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The Ninth Circuit Court of Appeals has changed their reason for denying the review of a distribution project at San Bernardino International Airport. The amended opinion also deletes a concurring opinion that criticized the minority opinion. The minority opinion had alleged the project’s approval “reeked of environmental racism.”

The project would add 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 Federal Aviation Administration (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.

The FAA decided Dec. 23, 2019, that the project would add no significant environmental impacts. That decision was challenged by the San Bernardino nonprofit Center for Community Action and Environmental Justice, the Sierra Club, local Teamsters and the state of California.

They said the FAA failed to consider the environmental effects of 80 other projects that would start after the expansion was complete, a failure of what’s known as cumulative analysis.

They specifically said that the FFA understated the number of daily truck trips by 3,361.

Their challenge was denied Nov. 18, 2021, Follow Our Courts reported.

Cumulative impacts

Both versions of the ruling say that the FAA conducted a fine cumulative impact analysis, but differed at how they arrived there.

The new ruling says that the CCA’s and the state’s criticism of the decision to not conduct a more robust air quality analysis “amount to disagreements with the results, not procedures.”

The original ruling said that a cumulative analysis should be performed only if a project by itself exceeds emission thresholds.

The project’s final environmental impact report “recognizes that only if a project alone exceeds certain emission thresholds does a cumulatively significant impact occur,” the ruling had originally said.

“Yet the CCA points to nothing to show that emissions from any of the 80-plus projects individually exceed relevant thresholds. In sum, the CCA offers no reason to believe that the FAA needed to examine any other cumulative impact resulting from the 80-plus projects,” the ruling had said.

Both these statements were removed in the amended version. In their place, the amended ruling said that the CCA failed to prove why the FAA should have considered the cumulative impact of all 80 projects.

“To the extent that the CCA implicitly suggests that the FAA should have considered the 80-plus other project’s cumulative impact on air emissions, it failed to provide support for that view,” the amended ruling says.

“The only evidence that CCA points to is a California Environmental Quality Act (CEQA) report that found air pollutant emissions associated with the project would result in ‘cumulatively considerable significant impact’ with respect to construction and operational activity. But the CEQA report does not expressly attribute its cumulative impact findings to the 80-plus projects identified by the CCA in reaching its conclusion,” the new ruling says.

“The CCA’s own cited evidence reveals that cumulative air quality impact is measured by each individual project’s excess emissions beyond certain thresholds and not by the cumulative effect of all project’s emissions. Accordingly, the CCA’s conclusory criticism of the (environmental assessment)’s failure to conduct a more robust cumulative air impact analysis by considering the emissions of nearby projects, when the CCA has offered no reason to believe that any of those other projects individually exceed applicable emissions thresholds, is unavailing” the ruling said when concluding an analysis of cumulative impacts. Those sentences are deleted from the amended version.

The new version says that a cumulative impact approach is required to prevent an agency from circumventing environmental reviews by dividing a project into multiple smaller actions, citing the 2020 case Tinian Women Association v. U.S. Department of the Navy.

Originally, the opinion drew the purpose of cumulative impacts from the 2004 case Klamath-Siskiyou Wildlands Center v. Bureau of Land Management. That case, as cited by the majority opinion, said that the point of cumulative review was to mitigate loss of animal habitat.

The opinion also changed from saying that the FAA “considered” the impact of 168,493 additional daily truck trips to saying that the FAA “specifically accounted for the traffic.”

The amended majority opinion said multiple times that the CCA failed to identify potential cumulative impacts; while the original opinion said the CCA failed to identify specific cumulative impacts.

The original ruling said that the CCA argued that the FFA should have considered “more than just the traffic effects” of the 80-plus projects. The amended ruling replaces that quote with “effects on unidentified ‘other impact areas.’”

The new version also expanded reference to the 2002 case Kern v. U.S. Bureau of Land Management, and added references to the 2004 case High Sierra Hikers Association v. Blackwell and the 2014 case Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of Interior. Each case said that the cumulative impact of all potential projects must be reviewed.

Concurring opinion

The ruling was originally published with a majority opinion, a concurring opinion and a minority opinion.

In the minority opinion, Circuit Judge Johnnie Rawlinson said the project was improperly vetted, “reeked of environmental racism,” and would never be proposed near Jeff Bezos’ home.

In the original version, Circuit Judge Patrick Bumatay wrote a two-page concurring opinion that responded to Rawlinson. Bumatay argued that Rawlinson should not have mentioned environmental racism at all.

“Rather than simply addressing the issues presented here, the dissent injects the case with accusations of ‘environmental racism.’ Such accusations are a serious matter. If the government acted with any racial motivation, this court has an obligation under the Constitution and the laws to stop it. The majority did not address such accusations—not because they are unimportant—but because no party raised them. No party asserted that ‘environmental racism’ had anything to do with the government’s actions here,” Bumatay had written in the opinion now deleted from the published record. In the amended version, Bumatay joined the majority opinion.

Rawlinson had responded to Bumatay’s concurring opinion in a footnote at the end of her own dissenting opinion. That footnote is also deleted in the new ruling.

“For the record, I grew up in the segregated South and looked racism in the face, up close and personal, long before my concurring colleague (Bumatay) was born. So pardon me if I take a hard pass on the lecture on when, where, and how to identify racial injustice. Indeed, if any compassion is owed in this case, it should be directed toward the people in San Bernardino County who are literally dying from being subjected to pollution on top of pollution,” Rawlinson had written.

Case information

Case No. 20-70272

Ninth Circuit Judge Eugene Siler wrote the majority opinion.

Adriano Martinez of Earthjustice argued for the CCA.

Deputy Attorney General Yuting Chi argued for the state of California.

Rebecca Jaffe of the Department of Justice’s Environment and Natural Resources Division argued for the FAA.

Michael Carroll of Costa Mesa’s Latham & Watkins and Ronald Scholar of Roseville’s Cole Huber LLP argued for the project developer, Eastgate Building 1, LLC, and the San Bernardino International Airport Authority.

Read our prior coverage here and here.

Read the nonprofit’s petition here.

Read the original decision here.

Read the amended decision here.

Compare the rulings here.

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