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The San Bernardino International Airport’s air cargo facility development is not through with legal challenges yet.

The state of California requested Jan. 3 an en banc rehearing to their rejected petition that the Federal Aviation Administration (FAA) conduct an environmental impact statement (EIS) on the expansion. The FAA did not conduct an EIS after concluding that the project would have no significant impact.

The California Attorney General, with the San Bernardino non-profit Center for Community Action and Environmental Justice, the Sierra Club, Teamsters Local 1932 and two San Bernardino residents, claims the divided Fourth Appellate decision to reject their petition to review violated court precedent.

The project would be a 685,500-square foot sorting, distribution and office building with 101 dock doors and 20 air cargo container doors, two 25,000-square foot maintenance buildings and 2,000 parking spots, according to FAA documents.

It would generate 24 daily take-offs and landings, 192 daily roundtrip truck trips, and 3,846 daily passenger-car trips in its first year of operation, according to the original appellate ruling.

Petition to review

The petitioner’s rejected petition found four issues with the FAA’s decision to not conduct an EIS after finding no significant environmental impacts from the project.

The petition claimed there were flaws in determining that there was no significant impact because of these state assertions: 

  1. The FAA based the determination on baselines that conflicted with the National Environmental Policy Act and the FAA’s own regulations.
  2. The analysis ignored projects related to the cargo facility that may have an environmental impact if taken together.
  3. The FAA understated the number of truck trips associated with the project, by stating there would be 192 truck trips in the environmental analysis, but 3,823 daily trips in the first year of operations according to a separate document.
  4. The FAA didn’t examine the project’s impacts to air quality and climate.

Review rejected

The majority appellate ruling claimed the petition to review had mistaken directives as laws without weight on the first claim.

The ruling found the FAA considered cumulative projects, but that the petition erroneously believed specific, quantifiable data was required.

On the third claim, the ruling said the petition had no authority to mandate consistency of truck trips between documents.

On the petition’s final claim, the ruling found the petition did not articulate a specific violation of the California Clean Air Act.

In dissent, Judge Johnnie Rawlinson said there was doubt that the FAA took the required “hard look” at the project as required, because the FAA came to different results between the environmental documents. Rawlinson also said the study area for air quality was too small, because it did not include truck corridors that would be impacted by increased traffic.

En banc request

The coalition’s new petition for a hearing before all Ninth Circuit judges claims the court’s previous ruling disregards precedent and imposes a heightened burden of proof for petitioners who challenge environmental analyses.

The higher burden would require NEPA petitioners to analyze information that agencies have not gathered or analyzed, the new petition claims.

The new petition cites the 2010 United States Court of Appeals, Ninth Circuit case Te-Moak Tribe, 608 F.3d, which said that plaintiffs don’t need to prove specific impacts to adequately challenge impact analyses, as long as they prove cumulative impacts were not considered.

“To hold otherwise would require the public, rather than the agency, to ascertain the cumulative effects of a proposed action,” the case reads.

The rehearing petition also claims that the irregularity of the FAA’s truck trip counts between their two documents triggers a bar set by precedent that requires an environmental impact statement.

“You can’t cut corners when the health and well-being of our communities is at stake,” Attorney General Rob Bonta said in a press release announcing the new petition.

Parties

Yuting Chi, deputy attorney general, submitted California’s petition.

The FAA is the formal respondent, with Eastgate BLDG 1, LLC and the San Bernardino International Airport Authority intervenors.

Circuit Judge Eugene Siler wrote the majority opinion, Patrick Bumatay concurred and Johnnie Rawlinson dissented.

Case number: 20-70272

Read the en banc petition here.

Read our prior coverage here.

Read the decision here.

Read the nonprofit’s petition here.

Read the state’s petition here.

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