streets and freeways.
7. The vast increase in activity from operation of the Berth 100 Wharf alone, as well as of the full China Shipping Project once completed, would significantly increase the quantity of diesel fumes-a known carcinogen-emitted into the surrounding communities of San Pedro and Wilmington. In addition, the intensive truck and container movement in and around the Project site from the Berth 100 Wharf alone, and from the full Project once completed, would cause significant impacts on traffic and noise, and on water quality from polluted stormwater run-off from the developed site. Further, stacked containers on the upland terminal area and the enormous cranes that would be used in the container operations at the site would obstruct the San Pedro community’s views of the harbor and channels, thereby impacting aesthetic values.
8. These activities would significantly impact the surrounding communities of San Pedro and Wilmington-areas which are already disproportionately impacted by air pollution, noise, traffic, and other pollution. The Berth 100 Wharf and the full China Shipping Project would be constructed and operated practically in the backyard of thousands of these community residents, including Plaintiffs’ members, the closest of whom live only 500 feet from the site.
9. Though it had full knowledge of all of these facts, the Army Corps failed to disclose, consider or assess any impacts associated with the operation of the Berth 100 Wharf or with the construction or operation of the rest of the China Shipping Project in an environmental impact statement ("EIS") before issuing the Permit. Instead, the Army Corps improperly limited its scope of review solely to the dredging, filling and other impacts associated with the physical construction of the Berth 100 Wharf, in clear violation of the National Environmental Policy Act.
10. This action arises under and alleges violations of the National Environmental Policy Act, 42 U.S.C. §4321 et seq. ("NEPA") and the Administrative Procedure Act, 5 U.S.C. §701 et seq. ("APA").
JURISDICTION AND VENUE 11. As alleged above, this Court has subject matter jurisdiction over the claims set forth in this Complaint pursuant to, inter alia, 28 U.S.C. §1331 (federal question jurisdiction) and 5 U.S.C. §702 (Administrative Procedure Act). The relief sought is authorized by 28 U.S.C. §2202 (injunctive relief).
12. Venue is proper in this Court under 28 U.S.C. §1391(e) because this civil action is brought against an agency of the United States and officers and employees of the United States acting in their official capacities and under the color of legal authority, at least one Defendant resides in the Central District of California, a substantial part of the events or omissions giving rise to this action occurred in the Central District, and the Berth 100 Wharf and the full China Shipping Project at issue in this case, if constructed, would be situated in the Central District.
13. An actual and substantial controversy exists between Plaintiffs and Defendants. Defendants claim in the Environmental Assessment ("EA") prepared by the Army Corps in connection with issuance of the Permit that, despite the Army Corps’ failure to prepare an EIS, it has complied with all applicable laws and regulations. Plaintiffs dispute this contention, claiming an EIS was required.
14. Plaintiffs have no adequate remedy at law. The Army Corps’ failure to comply with federal law will result in irreparable harm to the environment, public health, and Plaintiffs and their members. No monetary damages or other legal remedy can adequately compensate Plaintiffs, their members, or the public for this harm.
15. Plaintiffs and their members are adversely affected or aggrieved by federal agency action and are entitled to judicial review of such action within the meaning of the Administrative Procedure Act ("APA"). The interests of Plaintiffs and their members are directly and significantly harmed by Defendants’ continuing violations of law. The relief requested will fully redress those injuries.
16. Plaintiffs exhausted all available administrative remedies before the Army Corps in objecting to the approval of the Permit.
PARTIES A. The Plaintiffs
17. Plaintiff Natural Resources Defense Council, Inc. ("NRDC") is a national non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. NRDC is organized as a New York not-for-profit membership corporation and has over 500,000 members nationally, many of whom live in Southern California and are adversely affected by the air pollution and other environmental and public health impacts caused by activities at the Port. NRDC actively pursues effective enforcement of clean air regulations and the reduction of air pollution in Southern California on behalf of its members.
18. Plaintiff San Pedro and Peninsula Homeowners Coalition ("Homeowners Coalition") is a coalition of twelve individual homeowners associations in the San Pedro area, including Plaintiff San Pedro Peninsula Homeowners United, Inc. The purpose of the Homeowners Coalition is to protect the interests of residents of the San Pedro area. Through its participating organizations, the Homeowners Coalition represents thousands of people, many of whom live adjacent to or in close proximity to the Port and are adversely affected by air pollution and other environmental and public health impacts from the Port.
19. Plaintiff San Pedro Peninsula Homeowners United, Inc. ("Homeowners United") is an association incorporated in California. Its members are renters and homeowners who live in the San Pedro area adjacent to the site. The goal of Homeowners United is to protect the interests of its members and the community in which its members live. Many of its members live in the direct vicinity of the Port and are adversely affected by air pollution and other environmental and public health impacts from the Port.
20. Plaintiff Coalition for Clean Air Inc. ("CCA") is a California non-profit corporation, with a membership of over 1000 individuals and affiliated state and local citizen groups. The majority of the individual members of the CCA live and work in the South Coast Air Basin. The CCA is the only California-wide organization devoted entirely to air quality issues, and has actively participated in proceedings related to the local, state and federal regulatory activities affecting air quality in the region. Members of the CCA all regularly breathe the excessively polluted air of the South Coast Air Basin and have a direct interest in the outcome of this action.
21. Communities for a Better Environment ("CBE") is a 501(c)(3) nonprofit membership corporation, organized and existing under the laws of the State of California. CBE is a community-based environmental justice organization that works with community members in the Wilmington area and in other parts of Los Angeles and California. CBE was founded in 1978 and has been actively working to improve the California environment since that time. CBE actively pursues effective enforcement of federal law and regulations and the reduction of air pollution in Southern California on behalf of its members. CBE and its members participated in the public hearing that the Corps held on January 15, 2002 regarding the Permit. CBE has members living in Wilmington near the Port of Los Angeles.
22. All Plaintiffs have members who live adjacent to or in close proximity to the Port and the site of the proposed Berth 100 Wharf and China Shipping Project. The interests of Plaintiffs’ members have been and will continue to be affected directly and adversely by the Army Corps’ issuance of the Permit to allow the construction of the Berth 100 Wharf without first performing a legally adequate environmental review. Plaintiffs’ members will likely suffer, among other impacts, increased respiratory problems, increased incidences of cancer and other ill health effects from breathing the increased concentrations of diesel exhaust and other air pollutants emitted in the construction of the Project and then by its operation; increases in the noise and traffic levels from both construction and operation; and the aesthetic impact of the facilities’ obstruction of their views. Plaintiffs bring this action on behalf of themselves and their members.
B. The Defendants
23. Defendant U.S. Army Corps of Engineers is an agency of the United States Government. As a federal agency, the Army Corps is responsible for ensuring compliance with federal law, including NEPA. The Permit was issued by the Los Angeles District of the Army Corps, which is located at 911 Wilshire Boulevard, Los Angeles, California.
24. Defendant Lt. General Robert B. Flowers ("Flowers") is the Commander and Chief Engineer of the Army Corps. Defendant Flowers is responsible for ensuring that the Army Corps, including officials and employees under his supervision, complies with applicable federal laws, including NEPA. Defendant Flowers is sued in his official capacity.
25. Defendant Colonel Richard G. Thompson ("Thompson") is the District Engineer of the Los Angeles District of the Army Corps. Defendant Thompson is responsible for ensuring that the Army Corps, including officials and employees under his supervision, complies with applicable federal laws, including NEPA, in Los Angeles. Defendant Thompson is sued in his official capacity.
26. Defendant City of Los Angeles ("City") is a duly incorporated charter City and a political subdivision of the State of California.
27. Defendant Port of Los Angeles, also known as the Los Angeles Harbor Department, is a department of the City of Los Angeles. The Port is an independent department under the control of a five-member Board of Harbor Commissioners. The Port leases its property to tenants who operate their own facilities. The Port applied for and received the Permit that is the subject of this action, and will construct the Berth 100 Wharf pursuant thereto. 28. Defendant Los Angeles Board of Harbor Commissioners ("BHC") oversees the management and operations of the Port. The five member Board is appointed by the Mayor of Los Angeles and is confirmed by the Los Angeles City Council.
29. The City, Port and BHC are named as defendants in this action in order to provide complete relief because they all entered into the Terminal Lease and the Port applied for and was granted the Permit that is the subject of this action.
FACTUAL BACKGROUND 30. On April 19, 2002, the Army Corps, pursuant to section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act, issued the Permit and thereby authorized the dredging and filling of 1.29 acres of waters of the United States and construction of the Berth 100 Wharf, which construction includes, among other things, the driving of 644 "wharf piles" and 1,920 "pin piles." Through its action, the Army Corps authorized and enabled the operation of the Berth 100 Wharf and the construction and operation of the new China Shipping Project at the Port of Los Angeles, in San Pedro, California. The Army Corps’ action was taken without the preparation of an EIS under NEPA, even though significant environmental impacts will be associated with the construction and operation of the Berth 100 Wharf and the full China Shipping Project. This complaint is timely filed.
A. The China Shipping Project
31. On March 28, 2001 and May 8, 2001, respectively, the Port and City of Los Angeles approved and entered into a binding Permit and Lease (the "Terminal Lease") with China Shipping (North American) Holding Co., Ltd. ("China Shipping") to construct and lease a new shipping terminal at berths 97-109 in San Pedro, California. The China Shipping Project is clearly defined in the Terminal Lease as a new, stand-alone container terminal and wharf complex. If constructed, the China Shipping Project would serve as the new western "hub" of China Shipping’s global container operations.
32. Pursuant to the Terminal Lease, the China Shipping Project would be constructed on a minimum of three contiguous parcels of land, totaling between 134 and 174 acres. Seventy-five of these acres would be located in an area of the Port (berths 97-109) that, although used as a shipyard over one decade ago, has remained relatively dormant for the past thirteen years. At the time the Port applied to the Army Corps for the Permit, this site was being used for the temporary storage of containers, truck chassis and autos, and as a construction staging area, with little activity occurring thereon. Under the Terminal Lease, 35 additional acres would be created out of landfill from dredging operations at the Port and added to the 75-acre site. The remaining 24-64 acres would be added to the China Shipping Project from an adjoining parcel of land to be identified by the Port at a later date.
33. The Terminal Lease commits the City and Port to construct and develop the China Shipping Project in three phases. "Phase I" includes construction of the first 1,200 feet of the Berth 100 Wharf and development of the currently existing 75 acres of backlands for use as a container terminal. "Phase II" includes construction of a second wharf at berth 102 ("Wharf 2"), the extension of the Berth 100 Wharf to a length of between 1,400 and 1,600 ft. as necessary to accommodate 9,100-TEU vessels (the largest container vessels in the world), the creation of an additional 35 acres of terminal backlands out of landfill, and the development of those 35 acres for container terminal use. "Phase III" includes the development of the final 24-64 acres of backlands for container terminal use. The City and Port clearly are obligated under the Terminal Lease to construct and lease to China Shipping all three phases of the China Shipping Project.
34. Pursuant to the Terminal Lease, the China Shipping Project would also include construction of two bridges that would accommodate up to four lanes of truck traffic to connect the China Shipping Project to the next door Yang Ming Terminal, gate facilities that would accommodate up to 8 inbound and 4 outbound lanes of truck traffic, and the use of enormous container cranes.
35. Berth 97-109 does not contain any working wharves. It cannot, therefore, presently accommodate commercial vessel traffic or sustain a shipping terminal. Construction of the Berth 100 Wharf would thus allow the Port to operate berths 97-109 as an active container terminal, which in turn would result in a tremendous increase in commercial activity at the site and at the Port overall, and would greatly impact the environment, public health, and the nearby community.
36. More specifically, the 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.
43. The Project is one of many nearby Port expansion projects which have been approved in the last decade, causing the Port to expand and develop at a tremendous rate.
B. The Army Corps Permit Process
44. After the Port entered into the Terminal Lease to construct the entire China Shipping Project in Spring 2001, on June 21, 2001, the Port applied to the Army Corps for a permit to construct the first 1,200 feet of the Berth 100 Wharf as part of Phase I of the Project. 45. In or around July 2001, the Army Corps issued a public notice stating its intent to limit the scope of its environmental review solely to the dredging, filling and other impacts associated with the physical construction of the first 1,200 feet of the Berth 100 Wharf. Based on this improperly narrow scope, the Corps stated its "preliminary determination" was that "an environmental impact statement is not required for the proposed work."
46. Homeowner and community organizations, affected individuals, elected officials, and environmental groups, including Plaintiffs, urged the Army Corps to enlarge its scope of review to include the impacts of operating the Berth 100 Wharf and the impacts of constructing and operating the entire China Shipping Project, and opposed approval of the Permit without the preparation of an EIS. Numerous community members, community organizations and environmental groups, including Plaintiffs, submitted written comments to the Army Corps expressing concerns over the environmental and public health impacts of the Permit, the Berth 100 Wharf, and the entire China Shipping Project.
47. In particular, Plaintiffs NRDC and CCA submitted four substantive comment letters to the Army Corps on August 30, 2001, November 2, 2001, January 24, 2002, and January 25, 2002, opposing approval of the Permit by the Army Corps without first preparing an EIS. Plaintiff Homeowners Coalition submitted two comment letters to the Army Corps on August 24, 2001 and January 19, 2002 expressing similar views and concerns. Plaintiff CBE submitted written comments to the Army Corps on January 25, 2002, also opposing the approval of the Project without preparation of an EIS. The Army Corps never responded to Plaintiffs’ written comments.
48. In addition, four elected officials representing thousands of San Pedro and Wilmington residents-United States Congresswoman Jane Harman, California State Senator Betty Karnette, California State Assemblymember Alan Lowenthal, and Los Angeles City Councilwoman Janice Hahn-urged the Army Corps to prepare or consider preparing an EIS for the entire China Shipping Project before issuing the Permit and expressed their concerns over the potentially significant impacts of the Project on the human environment, including on air quality, water quality, truck traffic, vessel traffic and noise.
49. In Wilmington, substantial portions of the affected population are Spanish-speaking. The documents and public notices prepared by the Army Corps were not translated into Spanish, despite the specific request of Plaintiff CBE both in oral testimony and written comments. As a result, a significant number of local residents impacted by the Project were excluded from the public review and comment process, in violation of the underlying spirit of NEPA.
50. The many members of the public who did comment raised substantial questions regarding whether the construction and operation of the Berth 100 Wharf and the China Shipping Project would cause significant degradation of the human environment. Plaintiffs and others raised myriad concerns about the potential impacts that may result from the Army Corps’ issuance of the Permit and the resulting construction and operation of the Berth 100 Wharf and the full China Shipping Project, including air pollution, vessel and truck traffic, noise, water pollution, degradation of aesthetic values, general industrial blight, and the close proximity of the Project to the surrounding communities. Plaintiffs and other community members also raised concerns about environmental justice and the toxic risk from increased diesel emissions.
51. Plaintiffs and other members of the affected communities also submitted studies, internal Port documents and public Port documents to the Army Corps, which amply demonstrated that (1) the Project site has remained relatively dormant for over a decade and was still being used as a low-activity storage and staging area on the date the Port applied for the Permit; (2) construction of the Berth 100 Wharf would enable the operation of a container terminal on the adjacent 75 acres of upland area; (3) the activity generated by the operation of the Berth 100 Wharf and the resulting operation of the adjacent 75 acres of upland area as a container terminal would result in significant impacts on the environment and public health, requiring the preparation of an EIS; (4) construction of the Berth 100 Wharf would also enable construction and operation of the entire China Shipping Project; (5) the Port has committed to construct and lease the entire China Shipping Project and thus Phases II and III of the Project are reasonably foreseeable future actions; (6) the activity generated by construction and operation of the China Shipping Project would result in significant impacts on the environment and public health, requiring the preparation of an EIS; and (7) operation of the Berth 100 Wharf and of the entire China Shipping Project would significantly increase the level of container operations at the Port, and the resulting pollution.
52. Plaintiffs are informed and believe and based thereon allege that the Port submitted no documents or other substantial evidence to the Army Corps that contradicted these facts.
53. On January 15, 2002, the Army Corps held a public hearing on the proposed permit. Over 100 members of the public attended the hearing and submitted oral testimony. Plaintiffs and other groups and individuals again urged the Army Corps to broaden its scope of review to include the impacts of operating the Berth 100 Wharf, as well as the construction and operational impacts associated with the full China Shipping Project.
54. On April 19, 2002, the Army Corps issued the Permit to the Port, without first preparing an EIS.
C. The Environmental Assessment
55. The Army Corps instead prepared an Environmental Assessment, which explicitly omitted any discussion of operational impacts associated with the Berth 100 Wharf and omitted any discussion of construction or operational impacts of the full China Shipping Project. The EA expressly stated: "the scope of analysis for this project is limited to [impacts] associated with the construction of a 1,200 foot-long concrete wharf at Berth 100 in the Port of Los Angeles ... Air quality effects associated with operations of the ‘upland’ container storage areas immediately adjacent to Berth 100 are not considered part of the Corps’ scope of analysis. Potential future work at Berth 102 [Wharf 2 and rest of China Shipping Project] is not included in the scope of analysis for this project." Based on this incredibly narrow scope of review, the Army Corps concluded that an EI S was not required.
56. During the administrative process, Plaintiffs submitted public and internal Port documents to the Army Corps that amply demonstrated that, as of the date the Port applied for the Permit, berths 97-109 of the Port could not be used-and in fact were not being used-as a container terminal, because there were no wharves on the site or other terminal structures, such as bridges or an entrance gate, necessary for a terminal to function. Plaintiffs are informed and believe and based thereon allege that the Port submitted no documents or other substantial evidence to the Army Corps that contradicted these facts.
57. Nevertheless, the Army Corps incorrectly concluded in the EA that the Project site was already being utilized "as a marine shipping container storage and transportation site," and thus had "independent utility." Based on this incorrect assumption, the Army Corps refused to extend its scope of review to include the impacts of operating the Berth 100 Wharf or of developing or operating the full China Shipping Project.
58. In addition, the Army Corps made clear in its EA that Phases II and III of the China Shipping Project, including construction of Wharf 2 and the creation of 35 acres of landfill for which the Port must obtain permits from the Army Corps, are actions "likely to occur within the foreseeable future." Moreover, the Port clearly informed the Army Corps in its responses to public comments that it will apply for a permit for Wharf 2 in fall 2002. The Army Corps also made clear in its EA that work at "other adjacent work sites, additional work at Berth 102 [i.e., Wharf 2] and other nearby berths" should be considered cumulatively with Berth 100, [and] an EIS will be "required for work at Berth 102 and other areas." EA at 32.
59. Nevertheless, the Army Corps improperly refused to extend its scope of review to include the impacts of operating the Berth 100 Wharf or of constructing and operating the full China Shipping Project.
60. As a result, the Army Corps failed to consider and mitigate the significant impacts that would result from operation of the Berth 100 Wharf alone and from the construction and operation of the rest of the China Shipping Project. The Army Corps also failed to consider and mitigate the environmental justice impacts of the Berth 100 Wharf alone and from the entire Project.
61. In addition, the Army Corps failed to consider alternatives to the Berth 100 Wharf or the full China Shipping Project. Though the Army Corps stated in the EA that alternatives to the Berth 100 Wharf had been discussed in an Environmental Impact Report prepared by the Port in 1997 under the California Environmental Quality Act ("1997 EIR"), the alternatives discussed in that EIR were for a different project. In particular, the 1997 EIR did not consider or assess less damaging alternatives to the use of berths 97-109 as a container terminal.
62. Plaintiffs are informed and believe and based thereon allege that the Army Corps did not conduct its own independent review of the impacts of any aspect of the Berth 100 Wharf or of the entire China Shipping Project, relying instead on unsubstantiated and undocumented statements by the Port.
FIRST CAUSE OF ACTION (Failure to Prepare and Consider an Environmental Impact Statement to Analyze Impacts of Operating the Berth 100 Wharf and of Constructing and Operating the China Shipping Project - NEPA and APA)
63. Plaintiffs hereby reallege and incorporate by reference the allegations contained in paragraphs 1 through 62 herein.
64. NEPA places on all federal agencies the responsibility to help ensure "for all Americans safe, healthful, productive, and a esthetically and culturally pleasing surroundings," as well as "the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." 42 U.S.C. §4321(b)(2), (3).
65. Towards that end, section 102(2) of NEPA requires federal agencies to prepare, consider, and approve an EIS for any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. §4322(2)(C). The fundamental purpose of an EIS is to force the decision-maker to insure that the policies and goals defined in NEPA are infused into the ongoing programs and actions of the federal government. 40 C.F.R. §1502.1 (1978). An EIS analyzes the potential environmental impacts, alternatives and mitigation opportunities for major federal actions.
66. Issuance of the Permit by the Army Corps under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act constitutes a major federal action significantly affecting the quality of the human environment.
67. In addition, the Army Corps’ NEPA regulations provide that where "a permit applicant may propose to conduct a specific activity requiring a Department of the Army (DA) permit (e.g., construction of a pier in a navigable water of the United States) which is merely one component of a larger project," the Army Corps must extend its scope of review beyond the impacts of the specific activity that requires the permit, to include "those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review." 33 C.F.R. Part 325, Appendix B (1988). The regulations further provide:
For those activities that require a DA permit for a major portion of a shoreside facility, the scope of analysis should extend to upland portions of the facility. For example, a shipping terminal normally requires dredging, wharves, bulkheads, berthing areas and disposal of dredged material in order to function. Permits for such activities are normally considered sufficient Federal control and responsibility to warrant extending the scope of analysis to include the upland portions of the facility. Id.
68. Because the proposed Project site (berths 97-109) does not currently have any container wharves, issuance of the Permit by the Army Corps to dredge, fill and construct the Berth 100 Wharf will enable the Port to conduct shipping operations on the existing 75 acres of adjacent uplands and to construct and operate the full China Shipping Project as a container terminal at that site. The China Shipping Project could not and would not function without the dredging, filling and wharf construction allowed in the Permit.
69. The issuance of the Permit therefore constitutes sufficient Federal control and responsibility by the Army Corps to warrant extending the scope of its analysis to include the impacts of operating the Berth 100 Wharf and of developing and operating the adjacent 75 acres of upland terminal area that are part of Phase I of the Terminal Lease.
70. The issuance of the Permit also constitutes sufficient Federal control and responsibility by the Army Corps to warrant extending the scope of its analysis to include the impacts of constructing and operating the full China Shipping Project.
71. The Army Corps violated NEPA by issuing the Permit without first preparing and considering an EIS that evaluates the construction and operational impacts of the facilities and activities enabled by the Berth 100 Wharf and by the full China Shipping Project, including but not limited to, the air quality, water quality, public health and other impacts associated with the cruising, hotelling and idling of the container vessels anticipated to dock at the Berth 100 Wharf and the full China Shipping Project, as well as of the tugboats required to move those vessels, and the air quality, water quality, traffic, noise, public health, aesthetic, and other impacts of the resulting increase in activity, including from the significant increase in the use of diesel yard equipment, trucks and trains necessary to transport to and from the site the containers brought by the container vessels.
72. The Army Corps’ failure to prepare an EIS that evaluates the construction and operational impacts of the Berth 100 Wharf and of the full China Shipping Project, as well as alternatives to the Berth 100 Wharf and to the full China Shipping Project, before issuing the Permit is a violation of NEPA.
73. The Army Corps’ failure to prepare an EIS before issuance of the Permit constitutes a continuing violation of law that adversely affects and aggrieves Plaintiffs and also constitutes the unlawful withholding or delay of mandatory agency action under the APA.
74. The Army Corps’ failure to comply with NEPA and the regulations promulgated thereunder by not preparing an EIS for the Permit and the China Shipping Project is arbitrary and capricious, an abuse of discretion, unreasonable, not in accordance with the law, and without observance of procedure required by law.
SECOND CAUSE OF ACTION (Failure to Prepare an Environmental Impact Statement to Analyze Connected, Cumulative and Similar Actions - NEPA and APA)
75. Plaintiffs hereby incorporate by reference the allegations contained in paragraphs 1 through 74, inclusive.
76. NEPA requires the Army Corps to analyze in a single EIS (a) "connected actions," which include actions that "automatically trigger other actions" and actions that "[a]re interdependent parts of a larger action and depend on the larger action for their justification," (b) "cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts," and (c) "similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography." 40 C.F.R. §1508.25 (1978).
77. NEPA further requires the Army Corps to analyze in a single EIS all "cumulative impacts" of its actions, which include impacts that result "from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions." 40 C.F.R. §1508.7 (1978). "Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." Id.
78. Operation of the Berth 100 Wharf and the adjacent upland area and construction and operation of Wharf 2 and the rest of the China Shipping Project are reasonably foreseeable future actions similar to the Army Corps’ issuance of the Permit for the Berth 100 Wharf. All three phases of the China Shipping Project, including the construction and operation of the Berth 100 Wharf, Wharf 2, and the 134-174 acre terminal complex, are similar, connected and/or cumulative actions that, alone and when combined, would have significant effects on the quality of the human environment, including significant impacts on air quality, water quality, traffic, noise, toxic risk and aesthetics. Moreover, the cumulative impacts of construction and operation of all three phases of the China Shipping Project would be significant. The Army Corps’ failure to prepare an EIS that evaluates the construction, operational and cumulative impacts of these similar, connected, and/or cumulative actions before issuing the Permit is a violation of NEPA.
79. The Army Corps’ failure to prepare an EIS for the Permit that includes consideration of the Berth 100 Wharf, Wharf 2, and the rest of the China Shipping Project constitutes a continuing violation of law that adversely affects and aggrieves Plaintiffs and constitutes the unlawful withholding or delay of mandatory agency action under APA.
80. Defendants’ failure to comply with NEPA and the regulations promulgated thereunder by not preparing an EIS for the Permit and the connected, cumulative and similar actions of Wharf 2 and the rest of the China Shipping Project is arbitrary and capricious, an abuse of discretion, unreasonable, not in accordance with the law, and without observance of procedure required by law.
THIRD CAUSE OF ACTION (Failure to Prepare an Environmental Impact Statement to Analyze Indirect Impacts of Permit for Berth 100 Wharf - NEPA and APA)
81. Plaintiffs hereby incorporate by reference the allegations contained in paragraphs 1 through 80, inclusive.
82. Before issuing the Permit, the Army Corps was required under NEPA to consider indirect impacts of that action, including those impacts that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. §1508.8(b) (1978). "Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use...or growth rate, and related effects on air and water and other natural systems." Id.
83. The berthing of huge container vessels by China Shipping at the Berth 100 Wharf is a reasonably foreseeable indirect impact of the Permit to construct the wharf. The Army Corps’ failure to prepare an EIS that evaluates the impacts associated with the construction and the operation of the Berth 100 Wharf, including but not limited to the air, water quality and other environmental impacts from the cruising, hotelling and idling of container vessels and tugboats, is a violation of NEPA.
84. In addition, the polluting activity associated with the movement and transportation of the containers brought by the vessels that will berth at the Berth 100 Wharf to, from and around the existing 75-acre upland area adjacent to the Berth 100 Wharf, including but not limited to the increase in the use of trucks, on-site yard equipment and trains, is a reasonably foreseeable indirect impact of the Permit to construct the Berth 100 Wharf. The Army Corps’ failure to prepare an EIS that evaluates the impacts associated with the operation of the upland areas adjacent to the Berth 100 Wharf, including but not limited to reasonably foreseeable air quality, water quality, traffic, noise, toxic risk and aesthetic impacts, is a violation of NEPA.
85. In addition, in its EA the Army Corps itself defines Phases II and III of the China Shipping Project, which phases include the extension of the Berth 100 Wharf to accommodate larger 9,100-TEU vessels, the construction of Wharf 2, and the development of the remaining 59-99 acres of terminal backlands, as actions "likely to occur within the foreseeable future." EA at 14. Phases II and III of the China Shipping Project, which the Port has already committed to construct and lease to China Shipping, are in fact reasonably foreseeable indirect impacts of the Army Corps’ issuance of the Permit to construct the Berth 100 Wharf, as the Permit and resulting construction of the Berth 100 Wharf will convert berths 97-109 to an active container terminal. The Army Corps’ failure to prepare an EIS that evaluates the impacts associated with the construction and the operation of Phases I, II and III of the China Shipping Project, including but not limited to the air, water quality and other environmental impacts from the cruising, hotelling and idling of the container vessels that will call at the site, as well as the reasonably foreseeable increase in use of tugboats, trucks, trains and yard equipment needed to transport the containers brought by those vessels, before issuing the Permit is a violation of NEPA.
86. The Army Corps’ failure to prepare an EIS for the Permit and the indirect impacts of the Permit constitutes a continuing violation of law that adversely affects and aggrieves Plaintiffs and constitutes the unlawful withholding or delay of mandatory agency action under APA.
87. Defendants’ failure to comply with NEPA and the regulations promulgated thereunder by not preparing an EIS for the Permit and the China Shipping Project is arbitrary and capricious, an abuse of discretion, unreasonable, not in accordance with the law, and without observance of procedure required by law.
FOURTH CAUSE OF ACTION (Improper segmentation of the China Shipping Project - NEPA and APA)
88. Plaintiffs hereby incorporate by reference the allegations contained in paragraphs 1 through 87, inclusive.
89. When a proposed federal action is part of a larger federal and nonfederal action that will have a significant impact on the environment, NEPA requires the preparation of an EIS for the entire action. This obligation prohibits the Army Corps from piecemealing connected actions to avoid a full EIS.
90. The NEPA process must be integrated with agency planning "at the earliest possible time." 40 CFR 1501.2. Moreover, CEQ regulations require that federal agencies, to the extent possible, "integrate the requirements of NEPA with other planning and environmental review procedures required by law or by agency practice so that all such procedures run concurrently rather than consecutively." 40 C.F.R. § 1500.2(c) (1978). These purposes cannot be fully served if consideration of the cumulative effects of successive interdependent steps is delayed until the first step has already been taken.
91. Operation of the Berth 100 Wharf and the resulting operation of the adjacent 75 acres of upland area as a container terminal are "reasonably foreseeable" future actions that will require the preparation of an EIS. In addition, the Army Corps made clear in its EA that Phases II and III of the China Shipping Project are "reasonably foreseeable" future actions that will also require the preparation of an EIS.
92. Nevertheless, in violation of NEPA, the Army Corps improperly segmented review of the China Shipping Project to avoid disclosure and analysis of the serious environmental impacts associated with all three phases of the China Shipping Project, including but not limited to the impacts associated with the operation of the Berth 100 Wharf, the impacts associated with the development and operation of the adjacent 75 acres of terminal backland area, and the construction and operational impacts associated with Wharf 2 and the rest of the China Shipping Project.
93. The Army Corps’ failure to prepare an EIS for the entire China Shipping Project, including construction and operation of all three phases, constitutes a continuing violation of law that adversely affects and aggrieves Plaintiffs and constitutes the unlawful withholding or delay of mandatory agency action under APA.
94. Defendants’ failure to comply with NEPA and the regulations promulgated thereunder by not preparing an EIS for the Permit and the China Shipping Project is arbitrary and capricious, an abuse of discretion, unreasonable, not in accordance with the law, and without observance of procedure required by law.
PRAYER FOR RELIEF Wherefore Plaintiffs respectfully request that this Court:
1. Enter a final judgment declaring that Defendants Army Corps, Flowers and Thompson are in violation of the National Environmental Policy Act as described above;
2. Issue a temporary restraining order and a preliminary injunction enjoining the Port, the City and the BHC from further activities under the Army Corps’ Permit, including but not limited to any further construction of the Berth 100 Wharf, to preserve the status quo pending this Court’s decision and prevent irreparable harm to Plaintiffs;
3. Issue a permanent injunction enjoining the Port, the City and the BHC from further activities under the Army Corps’ Permit, including but not limited to any further construction of the Berth 100 Wharf, unless and until all federal statutes are complied with;
4. Enter a final judgment vacating the Permit and remanding this action to the Army Corps to prepare and consider an EIS for the full China Shipping Project;
5. Award Plaintiffs their reasonable attorneys’ fees, costs, expenses, and disbursements associated with this litigation; and
6. Grant Plaintiffs such additional and further relief as the Court may deem just and proper.
Respectfully submitted,
NATURAL RESOURCES DEFENSE COUNCIL
Gail Ruderman Feuer
Julie Masters
David Mason
Attorneys for Plaintiffs Natural Resources Defense Council, Inc., San Pedro and Peninsula Homeowners Coalition, San Pedro Peninsula Homeowners United, Inc., Coalition for Clean Air, Inc.ROGER BEERS
Attorney for Plaintiff Natural Resources Defense Council, Inc.COMMUNITIES FOR A BETTER ENVIRONMENT
Richard Drury
Scott Kuhn
Attorneys for Plaintiff Communities for a Better Environment
To return to LBReport.com front page, click here