Natural Resources Defense Council v. City of Los Angeles (Jan. 22, 2024) 98 Cal.App.5th…

At the center of this case is the China Shipping Terminal at the Port of Los Angeles, the mitigation identified in the 2008 EIR certified for construction of the terminal, and, more directly, the mitigation identified in the 2019 subsequent EIR (SEIR) prepared to revisit the terminal’s continuing operational impacts (the “revised project”).

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Summary of Key 2024 CEQA Court Cases

Association of Environmental Professionals 2025

After approving the terminal, the Port of Los Angeles failed to impose any of the 2008 EIR’s mitigation measures because China Shipping would not agree to include the measures in its lease on the terminal. In late 2015 the Los Angeles Times published an article explaining how the Port of Los Angeles was not implementing the mitigation measures, including measures to protect air quality, that it had committed to in the 2008 EIR. Shortly thereafter, the Port of Los Angeles began preparing an SEIR to re-examine and revise the mitigation measures of the 2008 EIR. The 2019 SEIR identified several “new and/or revised mitigation measures” and eliminated some 2008 measures. However, the Court noted, “the 2019 SEIR, like the 2008 EIR before it, failed to provide a mechanism for making the mitigation measures legally enforceable.”

The trial court held for the plaintiffs challenging the 2019 SEIR, but failed to mandate any action on the Port of Los Angeles other than invalidating the SEIR. The Court of Appeal reversed in part and criticized the trial court for failing to mandate actions to correct the SEIR and ensure that port activities damaging to the environment would not continue during the interim period while the SEIR was being repaired.

The Court found that modifying or deleting some of the 2008 EIR mitigation measures in the 2019 SEIR was supported by substantial evidence (in the form of special studies indicating that certain air quality measures requiring new technology were infeasible at this time). This reminds us that when an EIR has been certified, a disagreement among experts does not indicate an inadequacy in the EIR as long as the lead agency has substantial evidence to support its findings. The South Coast Air Quality Management District requested that the SEIR contain a mitigation measure establishing a zero-emission demonstration program for cargo-moving equipment. The Court held that the Port of Los Angeles had properly dismissed this request because a demonstration project, by its nature as a test project, “may not be successful in reducing or minimizing an adverse environmental impact.” The Court also upheld the Port of Los Angeles’s decision to delete as infeasible the drayage truck fleet mitigation measure requiring an increased percentage of trucks to utilize liquified natural gas fuel and to refuse to incorporate an alternative means of reducing fleet emissions. In both cases, the Port of Los Angeles relied upon expert studies that indicated that alternative fuel trucks did not exist in sufficient numbers to make this mitigation measure feasible. This substantial evidence supported the Port of Los Angeles’s removal of the mitigation measure and decision not to include an alternative measure.

The appellants commented to the Port of Los Angeles that it should establish an independent monitor to ensure that mitigation measures would be enforced in the future. The Port of Los Angeles rejected this comment and the issue was raised in this litigation. The Court rejected the appellant’s argument, explaining that “while an agency … has discretion as to whether to delegate its ‘reporting or monitoring responsibilities to another public agency or to a private entity,’ there is no requirement that it do so.” In addition, the Court noted that because the project was limited to the China Shipping terminal and not the entire port, appointing an independent monitor to oversee mitigation for the entire port was beyond the scope of the SEIR.

The Court decided against the Port of Los Angeles on several issues. The 2019 SEIR included a GHG emissions fund intended to reduce GHG emissions from operations at the terminal. The SEIR termed this a “lease measure” rather than a mitigation measure despite having cited it for reduction of GHG emissions in both the SEIR and the SEIR findings. The Port of Los Angeles argued that as a lease measure it need not be a binding mitigation measure. The Court rejected this argument, noting that the SEIR failed to adequately explain its decision to not adopt the measure as an enforceable mitigation measure, thereby failing to meet its obligation to adequately inform the public and decision makers.

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Association of Environmental Professionals 2025

Summary of Key 2024 CEQA Court Cases

The Port of Los Angeles’s decision to modify a 2008 EIR vessel speed reduction measure’s applicability from 100 percent of ships to 95 percent of ships was not supported by substantial evidence. The Court noted that in fact the Port of Los Angeles’s voluntary speed reduction program had already achieved the 95-percent rate and that China Shipping’s assertion that the program was infeasible for it was opinion without factual support. Furthermore, the Port of Los Angeles’s claim that the air quality benefits of a 5-percent reduction would be negligible was contradicted by port information showing that yearly NOX emissions would be 10 tons greater than if a 100-percent standard were required. The Court concluded that the Port of Los Angeles abused its discretion by modifying the mitigation measure.

Lastly, on the subject of the trial court’s failure to act other than to invalidate the SEIR (thereby allowing port activities to continue despite the lack of enforced mitigation measures), the Court explained that a trial court has the authority to invoke three means by which to fashion CEQA remedies under Public Resources Code Section 21168.9: (1) it can void the agency’s action (subd. (a)(1)), suspend project activities (subd. (a)(2)), and/or direct the agency to undertake specific actions to bring its decision-making into compliance (subd. (a)(3)). The Court remanded the case to the trial court for it to take appropriate action. This might include setting a strict deadline for adoption of a new SEIR and ordering terminal operations to comply in the interim with mitigation measures from the 2019 SEIR and 2008 EIR measures if deemed appropriate by the court.

The Court summarized its decision as follows:

In sum, we conclude that four of appellants’ challenges to the 2019 SEIR are without merit. Specifically, substantial evidence supports the Port’s decision to delete as infeasible the drayage truck fleet mitigation measure requiring drayage trucks calling at the Terminal to utilize LNG, as well as the Port’s decision not to adopt an alternative mitigation measure for reducing emissions for drayage trucks calling at the Terminal. Substantial evidence also supports the Port’s decision not to adopt a zero-emission demonstration project for cargomoving equipment such as top handlers and large forklifts. Finally, the Port acted within its legal authority in deciding not to appoint an independent monitor to track mitigation compliance, and it sufficiently responded to the comment requesting appointment of an independent monitor.

However, as to two other specific challenges to elements of the 2019 SEIR, we conclude that the record is insufficient to support the Port’s decisions. First, we agree with appellants that the Port’s decision to modify the VSRP mitigation measure from 100 percent compliance to 95 percent compliance is not supported by substantial evidence. Further, we conclude that the Port has failed to adequately explain the basis for and support with evidence its decision to make a GHG emissions fund measure a lease measure rather than a mitigation measure.

Finally, we conclude that the trial court erred with respect to its interpretation and application of section 21168.9, and thus mistakenly limited its options for fashioning a remedy that reinforces CEQA’s environmental protection purposes.