1

Filed 1/12 /18 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT DIVISION THREE

CITY OF LONG BEACH et al., Plaintiffs and Respondents; XAVIER BECERRA, as Attorney General, etc., Intervener and Respondent,

v. CITY OF LOS ANGELES et al., Defendants and Appellant s ; B NSF RAILWAY COMPANY, Real Party in Interest and Appellant

. A148993
(Contra Costa County Super. Ct. No. CIVMSN140300)

D efendants City of Los Angeles et al. 1 and real party in interest BNSF Railway Company (BNSF) appeal a judgment granting consolidated petition s by government and public interest entities 2 to set aside certification of the final environmental impact report ( F EIR) relating to, and approval of
, the proposed construction by BNSF of a new railyard approximately four miles from the Port of Los Angeles

. 3 Environmental analysis of the

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publica tion with the exception of parts 5, 6, 8, 10, and 11 of the Discussion.

1 Other named defendants include the City Council of the City of Los Angeles, t he Port of Los Angeles
, and the City of Los Angeles Harbor Department (harbor department). Defendants are collectively referred to as the City of Los Angeles.

2 Plaintiffs include City of Long Beach, South Coast Air Quality Management District, East Yard C ommunities for Environmental Justice, Coalition for Clean Air, Century Villages at Cabrillo , Natural Resource Defense Council, Inc., Coalition for a safe Environment, Apostolic Faith Center, Community Dreams, California Kids IAQ, Long Beach Unified School District, Fast L ane Transportation, Inc., California Cartage Company, Inc., Three Rivers Trucking, Inc., and San Pedro Forklift, Inc.

3 Amicus curiae briefs have been filed by California Communities Against Toxics, California Safe Schools, Communities for a Better Environment, Del Amo Action2

project dates back to at least 2005. The administrati ve record exceeds 200,000 pages, the FEIR exceeds 5,000 pages, and the trial court’s opinions dealing with the multitude of issues raised below exceed 200 pages.
A ppellants challenge the trial court’s conclusion that the FEIR is deficient because
it fails to analyze the impact of rendering capacity at BNSF’s existing Hobart yard in the City of Commerce, some 24 miles from the port, available to handle additional traffic
, arguing that the project description in the F EIR is misleading and that the F EIR fail s to adequately analyze the indirect and growth

- inducing impacts of the proj ect. A ppellants also dispute the trial court’s conclusions that the analysis of the project’s impacts on noise, traffic , a ir q uality and greenhouse gas emissions is inadequate

. Preliminarily, appellants also contend the trial court erred in concluding that the Attorney General, who intervened in the petition filed by the City of Long Beach, was entitled to assert objections to the sufficiency of the FEIR that were not raised by a ny party in the administrative proceedings. We conclude that the exhaustion requirement that generally apply to parties contesting the adequacy of an environmental impact report do not apply to the Attorney General and that the FEIR fails to adequately c onsider air quality impacts of the project, particularly impacts to ambient air pollutant concentrations and cumulative impacts of such pollutant concentrations. With respect to all other claimed deficiencies, we conclude that the analysis in the FEIR sati sfies the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)

. 4

Committee, Mothers of East Los Angeles, NAACP Wilmington

- San Pedro, the Regents of the University of California, the Los Angeles Coalition for the Economy and Jobs
, and the Association of American Railroads in support of appellants.

4 All statutory references are to the Public Resources Code unless otherwise noted. The administrative regulations adopted to implement CEQA, codified in title 14, section 15000 et seq. of the California Code of Regulations, are referred to as CEQA Guidelines

. In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous. ( Citizens of Goleta Valley v. Board of Supervisors ( 1990) 52 Cal.3d 553, 564, fn. 3.)3 Factual and Procedural History Together, the P orts of Long Beach and Los Angeles (collectively ports) handle up
to 64 percent of all oceanic shipping on the West Coast and about 35 percent of such shipping in the United States. As described in the FEIR, “The majority of goods coming into the ports arrive in shipping containers transported on container ships. Once the
containers have been off

- l oaded from ships onto a marine terminal, they are sorted based on destination and transported out of the terminal by truck or train. Containers may be placed on trains inside the terminal (on

- dock rail), they may be loaded onto truck chassis (trailers desi gned to hold containers) to be hauled to their final destination, or they may be loaded onto truck chassis to be drayed to a railyard outside the terminal (near

- dock or
off

- dock rail). ” As of 2008, there were nine operating “on

- dock railyards” at the por ts. “ Typically,
trains built on

- dock consist of railcars all bound for the same destination, although exceptions do occur. Most cargo that cannot fill a single

- destination train on

- dock is drayed to an off

- dock or near

- dock railyard to be combined with cargo from other marine terminals headed for the same destination because those railyard facilities can provide space to hold containers from multiple terminals and assemble them into blocks for
common destinations. ” “Containers handled at the on

- dock rail yards leave the port area via the Alameda Corridor, a 20

- mile long, multiple

- track rail system with no at

- grade (i.e. street level) crossings that links the rail facilities of the ports with the transcontinental rail
network

. . . near downtown Los Angeles

. ” Union Pacific operates the only “near

- dock railyard” presently servicing the ports. Union Pacific’s near

- dock facility is approximately five miles north of the ports. Containers from the ports are transported to the near

- dock railyard via trucks on loc al
roads. Trains departing the near

- dock railyard utilize the “ Alameda Corridor ” to connect with the tr anscontinental rail network. Currently, there are two “off

- dock railyards” that handle the majority of containers from the ports: BNSF’s Hobart y ard and Un ion Pacific’s East Los Angeles y ard. Both railyards are located near downtown Los Angeles, approximately 24 miles north of the4

ports

. Containers are transported by truck, g enerally via the I

- 710 freeway, from the ports
to the off

- dock railyard s. In Se ptember 2005, the harbor department re leased a notice of preparation and
initial s tudy for BNSF’s propos al to construct a 153

- acre near

- dock rail yard approximately four miles from the ports . The proposed project is referred to as the
Southern California In ternational Gateway Project or “SCIG

. ” On October 31, 2005, a supplemental notice of p reparation was issued

. Nearly six years later, in September 2011
, t he harbor department released a d raft environmental impact report (DEIR ) for the project . Based on comments received du ring the public comment period, the harbor department revised major portions of the DEIR and on September 27, 2012, the harbor department released a r ecirculated DEIR (RDEIR )
for a 45

- day public r eview period. On February 22, 2013, the harbor department issued the FEIR. T he FEI R
describes the proposed project as consisting of “ the construction and operation of a new

near

- dock intermodal rail facility by BNSF that would handle containerized cargo transported through the ports .” 5 The pro ject would have the capacity to handle an
estimated 1.5 million intermodal containers per year at full operation and would generate approximately 2 million truck t rips between the facility and port terminals per year

. 6 “ The primary objective and fundamenta l purpose of the proposed p roject is to provide an
additional near

- dock intermodal rail facility serving the San Pedro Bay Port marine

5 Cargo that comes through the ports is referred to as either “ intermodal ” or

“ transloaded. ” Shipment of i ntermodal cargo is made under a single ocean carrier bill of lading. The cargo is transferred in an intact shipping container directly from the port to the railya rd. Transloaded cargo has been transferred from 40

- foot shipping containers to 53

- foot domestic containers at a warehouse before arriving at the railyard.

6 The FEIR uses different measures to quantify cargo capacity at the railyards. Twenty

foot equivalen t u nits (TEUs) are used to measure container volume handled at individual railyards. Capacity is also quantified in terms of projected “lifts
, ” referring to “ the movement of a container from a truck to a train or vice versa. ” At full operation, the project would have the capacity to handle a maximum of 2.8 million TEUs, or 1.5 million lifts

.5

terminals that would meet current and anticipated containerized cargo demands, provide shippers with comparable intermodal options, incorporate advanced environmental controls, and help convert existing and future truck transport into rail transport, thereby providing air quality and transportation benefits. ” The FEIR explains, “ The need for
additional rail faciliti es to support current and expected cargo volumes, particularly intermodal container cargo was identified in several recent studies. As discussed in those studies, even after maximizing the potential on

- dock rail yards, the demand for
intermodal rail servic e creates a shortfall in railyard capacity. Those studies specifically
identified a need for additional near

- dock intermodal capacity to complement and supplement existing, planned, and potential on

- dock facilities. ” At present, BNSF processes i ntermodal
, t ransloaded and domestic cargo at the Hobart yard. The FEIR indicates that upon completion of the new railyard, BNSF intends to transfer 95 percent of its intermodal business at Hobart to SCIG. “The proposed project would eliminate a portion

. . . of exi sting and future intermodal truck trips between the ports and [Hobart]

. . . by diverting them to the proposed SCIG facility.”
Stated different ly , the estimated 2 million truck trips between the port and the proposed new railyard “ would replace truck trips that would otherwise go to the [Hobart] y ard in East Los Angeles, a journey of 24 miles each way.”
BNSF’s domestic and transload ed cargo business will remain at the Hobar t yard

. The FEIR does not analyze the level of activity that will remain at Hobart u pon construction of the new railyard or the impact of additional traffic that may then be
handled at Hobart . The document explains, “ Whether or not SCIG is built, domestic traffic (i.e., traffic from non

- Port sources) and transloaded cargos to Hobart will likely continue to grow at a rate related to market demand in the United States economy.

. . . Because that growth is not dependent on SCIG being built, it is not appropriate to evaluate that growth as part of SCIG, or any truck trips not going to SCIG. ”
The FEIR concludes that the project would have significant unavoidable environmental impacts on , among other things, air quality, noise , greenhouse gas
emissions and traffic

.6

On March 7, 2013, the board of harbor c ommissioners certified the FEIR , adopted a statement of overriding considerations
, and approved the pro ject

. T he resolution was appealed to the Los Angeles City Council wh ich
, on May 8, 2013 , affirmed the
certification and approval. In June 2013, seven petitions for writ s of mandate we re filed in the Los Angeles County Superior Court, challenging the certification and approv al

. The petitions were consolidated for all purposes and later transferred to the Contr a Costa County Superior
Court. In May 2014, pursuant to a stipulation, the Att orney General intervene d in the action filed by the City of Long Beach

. On March 30, 2016, the trial court issued its o pinion and o rder on the consolidated petitions. The court found the FEIR’s project description and analysis of indirect impacts and gro wth

- inducing impacts to be deficient because they fail to discuss the reasonably
foreseeable indirect impacts from freeing capacity at the existing Hobart yard

. The court
also held that the F EIR’s analysis of n oise, t raffic, a ir q uality, g reenhouse g ases and

c umulative environmental i mpacts and of m itigation m easures are inadequate. T he reafter,
the court issued a peremptory writ of mandate directing the City of Los Angeles to set aside its certification of the FEIR and approval of the project and to compl y with CEQA

. T he City of Los Angeles and BNSF timely filed notices of ap peal in the
consolidated proceedings

. Discussion
1. Standard of Review “In reviewing compliance with CEQA, we review the agency's action, not the trial court's decision. [Citation.] In doing so, our ‘inquiry “shall extend only to whether there was a prejudicial abuse of discretion.” [Citation.]’ [Citation.] Abuse of discretio n is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citation.] Substantial evidence in this context means ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a7

conclusion, even though other conclusions might also be reached.’ ” ( Communities for a
Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 80.)
2. Exhaustion of Admin istrative Remedies

“ ‘Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.’ [Citation.] Subdivision (a) of CEQA section 21177 sets forth the exhaustion requirement here. That requirement is satisfied if ‘ the alleged grounds for noncompliance with [CEQA] were presented

. . . by any person during the public comment period provided by [CEQA] or prior to the close of the public hearing on the project before the issuance of the notice of determination.’ ” ( Stat e Water Resources
Control Bd. Cases (2006) 136 Cal.App.4th 674, 791

- 792, fn. & italics omitted.) “ ‘The rationale for exhaustion is that the agency “ ‘is entitled to learn the contentions of interested parties before litigation is instituted. If [plaintiff s] have previously sought
administrative relief

. . . the [agency] will have had its opportunity to act and to render litigation unnecessary, if it had chosen to do so.’ ” [Citation.]’ [Citations.] [¶] To advance the exhaustion doctrine’s purpose ‘[t]he “e xact issue” must have been presented to the administrative agency.

. . . ’ [Citation.] While ‘ “less specificity is required to preserve an issue for appeal in an administrative proceeding than i n a judicial proceeding” .

. .

‘ generalized environmental comm ents at public hearings,’ ‘ relatively

. . . bland and general refe rences to environmental matters’ [citation], or ‘ isola ted and unelaborated comment[s]’ [citation] will not suffice. The same is true for ‘ “[g]eneral objections to project approval.

. . . ” [ Citations.] ’ [Citation.] ‘ “[T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” ’ ” ( Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535

- 536.) “ An appellate court employs a de no vo standard of review when determining whether the exhaustion of administrative remedies doctrine applies. ” ( I d

. at p. 536. ) Appellants contend the court lacked jurisdiction to consider certain objections to the sufficiency of the FEIR asserted by the Attorney General because those objections8

were not made by any party in the administrative proceedings. 7 The Attorney General argues that he is exempt from the exhaustion requirement under section 21177, subdivision (d). 8 ( Maintain Our Desert Environment v . Town of Apple Valley (2004) 124 Cal.App.4th 430, 433 [ U nder section 21177, subdivision (d), “ the Attorney General of California need not comply with the exhaustion of administrative remedies requirement. ”].) Appellants argue that the exemption in subdivi sion (d) applies only to identity exhaustion under subdivision (b) and not to issue exhaustion under subdivision (a); that is, that the Attorney General may assert objections that were raised by someone during the administrative proceedings, even if not by the Attorney General, but may not assert objections that no party raised during those proceedings. E xcusing the Attorney General from the issue exhaustion requirement does create the possibility that an environmental impact report may be held inadequate f or a deficiency that was never brought to the agency’s attention and which the agency had no opportunity to correct. Nevertheless, w e agree with the Attorney General and the court in Maintain Our Desert Environment v. Town of Apple Valley
, supra , 124 Cal.A pp.4th 430 that the plain language

7 Appellants assert that the following contentions were not presented in the administrative proceedings: (1) The FEIR failed to analyze single

- event maximum noise impa cts using the L max noise metric as required by the City of Long Beach’s noise ordinance; (2) The F EIR’s density calculations misstate the number of trucks that will utilize San Gabriel Avenue; and (3) The F EIR does not explain whether the non

- cancer hazard index levels refer to the combined hazard indices for the p roject and other past, present, and reasonably foreseeable future projects.

8 S ection 21177 provides in relevan t part: “(a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or i n writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of notice of determination pursuant to Sections 21108 and 21152. [¶]

. . . [¶] (d) This section does not apply to the Attorney General.”9

of section 21177, subdivision (d), exempts the Attorney General from all statutory exhaustion requirements

. Contrary to appellant s ’ argument, the legislative history does not create any ambiguity in the statutory langua ge, let alone establish with certainty that the Legislature intended subdivision (d) to exempt the Attorney General only from identity exhaustion under subdivision (b). 9 To the contrary , the unqualified exemption is consistent with other statutory provisio ns that recognize the Attorney General’s unique authority to protect the environment of the State of California. (See Gov. Code
, § 12600, subd. ( b) [“ It is in the public interest to provide the people of the State of California through the Attorney General with adequate remedy to protect the natural resources of the State of California from pollution, impairment, or destruction. ”]; Gov. Code
, § 12606 [“ The Attorney General shall be permitted to intervene in any judicial or administrative proceeding in which facts are alleged concerning pollution or adverse environmental effects which could affect the public generally. ”]; § 21167.7 [requiring every person who files an action challenging the decision of a public agency on the grounds of noncompliance with CEQA to provide copies of their pleadings to the Attorney General and precluding the granting of any relief until such copies have been furnished.].

9 Appellants cite two pieces of legislative history: (1) a report prepared for the Assembly Committee on Natural Resources by the State Bar Committee on the Environment of the State Bar of California [Com. on the Environment of the State Bar of Cal., Rep. to Assem. Com. on Nat. Resources, The California Environme ntal Quality Act: Recommendations for Legislative and Administrative Change, Dec. 1983] and (2) an Assembly Committee analysis of the legislation that enacted section 21177 [ Cal. Natural Resources Agency, Bill Analysis of Assem. Bill No. 2583 (1983

- 1984 Re g. Sess.) as amended March 22, 1984] . The B ar committee r eport at pages 93

- 95 merely acknowledges the common law exception to identity exhaustion and urges that the exception be codified. The bill a nalysis at pages 1 and 9 similarly indicates that a purpos e of the statutory amendment is to “limit standing to those individual[s] who have participated in the public review process” but notes that this identity exhaustion requirement would not apply to the Attorney General. Both reports are silent with respect to issue exhaustion. Appellants’ request for judicial notice of these documents as well as the Senate Committee on Governmental Organization, Staff Analysis of Assembly Bill No. 2583 (1983

- 1984 Reg. Sess.) as amended June 20, 1984
, is granted.10

3. Project Description “Under CEQA, a ‘project’ means ‘ the whole of an action , which has a potential for
resulti ng in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.

. . . ’ [Citation s .] It refers to the underlying ‘activity’ for which approval is being sought. [Citation.] The entirety of th e project must be described, and not some smaller portion of it. [Citation.] The Guidelines specify that every EIR must set forth a project description that is sufficient to allow an adequate evaluation and review of the environmental impact.” ( San Joaquin Raptor
Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 654 .) “[A] project description that gives conflicting signals to decision makers and the public about the nature and scope of the project is fundamentally inadequate and misleading. [C itation.] ‘Only through an accurate view of the project may affected outsiders and public decision

- makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., t he ‘no project’ alternative), and weigh other alternatives in the balance.’ ” ( Citizens for a Sustainable Treasure Island v. City and C oun ty of San Francisco (2014) 227 Cal.App.4th 1036, 1052.) The trial court found that the project description i s deficie nt because it fail s to include “ a discussion of the reasonably foreseeable indirect changes at Hobart. ” Appellants contend the court’s holding is based on a misunderstanding of what must be
included in a project description and confus es the project’s description with the analysis of the project’s environmental impacts. (See El Dorado C oun ty Taxpayers for Quality
Growth v. County of El Dorado (2004) 122 Cal.App.4th 1591, 1598 [“[A] project description describes the project; it does not an alyze the project ’ s environmental impacts.”].) As appellants state, “ the activity subject to governmental approval is ‘ the construction and operation of a new near

- dock intermodal rail facility by BNSF that would handle containerized cargo transported thro ugh the ports of Los Angeles and Long
Beach

. . . . ’ That activity ‘ require[d] discretionary approval from [ the harbor department ] and, therefore, it is subject to the requirements of CEQA. ’ ”11

T he project description here accurately describes the pertine nt features of the construction and operation of SCIG. With respect to the project’s cargo handling capacity, the FEIR “ takes a conservative approach : it analyzes the capacity the p roject applicant (BNSF) has applied for (a maximum of 2.8 million TEUs, or 1.5 million lifts at full operation), and assumes that market factors would determine the actual demand that
it serves. ” R espondents argu e that the description of the project is misleading and
inaccurate because it “defines the project as replacing

— rather than increasing

— existing BNSF capacity.” They argue that “ [ r ] ather than accurately characterizing the project as increasing BNSF’s cargo

- handling capacity by an additional 1.5 million cargo containers per year, the EIR states that SCIG will ‘replace’ or ‘eliminate’ operations from BNSF’s Hobart yard.” They suggest that by defining the project “not as creating additional capacity to handle increased cargo volumes, but as ‘el iminating’ existing activities at Hobart,” the EIR “profoundly skews the environmental analysis.” Respondents improperly characterize the project description. T he FEIR accurately states that the project will permit BNSF to divert a portion of its operati ons from Hobart
to SCIG and also acknowledges that the volume of cargo serviced at Hobart will continue to grow

. Neither the project description nor any part of t he FEIR suggest s that BNSF’s
total capacity will remain un changed as a result of the project. There is nothing misleading or inaccurate about the project description . (See El Dorado County Taxpayers for Quality Growth v. County of El Dorado , supra, 122 Cal.App.4th at pp. 1597

- 1598 .)
S an Joaquin Raptor Rescue Center v. County of Merced, supra , 149 Cal.App.4th
645 , cited by respondents, is distinguishable. That case involved an environmental impact report in connection with the issuance of a conditional use permit for the proposed expansion of an aggregate mining operation. T he EIR described the proj ect as an expansion that includes the mining of additional acreage “ but is not proposed to substantially increase daily or annual production .” ( Id. at p. 650.) However, t he court found that “ despite assurances to the contrary, the Project includes a substa ntial increase in mine production. [¶] .

. . By giving such conflicting signals to decision makers and the public about the nature and scope of the activity being proposed, the Project description12

was fundamentally inadequate and misleading.” ( Id . at p p. 6 55

- 656.) The “curtailed and inadequate characterizations of the Project were enough to mislead the public and thwart the EIR process. ” ( Id. at p. 656.) “ The public hearings reflect similar confusion about the level of production allowed under the Project.” ( Id. at p. 657.) As explained above, neither the pr o

ject description n or any portion of the FEIR in this case indicates that BNSF’s overall capacity will not be significantly increased as a result of the construction of the new railyard

. T he FEIR is requi red to evaluate any indirect environmental i mpact that may be caused by the project aris ing from increased availability of capacity at
Hob a rt, but there is no deficiency in the manner in which the FEIR describes the SCIG project.
4. Indirect Impacts on the Hobart Y ard
“I n evaluating the significance of the environm ental effect of a project, the lead

a gency shall consider .

. . reasonably foreseeable indirect physical changes in the environment which may be caused by the project

. ” ( CEQA Guidelines
, § 15064,
subd. (d).) “An indirect physical change in the environment is a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project.

. . . ” ( CEQA Guidelines, § 15064, subd. (d)(2).) “An indirec t physical change is to be considered only if that change is a reasonably foreseeable impact which may be caused by the project. A change which is speculative or unlikely to occur is not reasonably foreseeable.” ( CEQA Guidelines, § 15064, subd. (d)(3).) In direct impacts “may include growth

- inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural systems, including ecosystems.” ( CEQA Gu idelines, § 15358, subd. (a)(2).) The trial court found that the FEIR’s analysis of indirect impacts i s deficient
because it omit s any discussion of the reasonably foreseeable impacts that will be caused by freeing capacity at the Hobart yard

. The court observed that by constructing SCIG, BNSF will “ nearly double” its capacity and the FEIR fail s to analyze how “BNSF is going to utilize Hobart once additional capacity is created.”13

Master Response 3 of the FEIR was issued in response to the large number o f comments raising concerns about the project’s indirect impacts at the Hobart yard

. The

response provides in relevant part, “A number of commenters have criticized the RDEIR for not evaluating regional changes in goods movement that they posit might occur with implementation of SCIG. Their reasoning is that if SCIG absorbs the international cargo currently going to Hobart, then domestic and transload cargo will backfill the freed

- up capacity

. . . . Other commenters have criticized the RDEIR for not includ ing future operations at Hobart (i.e., truck and train trips) in the analyses. These assertions are speculative, and not supported by facts or evidence. [¶] In fact,

. . . the suggestion that cargo would materialize to backfill the freed

- up capacity [is] w holly unsupported by the
facts. ” The record reflects that at present there is no unmet demand for rail service at the
Hobart yard that will give rise to additional traffic when intermodal traffic is diverted to the new railyard. As BNSF explained in its N ovember 28, 2012 memorandum to the harbor department, “ BNSF is not aware of any currently unmet demand for cargo transportation that would be generated as a result of moving direct intermodal international cargo from Hobart to SCIG. All Southern California domestic cargo requiring rail transport is already being transported by rail. There is no latent demand for rail transport that is not being served. ”
Master R esponse 3 further explained
, “ there is no reason to believe that cargo
would somehow materialize to fill the freed

- up capacity. Hobart and other intermodal facilities already accept all cargo in the region that demands rail transport and are not yet operating at capacity, meaning that there is no unserved cargo that would appear to fill
fr eed

- up capacity. This conclusion is reinforced by the results of analyses showing that existing railyards, while busy, are not operating at their maximum practicable capacity (MPC); for example, Hobart’s current MPC is approximately 1.7 million lifts, wher eas, as described above and in Appendix G4, in 2010 it handled only about one million lifts, approximately one

- half of them direct international containers. BNSF has already expanded Hobart, but cargo volumes, rather than suddenly increasing, actually decr eased14

between 2007, when the expansion was completed, and 2010 (BNSF, 2012a; BNSF, 2012b). Those volumes were driven by regional and national economic factors (i.e., the 2008 recession), not by the availability of capacity at Hobart. ”
Domestic and transl oad cargo volumes are anticipated to increase in the future, but
the freed

- up capacity at Hobart will not give rise to indirect environmental impacts for at least two reasons. First, as shown by t able 2.2 in the FEIR, cited in the master response , “domestic and transload cargo volumes would increase whether or not SCIG is built, and

. . . the increases would be the same under either scenario. This is true because de mand is independent of capacity

— the region’s economy would grow at a rate unrelated t o capacity at Hobart.

. . . [¶] Hobart will continue to accept transload and domestic cargo
with or without SCIG. ” The Intermodal Rail Analysis, prep ared by the harbor department, a ppendix G4 of the FEIR
, e xplains, “ The market demand for pure domestic

carg o and transload cargo is independent of a project’s capacity. In the case of the SCIG project, the region’s economy drives the demand for domestic and transload cargo which would grow at a rate unrelated to capacity at Hobart. A facility’s capacity does no t create growth in demand. ” Second, substantial evidence supports the finding that BNSF has capacity at Hobart to meet all projected growth until at least 2035. 10 Contrary to the finding of the trial court, s ubstantial evidence supports the growth predict ions used in FEIR. The FEIR predicts that by 2030 the ports will be processing 34.6 million TEUs annually

. This prediction is based on a long

- term forecast prepared by the Global Insight and Tioga Group in 2009. The “IHS Global Insight/Tioga” forecast i s “ a demand

- based (i.e., unconstrained) forecast, that assumed transportation and infrastructure capacity would be available to meet the demand.” The trial court acknowledged the “considerable studies done by and for the Port about the amount of [intermodal] business that will be generated by the world economy over various periods of time.”

10 Appellant s suggest this date is actually 2046 because the ports are expected to reach capacity in 2035 and thus no further growth is projected thereafter.15

The FEIR assumes that domestic cargo volumes will “ continue to grow at a rate of 2% per year with or without SCIG being built .” 11 As the trial court noted, other studies
al so utilize an estimated growth in domestic cargo of 2 to 3 percent annually. T he
2 percent annual growth figure appears to be based on a “ IHS Global Insight database ” known as “TRANSEARCH” that “ shows projections of cargo tonnage for domestic and
internati onal goods movement through 2040. ” According to this database, the domestic

cargo sector in the applicable region is projected to grow at rates between 2.1 percent and
3 percent annually from 2012 to 2035. Contrary to respondents’ arguments, these growth

r ates are not unsupported assumptions. They are reasoned predictions by experts on which the city is entitled to rely. ( Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1467.)
As t he FEIR explains, “ BNSF has already undertaken phy sical modifications and operational changes that have expanded the capacity of the Hobart Yard. To accommodate future increased cargo volumes at Hobart, BNSF would undertake additional operational and physical changes.

. . . BNSF would implement additional physical changes to the Hobart and Commerce facilities that would increase their capacity; BNSF represents that those changes could be implemente d without discretionary permits. .

. . [ 12 ] The operational changes and the approved expansions would allow Hobart/Commerce to handle approximately 3 million lifts

. . . per year by 2035, which is approximately 1 million lifts more than its existing capacity. The Port

11 Table 2.2, which contains the predicted growth data shows the domestic cargo business growing by 66 percent between 2010 and 2035 (an average rate of 2.64 percent per year).

12 In response to comments, the FEIR elaborates: “ Further facility developments, technological and operational changes could be made to accommodate the demand projected in the 2009 Cargo For ecast. For example, BNSF could construct additional tracks. 250 wheeled parking spaces could be constructed on property currently owned by or otherwise available to BNSF. With respect to future operational changes, additional switching support, increased

s tacking, additional cargo handling equipment and manpower would enhance the strip track and parking turn times, thereby further increasing capacity. All of the foregoing may be implemented without discretionary permitting.”16

independently undertook enginee ring analyses of the Hobart/Commerce Yard that confirmed BNSF’s representations of the potential to expand capacity at these facilities.”
In the with

- SCIG (proposed p roject) scenario, BNSF would not have to make changes to its Hobart operations other tha n to add capacity at some point in the future when demand exceeds capacity (projected by independent analysts to occur as soon as 2023). Since BNSF already has the right to expand its Hobart facilities, the freeing of capacity at Hobart by transferring int ermodal traffic to the new railyard may at most delay the point at which BNSF elects to expand the Hobart facilities. T he expansion will not be the consequence of constructing the new railyard.
Because there is a sufficient evidentiary basis for the city ’s conclusion that a predicted amount of economic growth will occur with or without this project and that the project is not necessary to enable BNSF to service the projected growth at Hobart, any such growth is not an indirect impact of the SCIG project t hat the FEIR was required to study

. 5. Growth Inducing Impacts *
S e ction 21100, subdivision (b)(5), requires that an EIR analyze any “growth

inducing impact[s] of the proposed project” including the ways in which the proposed project could foster economic gro wth , either directly or indirectly, in the surrounding
environment. ( CEQA Guidelines, § 15126.2, subd. (d).) Chapter 8 of the FEIR analyzes the growth

- inducing impacts of the project.
The trial court found that with the exception of the potential growth

- inducing impacts at the Hobart yard discussed above, respondents failed to “make clear what growth in the surrounding environment is omitted from the EIR.” The court acknowledged their argument that “the potential for addi tional cargo handling capacity”
could foster e conomic growth but concluded that the “great majority” of references in the FEIR suggest that “an expanded Hobart” could accommodate predicted growth in intermodal container cargo. The court added that despite respondents written arguments,

* Part 5 is not certified for pu blication. (See fn., ante , p. 1.)17

“at oral argument, the issue of ‘growth

- inducing impacts’ was largely subsumed in the argument over Hobart. ” Ultimately, the court concluded, “ Petitioners make no serious argument about any other growth inducing effect. Of co urse, they bear the burden of proving that the EIR has omitted some matter. Thus, the court gives no further consideration to any effect other than at Hobart. ” On appeal, respondents argue the FEIR omits meaningful consideration of how the
increase in BN SF’s cargo

- handling capacity will induce growth at the ports. A ppellants
contend correctly that this argument in not cognizable because respondents did not file a

cross

- appeal. “As a general matter, ‘ “a respondent who has not appealed from the judgment ma y not urge error on appeal.” ’ [Citation.] ‘To obtain affirmative relief by way of appeal, respondents must themselves file a notice of appeal and become cross

appellants.’ ” ( Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 585 [ Project opponen ts , who did not cross

- appeal, waived contentions that trial court erred in not setting aside a mitigated negative declaration on additional grounds .] .)
Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1181 ( Anderson ) is instructiv e. In that case, the trial court agreed with project opponents that the EIR for a proposed shopping center and gas station failed to adequately evaluate the traffic and air quality impacts of the gas station. The court severed the gas station from
the rest of the project and allowed the rest of the project to proceed. ( Id . at p p. 1177

- 1178.) On the appeal by the project opponents of the severance order, the project proponents argued the trial court erred in finding the EIR deficient regarding the gas
station ’ s traffic and air quality impacts. ( Id . at p. 1 181.) The Court of Appeal “deem [e d]
the claim forfeited because [the city] and Wal

- Mart have not cross

- appealed on this poin t.” ( Id . at pp. 1181

- 1182.) Just as in Anderson , respondents have forfeited any claim that the trial court erred in rejecting their challenge to the analysis of growth

- inducing impacts, other than Hobart. We note briefly, however, that respondents’ argume nt is without merit in any

event. With respect to economic growth

- inducing impacts, the FEIR states, “[B]y facilitating the movement of containers through the ports of Los Angele s and Long18

Beach, the proposed p roject would directly accommodate future econo mic growth.” The
FEIR concludes that “a lthough the proposed p roject would provide a needed goods movement facility, it would not induce more cargo through the San Pedro Bay ports. The estimated demand for intermodal cargo capacity in the Los Angeles region can be accommodated by existing UP and BNSF intermodal facilities, especially in view of the planned capacity improvements

. . . .” As discussed above, the city reasonably relied on expert predictions of the growth of domestic and international cargo and on expert opinions that market not capacity would drive growth. Likewise, as discussed above, substantial evidence supports the conclusion in the FEIR that BNSF has sufficient capacity at Hobart, with anticipated expansion, to accommodate projected growth. Accordingly, there was no deficiency in the FEIR’s analysis of growth

- inducing impacts. 13

6. Sheila Commerce Mech anical Repair Facility (Sheila y ard) * The Sheila y ard is a locomotive mechanical shop that primarily supports operations at the Hobart yard . As w ith Hobart, the FEIR concludes that no additional analysis of indirect imp acts at Sheila y ard is required because “[t]he locomotives that would haul trains to and from the SCIG facility would not be additional locomotives, but rather they would be existing and future locomotives that would haul international cargo
trains with or without the p roject.” T h e trial court recognized that “to some extent this issue follows directly from the Hobart issue.” The court explained, “The c ourt has found
the EIR deficient for its failure to evaluate Hobart. If the Port chooses to supplement the EIR with an evaluation of Hobart, then it must consider whether its conclusions with respect to Hobart lead to the conclusion that additional work will be done at Sheila which

13 Likewise, we summarily reverse the trial court’s related finding that the FEIR is deficient because it does not address Hobart yard in the cumulative impacts chapter. In light of our conclusion regarding the FEIR’s trea tment of the Hobart facility, we need not consider BNSF’s alternative argument that the ICC Termination Act (49 U.S.C. § 10501(b)) preempts efforts “to use CEQA’s judicial review process to delay or prevent construction.”

* Part 6 is not certified for publication. (See fn., ante , p. 1.)19

may h ave environmental impacts.” Having found no basis to require further analysis of impacts arising from the freed capacity at Hobart, we similarly reject the argument that additional analysis of impacts at Sheila yard is required.
7. Air Quality Impact AQ

- 3 assesses whether the proposed project will result in significant emission of criteria pollutants. In making this analysis, the FEIR measures and models in pounds per day (lbs/d) the mass of pollutants to be emitted by operation of the project.
The FEIR inc ludes data tables that present both the unmitigated average daily criteria pollutant emissions from operation of the proposed project in the benchmark years 2016, 2023, 2035, 2046, and 2066 and estimated peak daily unmitigated emissions for the same
benchm ark years. 14 Applying this data to applicable standards of significance, the FEIR concludes emissions “are below the significance thresholds for [oxides of nitrogen (NO x ) 15 , particulate matter less than 10 microns in diameter (PM 10 ) and particulate matter
le ss than 2.5 microns in diameter (PM 2.5 )] for all analysis years. Therefore the unmitigated project would have less than significant impacts.” Similar analysis of the no project alternative concludes that emissions under the no project alternative also woul d not be significant. 16 Moreover, daily emissions of NO x , PM 10 and PM 2.5 under the project would be consistently lower than under the no project alternative in each of the benchmark years. 17

14 The benchmark years were selected to “correspond[] to the opening year (2016), the full facility throughput year (2035), and the lease termination year (2066).”

15 “NO x is a generic term for the total concentration of mono

- nitrogen oxides, nitric oxide (NO) and nitrogen dioxide (NO 2 ).” As the trial court noted, “the EIR used a conversion rate to translate NO x concentrations to NO 2 concentrations.”

16 The no project alternative assumed that “[b]usi n esses currently occupying the p roject site would continue to utilize their existing facilities, and the activities of these businesses would be expected to grow by 10 percent from baseline levels by 2016, after which no further growth is assumed.”

17 The s ole exception appears to be in project year 2035 in which the peak daily operations emissions of NO x from the project will exceed emissions under the n o project alternative by 22 pounds a day.20

Impact AQ

- 4 assesses whether project operations will result in significant “offsite ambient air pollutant concentrations” in the geographic area surrounding the project site. Under this analysis, the FEIR measures and models the concentration of pollutants in micrograms per cubic meter (μg/m 3 ) that would occur at diff erent geographic locations within the designated area as a result of operations at SCIG. The FEIR used “[d]ispersion
model ing of onsite and offsite p roject operational emissions

. . . to assess the impact of the p roject on local offsite ai r concentrations. ” The air dispersion model used was “designed for use with emission sources situated in terrain where ground elevations can exceed the stack heights of the emission sources. The

. . . model requires hourly meteorological data consisting of wind direction, wind speed, temperature, stability class, and mixing height. The

. . . model allows input of multiple sources and source groupings, eliminating the need for multiple model runs.” “[R]ather than modeling each analysis year to identify the maximum pollutant concentrations, a single composite emiss ions scenario was modeled as a conservative approach. The composite emissions scenario is a combination of the peak year (for the annual NO 2 and PM 10 concentration thresholds), peak day (for the 24

- hour

. . . PM 10 , a nd PM 2.5 concentration thresholds), or peak hour (for the 1

- hour NO 2 . . . ) emissions within the modeling domain by source category. Note that the peak year or day emissions for a particular source category may not necessarily occur in the same year or day as the other categories.” The FEIR states that t his methodology, characterized by appellants and the trial co urt as a “wors t case” analysis, “results in conservative predictions of concentrations from project operational
emissions.” Applying this methodology, the FEIR concludes that project operations will have a significant impact on air quality because ambient air pollutant concentrations “would exceed the SCAQMD [South Coast Air Quality Management District] thresholds for 1

- hour and annual NO 2 , 24

- hour and annual PM 10 , and 24

- hour PM 2.5 .”The FEIR also concludes that the no project alternative will result in similar significant impacts. Specifically, “The No Project Alternative would exceed the SCAQMD thresholds for 1

-21

hour and annual NO 2 and 24

- ho ur and annual PM 10 .” Ground

- level concentration of
PM 2.5 is not projected to exceed standards of significance under the no project alternative. Although the FEIR does not contain a table comparing the results of the modeling for the project and no project altern ative, comparing table 3.2

- 28 (maximum o ffsite N O 2 concentrations associated with o perations of the p roject ) and table 5.7 (maximum o ffsite
NO 2 c on centrations associated with operations of the no project a lternative) shows that the total ground leve l concentration of NO 2 under the no project alternative will exceed that of the project. But the opposite is true for the concentration of particulate matters. A comparison of table 3.2

- 29 (maximum o ffsite PM 10 and PM 2.5 concentrations associated with oper ation of the project) with table 5.8 (maximum o ffsite PM 10 and PM 2.5 concentrations associated with operation of the no project a lternat ive) shows that over a
24

- hour period ground level concentration of PM 10 for project operations will be more
than three times greater than the concentration under the no project alternative (9.1 μg/m3 to 2.9 μg/m3) and that ground level concentration of PM 2.5 for project operations will be five times greater than the concentration under the no project alternative (4.5 μg/m3 to 0.9 μg/m3). Figures included in s ection 3.2 and a ppendix C2 of the FEIR show the geographic areas in which the ground

- level concentration of various particulates are projected to exceed standards of significance. W hile the geographic area impacted by significant
concentration of NO 2 remains the same, the area impacted by significant annual and 24

- hour concentrations of PM 10 varies considerably. The significant concentration of PM 10 under the no project alternative occurs just to the east of Interstate 710, while the significant concentration of PM 10 under the project is centered over and adjacent to the project site. Figure 3.2

- 9 shows that the impact of significant ground

- level concentration
of PM 2.5 is restricted to small areas directly over the proj ect site. The trial court found that the composite emissions scenario is misleading and provides insufficient information to permit meaningful comparison of the project and the no project alternative. The court explained, “Had the screening analysis shown that there would never be an exceedance of a concentration standard of significance the analysis22

could have ended there. [¶] But that is not what the screening analysis showed.

. . . [¶]

. . . [¶] Having screened

— and having found potential exceedances fro m SCIG

— the EIR stopped its analysis. It left the public and decision

- makers in the dark about whether there
would be exceedances of NO 2 , PM 2.5 and PM 10 standards in any given year at a given place. By combining concentrations from different years (for scre ening purposes) the EIR never examined the impact of SCIG in any given year. It showed that there could be an impact, but it did not examine what that impact might be, who might be affected, and for how long.” The trial court emphasized that this “is not a small point. The SCIG has been presented as a project that will improve air quality significantly.

. . . Those commenting on the EIR, as it was being developed, expressed considerable concern about the impact of air pollution on those who live near the pr oposed project.” Appellants argue that the composite emissions scenario methodology is a “common industry

- accepted protocol” that is amply supported by substantial evidence, including expert opinion. They argue that contrary to the court’s conclusion, thi s methodology is not misleading nor did it result in the omission of any necessary
information from the FEIR. As appellants’ argue, the FEIR analysis was conducted in accordance with the harbor department’s protocol for criteria pollutant dispersion mode ling. The “Methodology for Criteria Pollutant Dispersion Modeling in Port of Los Angeles CEQA Documents” cited by appellants recommends using “screening

- level dispersion modeling with conservative emissions” to screen out pollutants followed by modeling of maximum pollutant concentrations each project analysis year. The protocol recognizes, however, that for “large CEQA projects

. . . it is often not practical to perform criteria pollutant dispersion modeling separately for each project analysis year becaus e of the sheer number of model runs (pollutants × averaging periods × alternatives × mitigated & unmitigated × coarse & fine grids). To further complicate matters, the spatial and physical diversity of the source types often make it impossible to determine which analysis year would yield maximum concentrations. For example, cargo handling equipment emissions often peak in the early years of a project, while ocean

‐ going vessel23

(OGV) emissions often peak in the latter years; the concentrations associated with combined emissions could peak in either year or sometime in between. [¶] As a conservative solution, the air quality analyst may choose to limit the number of modeling runs by modeling a single composite emissions scenario for each combination of pollutan t, averaging p eriod, and project alternative.

. . . The composite emissions scenario would include the highest emissions by source category over the appropriate range of analysis years. The highest emissions for a particular source category may not necessa rily occur in the same year as the other categories. For example, project emissions could be grouped into the following source categories: trucks, cargo handling equipment, OGVs, harbor craft, locomotives, and construction. The maximum emissions over the r ange of applicable analysis years are determined separately for each source category. These maximum emissions are then modeled together to conservatively predict maximum ground

‐ level criteria pollutant concentrations for the pollutant and averaging period of
interest. This screening method would result in conservative (i.e., over

‐ predicted) concentrations from project emissions.” “Under CEQA, an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts. Simply because an additional test may be helpful does not mean an agency must complete the test to comply with the requirements of CEQA. [Citation.] An agency may exercise its discretion and decline to undertake additional tests.” ( Save Panoche Valley v. San Benito C ounty (2013) 217 Cal.App.4th 503, 524.) It is the objector’s burden to establish that the methodology used was misleading or that “relevant, crucial information” was omitted that rendered the analysis legally inadequate. ( San Joa quin Raptor/Wil dlife Rescue Center v. County of Stanislaus
, supra, 27 Cal.App.4th at pp. 738

- 739; North Coa st Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 643.)24

While we do not agree that the composite emissions, or worst case, methodology is misleading, 18 we do agree with the trial court that the analysis of air pollution concentration impacts is nonetheless incomplete. “When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness an d a good faith effort at full disclosure. [Citation.] ‘The EIR must contain facts and analysis, not just the bare conclusions of the agency.’ [Citation.] ‘An EIR must include detail sufficient to enable those who did not participate in its preparation to u nderstand and to consider meaningfully the issues raised by the proposed project.’ [Citation.] Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.” (

Association of Irritated Residents v. Co unty of Madera (2003) 107 Cal.App.4th 1383, 1390

- 1391.)

18 The trial court offered the following hypothetical to demons trate how the methodology could be misleading: “Suppose the following: [¶] • the highest value for the No Project alternative occurs in 2016, while the highest value for the Project occurs in 2035; [¶] • the 2016 No Project value is higher than the 2035 Pr oject value; [¶] • for all years after 2016 the highest value for the No Project alternative is lower than the highest value for the Project. [¶] The composite analysis would have the reader of the EIR believe that the No Project alternative is worse than the Project, because the analysis is characterized by the highest value that ever occurs

— even if just once in 50 years. This shows nothing about how the two alternatives compare in any given year. Indeed, it is terribly misleading.” Respondents suggest th at the “undisputed facts” in the record support the factual basis for the trial court’s hypothetical and demonstrate that the methodology is misleading. However, as set forth above, the air quality modeling shows that the no project’s emissions levels woul d be consistently higher than project emissions in the benchmark years. There is no factual basis for the trial court’s hypothetical, which assumes that the impacts of the n o p roject alternative would be consistently lower than those of the p roject in late r years. Respondent’s defense of the facts underlying the hypothetical mistakenly considers emissions from only the project site, disregarding projected truck emissions on the I

- 710 freeway . The trial court’s unsupported hypothetical does not show that the analysis of air pollution concentrations is misleading. (See Save our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 121 [“ ‘ [ A ] n EIR must focus on impacts to the existing environment, not hypothetical situations.’ ”]. )25

The trial court concluded that the analysis of air pollution concentrations is inadequate because a reader cannot compare the ambient air pollutant concentrations under the project and no project sce narios at any given point in time. Appellants contend that CEQA imposes no such specific requirement. They argue that the FEIR disclosed that the project would result in significant air quality concentration impacts and thereby adequately informed the publ ic of the project’s impacts. They suggest that “an EIR that performs a ‘worst

- case

- scenario’ analysis of ‘the greatest potential impacts’ of a project properly ‘promote[s] informed decision making, and evidences a good faith effort at forecasting’ the pro

ject’s impacts, consistent with the goals of CEQA.” We agree with the trial court that crucial information has been omitted from the
FEIR. P roject neighbor s reading the FEIR would learn that for benchmark years, peak and average daily emissions of PM 10 w ill be lower under the project than under the no project alternative . The composite analysis shows , however, that the concentration of
PM 10 in the area immediately surrounding the project will in the worst case be three times greater under the project than under the no project alternative. Moreover, from what can be gleaned from data spread throughout the FEIR but never explicitly analyzed or
discussed
, the concentration of PM 10 that currently exists over the lengthy stretch of highway over a mile away from the project site will , under the project, be concentrated in the area immediately surrounding the project, which includes both homes and schools. 19 Thus, it is particularly important to understand, and the FEIR does not disclose or
estimate
, how freque ntly and for what length of time the level of particulate air pollution in the area surrounding the proposed rail yard will exceed the standard of significance

. The composite analysis does not disclose the frequency of occasions or the estimated length of time during which ambient pollutants will remain at heightened levels

—

19 The City of Los Angeles states in its brief that “Except for 1

- hour N O 2 , the p roject ’ s significant concentration impacts would be confined to uninhabited or industrial areas close to the p roject site.” Figures 3

- 2.7 and 3

- 2.8 ( a nnual and 24

- hour PM 10 ground

- level concentration for mitigated project)
, f igure 1

- 1 (proposed project site location) and f igure 3.2

- 1 (locations of sensitive receptors in the vicinity of the proposed project site) appear to indicate the contrary

.26

whether the worst case will be the situation for only a day or for as long as the railyard is in operation. Will air quality improve over time or remain fairly constant? 20 Without such

an understanding, the public and decision

- makers cannot fairly consider alternatives or mitigation measures or intelligently balance competing considerations before adopting a statement of overriding considerations. (See CEQA Guidelines
, § 15093.) Appellant s’ r eliance on cases approving “worst

- case scenario” analyses in CEQA

cases is misplaced. For example, in Sierra Club v. Tahoe Reg ional Planning Agency (E.D.Cal. 2013) 916 F.Supp. 2d 1098, 1147, the EIR examined “the noise impacts of the project’ s construction activity based on the ‘ worst

- case scenario ’ in which the three loudest pieces of equipment would be operating at the same time. ” The court concluded that the analysis was sufficient because the analysis was “ thorough and carefully
detail [ed] the level of noise that will result from the project ” at “ all times of day

. ” ( Id . at
p p. 1148

- 1149.) While a project neighbor in that case could predict what noise levels
would be at any given time of day under the worst case scenario, the same cannot be said for a project neighbor in the present case. In this case, a neighbor will have no idea how bad air quality will be
, if the railyard is constructed, at any point or for how long in the
future. Finally, appellants cite no evidence to support their con tention that the inclusion of
additional information regarding air pollutant concentrations would be impractical. Citing the protocol quoted above, they argue, “ were CEQA to require an EIR to analyze every potential impact for every year of a project’s lif espan, or even for a series of benchmark years, agencies would be required to run thousands of complex dispersion models

– effectively grinding the CEQA process to a halt. ” The protocol, however, does not excuse CEQA compliance. It provides general guideli nes and requires the air quality analyst to determine whether it is appropriate to “limit the number of modeling runs” and to select the “appropriate range of analysis years.” A reasonable selection of benchmark years, as

20 While the comparison of con centrations of NO 2 is perhaps more meaningful because both emissions and concentrations are worse under the no project alternative, the analysis is still inadequate to the extent impacts are identified generally without reference to time.27

in other analyses, may be acceptab le. In this instance, the decision to perform only a single modeling run with a 50

- year analysis range does not comply with CEQA. Accordingly, we agree with the trial court that with respect to impact AQ

- 4, the harbor department “failed to proceed in the manner required by CEQA, and the [FEIR] fails to set forth sufficient information to foster informed public participation and reasoned decision making.”
8. Mitigation Measure AQ

- 9 : Periodic Review of New Technology and Regulations *
The EIR’s ninth mitigation measure for air quality impacts (MM AQ

- 9) provides in relevant part as follows: “ The Port shall require BNSF to review, in terms of feasibility, any Port

- identified or other new emissions

- reduction technology, and report to
the Port. Such techno logy feasibility reviews shall take place at the time of the Port’s consideration of any lease amendment or facility modification for the Project site. If the technology is determined by the Port to be feasible in terms of cost, technical and operational f

easibility, BNSF shall work with the Port to implement such technology.” The mitigation measure continues, “ As partial consideration for the Port agreement to issue the permit to BNSF, BNSF shall implement not less frequently than once every five (5) years following the effective date of the permit, new air quality technological advancements, subject to mutual agreement on operational feasibility and cost sharing, which shall not be unreasonably withheld. The effectiveness of this measure depends on
the adv ancement of new technologies and the outcome of future feasibility or pilot
studies. ” MM AQ

- 9 was identified in the FEIR as a mitigation measure designed to reduce the impacts of exposure to significant levels of toxic air contaminants (TACs )

. 21
The FEIR st ates that construction mitigation measures “ would reduce the impacts from the proposed Project by reducing emissions from construction equipment operating at the Port pursuant to LAHD Construction Guidelines. In addition to the construction

* Part 8 is not c ertified for publication. (See fn., ante , p. 1.)

21 TACs are “c ompounds that are known or suspected to cause short

- term (acute) and/or long

- term (chronic non

- carcinogenic or carcinogenic) adverse health effects. ”28

mitigation meas ures, other mitigation measures to reduce Project health risk impacts
include the use of low

- emission drayage trucks and periodic review of new technologies .” The harbor department’s findings of fact clarifies that the construction mitigation measures and use of low

- emission drayage trucks were “quantified and included in the mitigated construction emissions” and as a result, the risks of exposure to TACs are “below the significance threshold for all categories of receptors.” Mitigation measure AQ

- 9 was not quantified but was expected to “contribute to the advancement of [the harbor department’s] environmental goals and objectives.” The trial court found MM AQ

- 9 was not “ fully enforceable” as a mitigation

measure because it did not seem likely to “actually result” in the implementation of such future feasible technologies at the project site. Appellants dispute the finding that the measure is not enforceable and argue further that “ any perceived defect in enforceability was not prejudicial ” because the FEIR does not rely on the measure to reduce the impact to a less than significant level. “When a project will result in an adverse change to the physical environment, CEQA instructs that ‘the agency “shall provide that measures to mitigate or avoid significan t effects on the environment are fully enforceable through permit conditions, agreements, or other measures” [citation] and must adopt a monitoring program to ensure that the mitigation measures are implemented [citation] . The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. ’ ” ( California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 189.) The mitigation measure in dispute anticipates future improvements in technology that are not presently available and perhaps not even contemplated. I n light of what is unknown, a more specific measure may be an impossibi lity. MM A

- Q 9 imposes the requirement that BNSF not unreasonably withhold its agreement to the adoption of new technology . While disagreements in the application of this st a ndard are possible, the
standard is nonetheless objective and can be enforce d

. ( Pe ak

- Las Positas Partners v.29

Bollag (2009) 172 Cal.App.4th 101, 104 , 106 [Under contract requiring “mutual consent” which “shall not be unreasonably withheld,” reasonableness in withholding consent is determined under an objective rather than subjective stan dard.]; County of Amador v. City of Plymouth (2007) 149 Cal.App.4th 1089, 1111 [ Provision in a municipal services agreement, which is subject to CEQA requirements, that the c ity “ will not unreasonably withhold any approvals required to implement the water and sewer provisions ” represents a commitment by the c ity to a definite course of action .].) Under the circumstances we agree with appellants that the measure is reasonable.
9. Cumulative impacts on Air Quality CEQA requires that an EIR discuss the significant cumulative impacts to which a proposed project would contribute, taking into account past, present, and probable future projects causing similar impacts. ( CEQA Guidelines, § 15130.) “Cumulative impacts” are
defined as “two or more individual ef fects which, when considered together, are considerable or which compound or increase other environmental impacts.” ( CEQA
Guidelines , § 15355.) Such impacts are “significant” when a project’s incremental effect on other projects’ effects is “cumulatively c onsiderable.” ( CEQA Guidelines, § 15130,
subd. (a).)
The F EI R identifie s Union Pacific’s proposal to modernize and expand its existing Intermodal Container Transfer Facility (ICTF)
, located adjacent to SCIG’s northern boundary
, as one of 170 present or re asonably foreseeable future projects that could
contribute to cumulative environmental impacts. 22 The FEIR concludes, under

22 The DEIR included additional information about the proposed expansion of the ICTF that was, as discussed below, omitted from the RDEIR and the FEIR. According to the DEIR, the proposed expansion project would increase capacity to handle containers at the ICTF from the current annual average of 725,000 containers to an estimated 1.5 million containers and would increase truck traffic from 1.1 million one

- way trips a year to 2.268 million trips per year. Section 4.3 of the DEIR contains a combined analysis o f the impacts from the SCIG and ICTF facilities. The DEIR states, “T his section provides an analysis of the combined effects of the proposed SCIG Project and the proposed ICTF Modernization and Expansion Project for air quality (emissions, health risk), no ise, and traffic. This analysis is not required under CEQA and is provided as additional30

c umulative i mpact AQ

- 4, that operation of “ past, present, and reasonably foreseeable future projects, ” including the proposed project and the proposed expansion of ICTF, would result in a significant cumulative air quality impact related to exceedances of the significance thresholds for NO X , PM 10 , and PM 2.5 . The FEIR explains that “ Although there is no way to be certain if a cumulative exceedance of the thresholds would happen for any pollutant without performing dispersion modeling of the other projects, previous experience indicates that cumulative air quality impacts would be likely to exceed the
thresholds for NO X , could exceed the t hresholds for PM 10 and PM 2.5 , and would be unlikely to exceed the thresholds for CO. ” The FEIR adds that because “ operation of the proposed p roject would cause exceedances of the SCAQMD thresholds for 1

- hour and
annual NO 2 , 24

- hour and annual PM 10 , and 24

- hour PM 2.5 . . . , the p roject would result in a cumulatively considerable contribution to a significant cumulative impact. ” The FEIR also concludes, under c umulative i mpact AQ

- 7, that the “ past, present, and reasonably foreseeable future projects ” and the proposed p roject do not have a significant cumulative impact on non

- cancer risk

. The trial court acknowledged that t he “ICTF facility and the ICTF e xpansion Project are mentioned throughout ” the cumulative impacts chapter and that “[i]n many

resp ects, these mentions are brief but sufficient.” The court found, however, that the analyses under cumulative impact AQ

- 4 ( ambient air pollutant concentrations ) and cumulative impact AQ

- 7 ( non cancer health risks ) were inadequate.

information only because of the close proximity of the two proposed projects. ” The combined analysis included data supporting the conclusion that there would be no sig nificant cumulative impact from operational emissions of past, present and reasonab ly foreseeable future projects. The combined analysis was omitted from the RDEIR and FEIR because the anticipated publication date for the draft EIR for the ICTF project was delayed significantly. As appellants explained in the trial court, “the SCIG project and the ICTF [expansion] project were running essentially neck and neck in their progress for approval” when the draft EIR was prepared but “by the time the RDEIR was pre pared, the ICTF had fallen far behind” so the analysts concluded that “the information concerning the [ICTF expansion] project was simply not concrete enough” to merit continued inclusion.31

With respect to the cumul ative impacts analysis under AQ

- 4, the court explained that the analysis “disclaims an ability to know ‘if cumulative exceedances of thresholds would happen for any pollutant without performing dispersion modeling of the other projects’ ” but concludes tha t “operations of the past, present and reasonably foreseeable future projects, including the proposed project, would result in a significant cumulative air quality impact.” The court observed that the analysis relies on the “seriously deficient” screening methodology discussed above without any discussion of how the expansion at ICTF will affect pollutant concentrations. “This is important, since an increase in air pollution from the ICTF will be emitted ‘next

- door’ to SCIG, and presumably have a significan t impact o n those living in the vicinity of both facilities.” Appellants contend that CEQA does not require quantification of any air quality impacts of the ICTF because quantification in this instance is impractical and unreasonable. Appellants are likel y correct that conducting dispersion modeling for the ICTF expansion project would be unreasonably time consuming and impractical , if not already completed for the applicable project EIR, and that it is within the harbor department’s discretion to evaluate whether the original emissions data has become unreliable with the pass age o f time. Nonetheless, as the trial court observed, the fact that “CEQA does not require quantified analyses[] does not mean that all meaningful information on a subject can be omit ted from an EIR’s cumulative impacts analysis.” We agree with the trial court that the analysis identifies the potential cumulative impacts of the ICTF expansion project “in such general terms that the ‘big picture’

— two large railyard expansions located ne xt to one [another]

— is missing from the analysis” and that “when the combined analysis was removed from the DEIR, so too was the acknowledgment that the ICTF expansion project was not just another land use project in
the area.” According ly , t he harbor depa rtment must make a “good faith and reasonable disclosure” of the cumulative impacts before the FEIR may be approved. With respect to cumulative impact AQ

- 7, the court found that there was no substantial evidence to support the conclu sion that “ the past, present, and reasonably32

foreseeable fu ture projects and the proposed p roject do not have a significant cumulative impact on non

- cancer risk. ” We disagree. Under cumulative impact AQ

- 7, t he FEIR explains, “ Emissions of TACs would increase chronic and acute noncancer effects compared to baseline levels

. . . , but the increases would all be well below the 1.0 hazard index significance crite rion at all receptors near the p roject site. ” Appellants elaborate furt her : “ Table 3.2

- 35 of the EIR
shows various hazard indices for non

- cancer health risks, breaking out the portion attributable to baseline conditions ( ‘ CEQA 2010 Baseline ’ ) and the portion attributable to SCIG ( ‘ CEQA 2010 Increment ’ ) to reach a total hazard index under the p roject scenario.
The EIR forecasts that maximum non

- cancer risks will occur at occupational and recreational receptors, where acute hazard indices under the p roject scenario measure 0.5 (comprised of a 0.3 baseline and a 0.2 increase attr ibutable to SCIG).

. . . [¶] Even assuming the ICTF expansion p roject were next door to SCIG and had the same incremental impact on non

- cancer hazard indices as SCIG (0.2), the maximum hazard index would still be only 0.7

— that is, a 0.3 baseline, a 0.2 inc rease attributable to SCIG,
and another 0.2 increase attributable to ICTF e xpansion. This would still be well below the 1.0 significance threshold.” The data in t able 3.2

- 35 amply supports the conclusion reached under cumulative impact AQ

- 7. 23
10. Traffic *

Ac cording to the FEIR, all trucks traveling from the port to SCIG w ill be required

to take Highway 103 northbound before heading westbound on Highway 1. San Gabriel

23 The trial court’s contrary finding appears to have been based on a double counting of the baseline

. The court explained only that if the acute hazard index for occupational and recreational receptors is 0.5 and “if ICTF has emissions equal to SCIG, it is not unlikely that the hazard index could rise to a level of signif icance.” Moreover, c ontrary to the trial court, we do not assume that the ICTF was not considered in reaching the conclusion that “past, present and reasonably foreseeable future projects and the proposed p roject do not have a significant cumulative impact on non

- cancer risk. ” Although not expressly referenced by name, the ICTF is clearly identified as a reasonably foreseeable future project for purposes of evaluating cumulative impacts.

* Part 10 is not certified for publication. (See fn., ante , p. 1.)33

Avenue is a short road with one lane in each direction that runs parallel to Highway 103
for about half a mile. The exchange between Highway 103 and Highway 1 requires trucks exiting Highway 103 to merge onto southbound San Gabriel Avenue for a short
distance (less than a block) before entering the on

- ramp to Highway 1. By 2035,

a pproximately 2,771 trucks a day would follow this route. The trial court faulted the FEIR for failing to analyze traffic on San Gabriel Avenue, particularly with respect to impacts on residents at the Century Villages at Cabrillo (Villages), a 27

- acre supportive housi ng community located on San Gabriel
Avenue just north of the off

- ramp from highway 103 and the entrance to Highway 1

. Appellants dispute this finding. They argue that although the FIER does not expressly reference San Gabriel Avenue, impacts to the affecte d segment of San Gabriel Avenue

were subsumed within the analysis of the freeway exchange between northbound Highway 103 and westbound Highway 1

. Specifically, t able 3.10

- 9 show s the baseline conditions for the “ weaving section ”
at the junction of northbo und Highway 103 and westbound Highway 1. The table
indicates the level of service for this section at peak a.m. hours and at peak p.m. hours

. Table 3.10

- 30 show s the “ baseline plus proposed project conditions ” for the same segment . The level of service rem ains the same

. Appellant s explained that the FEIR uses

a “weaving” analysis to evaluate th is connection because it is a “free

- flow (no impediment such as stop sign or yield sig n ) movement with a merge.” As noted by the trial court, the h ighway c apacity m odel cited by appellants provides substantial evidence for the selection of this methodology in these circumstances

. Initially, respondents contend that there is no substantial evidence in the record to support the density numbers contained in table 3.10

- 30 that were used to calculate the
level of service

. Table 3 .10

- 9 shows that the density 24 for the a.m. peak hours is now 9.3

24 The SCIG Transportation Appendix (Appendix G) indicates that density is measured in passenger cars per mile per lane (pc/mi/ln). These tables indicate , however, that density is measured in passenger cars per hour per lane (pc/hr/ln). Appellants suggest th e label used in the table s is a harmless typographical error that could easily have been fixed if raised34

cars per mile per lane (pc/mi/ln) and the density for p.m. peak hours is 15.7 pc/mi/ln

. Table 3.10

- 30 shows that under the project the density for the a.m. peak hours would drop to 9.2 and the density for p.m. peak hours would rise to 16.8. In the trial court, appellants cited the “ weave analysis sheets ” in Appendix G and explained that the harbor department’s “traffic experts found th at the volume added due to the p roject is 200 [passenger car equivalents or pce] in the p.m. peak hour at that location, which was added to the 175 pc e of non

- project trips, for a total of 375 p c e trips weaving into Pacific Coast Highway [Highway 1] from the northbound Te rm inal Island Freew ay [Highway 103] off ramp. This 375 pce trips with other analysis factors translates into 16.8 density value
under a detailed calculation shown in th e Highway Capacity Manual 2000.” The trial

court acknowledged that “th ere may well be an explanation [for the density numbers] of the sort offered in respondents’ brief” but based on its review of Appendix G , the court

was unable to “discern any evidence to support” the density numbers fo und in t able
3.10.30. In their reply brief on appeal , appellants concede that the “ data, which had been
collected and us ed to calculate the numbers in t able 3.10.30, .

. . was inadvertently omitted from the EIR’s appendices.” As noted above with respect to the exhaustion issue , appellants a rgue that the omission could have been corrected had a timely objection been made during the administrative proceedings

. Assuming appellants are correct that the data exists and supports the numbers reflected in the table, the omission can easily be correc ted in the continued administrative proceedings that will otherwise be required

. More fundamentally, respondents contend the FEIR fails to consider how the influx of trucks will impact residents at the Villages. In its comment to the RDEIR, Villages expr essed concern that the mixing of heavy truck traffic from the project with traffic to and from the Villages “will cause confusion and dangerous conditions” and will cause “traffic to slow significantly.” T he city ’s response states correctly , “While the

during the administrative process. We agree and as sume that the correction will be made during the continued administrative proceedings.35

com ment suggests that the proposed project would cause ‘ confusion and dangerous
conditions

. . . [and]

. . . the mixing of traffic will also cause the truck traffic to slow significantly

. . . , ’ the comment provides no evidence to support this conclusion.”
C ontrary to the Village s’ comment , t he traffic modeling reflected in table 3.10

- 30 suggests that there will be little traffic congestion on San Gabriel Avenue as a result of the project. Moreover, because the project requires trucks to follow the specific r oute to SCIG from the port, it is possible for residents of the Villages to avoid project trucks entirely . The only time trucks and residents must share the road is when they are both entering the on

- ramp to westbound H ighway 1. T he FEIR reasonably conclud es that

“ there are not many trips anticipated to be on San Gabriel Avenue south that would merge with the SR

- 103 off

- ramp traffic ” because San Gabriel Avenue serves only “ a small residential area to the north. ” Although respondents challenge the characterization of the Villages as a “small” residential community, the description is supported by the
record. In November 2012, there were 1,830 residents at the Villages, 30 percent of whom were children. Presumably n ot all of them will be heading onto westbound Highway 1 at the same time. Accordingly, contrary to the trial court’s finding, the FEIR sufficiently analyz es traffic on San Gabriel Avenue.
11. Noise Impacts on the City of Long Beach *
The F EIR analyzed noise i mpacts from project construction and operation noise

on s ensitive rece ptor s in the City of Long Beach includ ing single

- family residences, educational and religious establishments, industrial properties with potential residential

uses , parks and open space and three fire stations

. Impact NOI

- 6 evaluated impacts from construction and operational noise on “ noise levels. ” Under the standard of significance adopted in the FEIR, a n impact would be significant “ if ambient noise levels would be increased by three dBA [A

- weighted decibels ] or more; or maximum noise levels allowed

* Part 11 is not certified for publication. (See fn., ante , p. 1.)36

by the Long Beach Municipal Code would be exceeded. ” 25 Impact NOI

- 8 analyzed impacts from construction and operation al noise on sleep dist urbance. Under the standard selected in the FEIR, “ A significant impact for sleep disturbance would occur when
residences within t he immediate vicinity of the Project Site and Project Site components within the City of Long Beach are exposed, at an average frequency of once in 10 days, to interior nighttime SEL [sound exposure level] sufficient to awaken at least 10 percent of their residents assuming windows remain open. The threshold of significance for interior nighttime noise is 80 dBA SEL. ” Impact NOI

- 9 analyzed impacts from construction and operation al noise on classroom speech interference. Under the standard of significance adopted in the FEIR, “ A significant impact for classroom speech
interference would occur when schools within the immediate vicin ity of the Project Site and Project Site components within the City of Long Beach are exposed to exterior noise levels during school hours sufficient to result in interior noise level of 52 dBA, sufficient for momentary disruption of speech intelligibility in classroom teaching situations (assumed to be at 20 feet). ”
The FEIR concludes that “[p] redicted daytime operational noise levels from the proposed Project site would exceed existing measured ambient noise levels by 3 dBA or greater at the residence at 2789 Webster (R1) and at Cabrillo High School (R5). Predicted

25 According to the FEIR, “ Chapter 8.80 of the Long Beach Municipal Code controls unnecessary and excessive noise and vibration in the City of Long Beach. Section 8.80.150 of the Long Beach Municipa l Code outlines acceptable exterior noise levels by land use that apply to operations noise. As listed in t able 3.9

- 11, daytime noise levels at residential areas are not to exceed 50 dBA. In addition, it is unlawful for any person to create any noise which causes the noise level when measured on residential property to exceed: [¶] [1.] The noise standard for th at land use district as shown in Table 3.9

- 11 for a cumulative period of more than thirty minutes in any hour; [¶] [2.] The noise standard plus five dBA for more than 15 minutes in any hour; [¶] [3.] The noise standard plus ten dBA for a cumulative period of more than fiv e minutes in any hour; [¶] [4.] The noise standard plus 15 dBA for a cumulative period of more than one minute in any hour; or [¶] [5.] The noise standard plus 20 dBA or the maximum measured ambient, for any period of time. [¶] If the measu red ambient level exceeds that permissible, the allowable noise exposure standard shall be increased in 5 dBA increments in each category as appropriate to encompass or reflect the ambient noise level

. ”37

nighttime operational noise levels would exceed existing ambient noise levels by greater than 3 dB at the residence at 2789 Webster (R1), at the Buddhist Temple (R2), and at the Century Village s at Cabrillo (R7A). These increases represent a significant impact. [¶] Interior noise levels from Project operations would not be expected to exceed municipal code standards for classroom interior spaces. Further, interior operational noise
levels would not be expected to approach or exceed existing ambient interior noise levels
within active classrooms. Interior construction noise levels would exceed [Long Beach Municipal Code] standards at the Cabrillo Child Development Center (R6) and future
noise leve ls would exceed existing ambient noise levels by greater than 3 dB at the Bethune School (R7); therefore, classroom noise impacts would be significant.” With proposed mitigation most of the impacts would be reduced to less than significant but nighttime op erational noise levels would remain significant and unavoidable. The FEIR
also conclude s that the impact o f the predicted SCIG train horns on sleep at nearby
residences and the impact of on

- site and rail corridor operational noise on speech intelligibility in classrooms would both be less than significant. The trial court concluded that the FEIR is inadequate because it fails to analyze
under impact NOI

- 6 whether “ single

- event noise ” would exceed “maximum noise levels” allowed under the City of Long Beach noise ordinance. T he court found no inadequacy in the FEIR’s discussion of single

- event noise impacts on sleep or speech intelligibility
under impacts NOI

- 8 or NOI

- 9 . Nor did the cou rt find inadequate the analysis of project construction and operations on ambient noise levels under impact NOI

- 6 . Rather , the court concluded that because the Long Beach noise ordinance sets maximum noise levels for both ambient and single

- event noise and the FEIR expressly adopted the “ maximum noise levels allowed by the Long Beach Municipal Code ” as a standard of significance for impact NOI

- 6, the FEIR was required to analyze single

- event noise as well as ambient noise under impact NOI

- 6

. Appellants co ntend that NOI

- 6 was intended to analyze increases in ambient noise
levels only
, not single

- event noise

. According to appellants, the harbor department
selected different standards of significance
, based on SEL levels and maximum noise38

levels
, to evaluat e single event noise impacts o n sleep (NOI

- 8) and speech intelligibility (NOI

- 9)

. They argue that the trial court disregarded the harbor department’s “discretion to select, develop, interpret, and apply its own thresholds of significance based on
substantial evidence.” Although the language used in the FEIR is perhaps imprecise, a fair reading supports appellant s ’ argument that impact NOI

- 6 was intended to evaluate only increases
in ambient noise levels. 26 Because the trial court’s conclusion was based solely on the premise that NOI

- 6 was intended to, but did not, analyze single

- event noise, we cannot accept its conclusion

. Respondents assert no other deficiency in the analysis of noise impacts, so that we conclude this portion of the FEIR complies with CEQA.
12. Greenhouse Gas Emissions Chapter 3.6 contains the FEIR’s discussion of greenhouse gas (GHG) emissions. The chapter analyzes two potential impacts. First, under impact GHG

- 1, the FEIR considers whether the pro ject “would result in an increase in construction

- related and operation

- related GHG emissions.” The FEIR quantifies GHG emissions and concludes
that significant impacts would occur under the proposed p roject because the new railyard

“ would produce GHG oper ational emissions that would exceed the CEQA baseline levels when the project reaches its full capacity in 2035 and beyond. ”
Under impact GHG

- 2, the FEIR considers whether t he proposed p roject would

“ conflict with s tate and local plans and policies adopt ed for the purpose of reducing GHG
emissions. ” The FEIR concludes that the proposed p roject “ is consistent with s tate and local policies and plans for GHG emissions and climate change. Accordingly, there are no significant impacts resulting from inconsiste ncies with existing plans and policies. ” The FEIR explains, “The proposed project would result in more efficient use of fossil fuels to move goods as a result of increased use of rail versus trucking between the Ports and the SCIG facility. The project is consistent with key legislation, regulations, plans

26 Appellants may well be correct that this ambiguity could have been resolved had a proper objection be en raised in the course of the administrative proceedings.39

and policies describe d in section 3.6.3, applicable r egulations. [¶] The ratio of locomotive fuel efficiency to truck fuel efficiency on a per

- ton

- mile basis ranges from 1.9 to 5.5 (Federal Railroad Admin istration, 2009). Increased fuel efficiency reduces GHG emissions on a pe r

- ton

- mile basis. The p roject, by shifting the d rayage truck trips from Hobart y ard to the SCIG facility, would increase the fuel efficiency of regional cargo
movement and decrease GH G emissions. This fundamental feature of the Project is consistent with the California Air Resources Board’s [CARB] scoping p lan [ 27 ] for reducing GHG emissions from the Goods Movement sector which calls for efficiency

based GHG re ductions in activities such as p ort

- related trucks, cargo handling equipment, and freight transport.” In contrast, the FEIR concludes that the no project alternative would conflict with state and local plans and policies adopted for the purpose of reducing the emissions of
GHGs. Th e FEIR explains, “ The no project a lternative would not increase use of more efficient modes of goods movement by continuing to move c argo by truck to the Hobart yard. Therefore no additional efficiency in car go movement is realized in the n o project

a ltern ative, which is inconsistent with the goals of the AB32 scoping plan, the Western

27 In 2006 , the Legislature enacted Assembly Bill No. 32 (2005

- 2006 Reg. Sess.) which directed “ CARB to ‘ determine what the statewide greenhouse gas emissions level was in 1990, and approve in a public hearing, a statewide greenhouse gas emissions limit that is equivalent to that level, to be achieved by 2020.’ [Citation.] The Legislature a lso directed CARB to prepare a ‘scoping plan’ to identify how to achieve the “maximum technologically feasible and cost

- effective reductions in gree nhouse gas emissions .

. . by 2020.’ [Citation.] The scoping plan prepared by CARB explained that ‘ “ [r]educing greenhouse gas emissions to 1990 levels means cu tting appr oximately 30 percent from business

- as

- usual emission levels projected for 2020, or about 15 percent from today’ s level s.” [Citation.] T he scoping p lan then set out a “ comprehensive array of emissions reduction approaches and tools” to meet the goal, includ ing expanding energy efficiency programs, achieving a statewide renewable energy mix of 33 percent, developing with our regional partners a cap

- and

- trade program for greenhouse gases, establishing targets and policies for emissions in transportation and im plementing existing clean transportation programs, and creating targeted fees on certain activities affecting emissions. ’ ” ( Cleveland Nat l . Forest Foundation v. San Diego Ass n

. of Governments (2017) 3 Cal.5th 497, 505.)40

Regional Climate Action Initiative, the Mayor of Los Angeles’ Executive Directive
No. 10, and the Port of Los Angeles Climate A ction Plan

. ”
The trial court found that the di scussion of impacts under GHG

- 2 i s inadequate
because it “does not inform the public or decision make r s of the reasons it believes the project is consistent with .

. . ‘key legislation, regulations, plans and policies.’ ” 28 T he

court also observed that the analysis i s “ misleading ” because “[a] project that will increase GHG emissions cannot be in harmony with state and local plans and policies that require a decrease in GHG emissions.” We disagree.
I n C en t er for Biologi cal Diversity v. Department of Fish and Wildlife (2015 ) 62
Cal. 4th 204, the court acknowledged that a comparison of the project’ s expected emissions to a hypothetical business

- as

- usual scenario is an appropriate “ tool for evaluating efficiency and conservation efforts ” and may be used “ to sh ow the project incorporates efficiency and conservation measures sufficient to make it consist ent with achievement of A.B. 32’ s reduction goal, not to show the project will not increase greenhouse gas emissions over those in the existing environment.” ( Id

. at p. 225.) GHG

- 2 properly uses such a comparative tool to show that shifting the d rayage truck trips from
the Hobart y ard to the SCIG facility w ill increase the fuel efficiency of regional cargo movement and decrease GHG emissions, consistent with the go als of the s coping p lan.
In Center for Biologi cal Diversity v. California Dep artment of Fish and Wildlife
, supra , 62 Cal.4th at page 225 the court ultimately concluded that there was no substantial
evidence for the finding that the project ’ s emissions would not conflict with statewide emission reduction goals

. Unlike in the present case, the lead agency in that case attempted to establish “consistency ” with state plans and policies by showing that the

“ project

- level reduction of 31 percent i n comparison to business as usual is co nsistent

28 The trial court also concluded th at the analysis of GHG emissions under GHG

- 1 i s deficient because it fail s to consider the impacts of continued operations at the Hobart yard . As discussed above, we have rejected the argument that the effects of continued operations at Hobart ar e an indirect impact of the project that require analysis in the FEIR. For the same reason, we disagree that emissions at Hobart are required to be included in the analysis of the project’s GHG emissions.41

with achieving Assembly Bill 32’ s statewide goal of a 29 percent reduction from business
as usual .” ( I

bi d .) The court explained why this was inadequate as follows : “ At bottom,
the EIR’ s deficiency stems from taking a quantitative comparison method developed by the Scoping Plan as a measure of the greenhouse gas emissions reduction effort required by the state as a whole, and attempting to use that method, without consideration of any changes or adjustments, fo r a purpose very different from its original design: to measure the efficiency and conservation measures incorporated in a specific land use development proposed for a specific location. The EIR simply assumes that the level of effort required
in one conte xt, a 29 percent reduction from business as usual statewide, will suffice in the other, a specific land use development. From the information in the administrative record, we cannot say that conclusion is wrong, but neither can we discern the contours of a logical argument that it is right. The analytical gap left by the EIR’ s failure to establish, through substantial evidence and reasoned explanation, a quantitative equivalence between the Scoping Plan's statewide comparison and the EIR’ s own project

- level comparison deprived the EIR of its ‘ “ sufficien cy as an informative document. ” ’ ” ( Id

. at p. 227.) In the present case, the harbor department did not purport to measure “consistency” with a specific quantitative reduction goal. The harbor department

sepa rated its quantitative analysis (GHG

- 1) from its qualitative analysis (GHG

- 2) , informing the reader that emissions will exceed baseline levels, resulting in a significant impact, but that the project is consistent with state and local plans and policies that encourage adoption of more efficient use of fossil fuels to move goods

. T hi s analysis is particularly apt in this instance where the no project alternative also results in significant impacts and is not consistent with conservation goals. Accordingly, there is no inadequacy in the FEIR’s analysis of GHG emissions. Disposition
T he judgment granting respondents’ petition for writ of mandate is affirmed in part and reversed in part. The judgment is affirmed insofar as it grants the consolidated petitions for a peremptory writ of mandate directing respondents to set aside certificat ion of the FEIR and specified actions and approvals predicated on the certification, and to42

suspend project activities until respondents have taken the necessary actions to comply with CEQA. Insofar as the judgment implies that compliance with CEQA requir e s correction of inadequacies in the FEIR’s analysis of air quality impacts, particularly impacts to ambient air pollutant concentrations and cumulative impacts of such pollutant concentrations, the judgment is affirmed. Insofar as the judgment implies that compliance with CEQA requires correction of deficiencies in the FEIR’s analysis of impacts related

to the Hobart rail y ard, GHG emissions, noise, transportation and the cumulative impact
of ICTF on non cancer health risks , and specification of mitigation me asures AQ

- 9, NOI

1 and NOI

- 3 , the judgment is reversed. On remand, the trial court may reconsider its
award of costs. The parties shall bear their respective costs on appeal.

Pollak, Acting P.J.

We concur:
Siggins, J. Jenkins, J.43

Counsel for defendants and appellants: Office of the City Attorney of Los Angeles Michael N. Feuer
, Janna B. Sidley
, Joy M. Crose
The Sohagi Law Group
, Margaret M. Sohagi
Counsel for real party in interest and appellant: Gibson, Dunn & Crutcher Theodore J. Boutrous, Jr. , Kahn A. Scolnick , and Daniel M. Kolkey
Munger, Tolles & Olson Benjamin J. Horwich and Usha C. Vance
Meyers, Nave, Riback, Silver & Wilson Amrit S. Kulkarni
, Julia L. Bond , and Peter S. Hayes

Counsel for amicus curiae on behalf of appellants: Klapach & Klapach and Joseph S. Klapach for The Los Angeles Coalition for the Economy & Jobs

Reed Smith LLP Dennis Peter Maio for Regents of the University of California
Pillsbury Winthrop Shaw Pittman Mark E. Elliott and Kevin M. Fong for Association of American Railroads

UCLA School of Law Sean B. Hecht and Julia Forgie for Califo rnia Communities Against Toxics; California Safe Schools; Communities for a Better Environment; Del Amo Action Committee; and Mothers of East Los Angeles; NAACP Wilmington

- San Pedro

Counsel for plaintiffs and respondents : Shute, Mihaly & Weinber Rachel B. Hooper
, Winter King , and Susannah T. French

Daniel P. Selmi

Charles Parkin , City Attorney and Michael J. Mais
, Assistant City Attorney for City of Long Beach44 Kurt R. Wiese, General Counsel
, Barbara Baird, Chief Deputy Counsel
, Veera Tyagi, Principal Deputy District Counsel
, and Mary J. Reichert, Senior Deputy District Counsel for South Coast Air Quality Management District

David R. Pettit
, Melissa Lin Perrella
, Morgan Wyenn , and Ramya Sivasubramanian for East Yard Communities for Environmental Justice; Coalition for Clean Air; Century Villages at Cabrillo; and Natural Resources Defense Council, Inc.
Johnson, Smith & Foy Abigail A. Smith and Kimberly A. Foy for Coalition for a Safe Environment; Apostolic Faith Center; and Community Dreams; California Kids IAQ

Chatten

- Brown & Carstens Douglas P. Carstens and Michelle Black for Long Beach Unified School District
Peterson Law Group John S. Peterson and Stacy W. Thomsen for Fast Lane Transportation, Inc.; California Cartage Company, Inc.; Three Rivers Trucking, Inc.; and San Pedro Forklift, Inc.
Counsel for intervener and respondent: Xavier Becerra, Attorney General, Sally Magnani, Senior A ssistant Attorney General, Sarah E. Morrison, Supervising Deputy Attorney General, Catherine M. Wieman and Brian J. Bilford, Deputy Attorneys General45

A148993