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With ZEVs and Air Toxics in Mind, CARB Seeks to Inject Itself into SCAQMD’s Lawsuit Against Port of LA

In challenges to California development projects, the “usual suspects” typically include environmental NGOs or neighborhood organizations.  However, that’s not always the case, as illustrated by a new lawsuit filed by the South Coast Air Quality Management District (“SCAQMD”) against the Port of Los Angeles. In that lawsuit, SCAQMD claims the Port violated the California Environmental Quality Act (“CEQA”) in approving a Final Supplemental Environmental Impact Report (“2020 Final SEIR”) for the China Shipping container terminal (Port berths 97-109).  And, this week, the California Air Resources Board (“CARB”), represented by the California Attorney General, decided to enter the case on behalf of the SCAQMD.

In addition to the fact that sister agencies are not the typical plaintiffs in CEQA challenges, the lawsuit is notable because, at its core, are two key California air quality initiatives  – AB 617, which addresses local air toxics, and the Governor’s Zero-Emissions Vehicle (“ZEV”) Initiative, which is the subject of another blog post.

SCAQMD alleges the China Shipping terminal handled approximately 17% of the Port’s total cargo in 2019, and claims that prior emission mitigation commitments in a 2008 Environmental Impact Statement/Environmental Impact Report and lease agreement were not implemented or enforced.  SCAQMD takes issue with the 2020 Final SEIR, which it alleges contains “unenforceable and inferior substitute measures.”

CARB’s decision to enter the case is notable for a few reasons.  First, it uses AB 617 and AB 617 Community Emissions Reduction Plans as the basis for its stake in the case.  Second, it highlights the scrutiny it expects all agencies to place on the new ZEV directives and the corresponding focus on NOx emissions.  Third, it could signal either a reluctance to defer to the local air district, which is supposed to have the primary role in managing local air quality under California law, especially for stationary sources, or perhaps a welcome move of bringing reinforcements to support the case.  This may in part be attributable to a concern around local commitment to implementation of AB 617 emissions reduction plans.  Finally, it highlights CARB’s ability to use CEQA to advance its environmental justice plans and strategy.

For those not directly involved in the lawsuit, the case will be of interest as an indicator of how new air quality initiatives might impact the economic growth and approvability of projects that are important to the state’s economy going forward.

The case discussed in this blog post is titled South Coast Air Quality Management District v. City of Los Angeles, et al., LA Superior Court case no. 20STCP02985. The complaint can be found here and the motion to intervene can be found here.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 314
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About this Author

Shannon Broome Environmental Attorney Hunton Andrews Kurth Law Firm
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Shannon is the managing partner of the firm’s San Francisco office and leads the firm’s California environmental practice.  Her prior experience as a chemical engineer in the oil and gas industry affords her unparalleled insights into the development of regulations and counsel on environmental, health and safety issues. Shannon also maintains an office in Washington, DC. Splitting her time between these offices allows her to help her clients wherever they may be. Shannon’s work focuses on permitting, enforcement, environmental incident response, and regulatory advocacy and litigation....

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P. Scott Burton Environmental & Energy Hunton Andrews Kurth Los Angeles, CA
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Scott leverages his extensive environmental, energy and natural resource experience to advise clients in the national and international public policy arenas.

Scott’s practice is broad in scope, covering a wide range of high-profile and high-risk issues across the nation and in overseas jurisdictions. He is often the first line of defense for domestic and multinational clients, leveraging his power plant operations background and natural resource economics consulting experience to help clients navigate complex regulations and policy issues affecting their business operations. He...

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Malcolm C. Weiss Environmental Attorney Hunton Andrews Kurth Los Angeles, CA
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Malcolm is well-versed in a wide range of complex environmental law issues. Clients appreciate his forward-looking, practical approach to solving problems.

Malcolm has developed a sophisticated practice covering a wide variety of environmental laws and statutes, and is always ready to assist clients, whether it be with air quality and product/chemical safety or environmental auditing and due diligence. He has gained a broad perspective of the numerous challenges facing companies operating in California, developing particularly in-depth knowledge of California’s air...

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