PASADENA, Calif. (CN) – Environmentalists urged the 9th Circuit to enjoin a $687 million diesel-truck project that links two expressways with Los Angeles and Long Beach ports.
The state route highway 47 expressway project requires California to also replace the Schuyler Heim Bridge in the Port of Los Angeles, which is vulnerable to earthquakes.
California and the federal government contend that the project will improve the flow of traffic to and from the ports, and reduce congestion and emissions on expressways like Interstate 405.
The Natural Resources Defense Council (NRDC) and other groups meanwhile say that the project will put more diesel-particulate matter or soot in the Wilmington and Lincoln Village neighborhoods, increasing the risk of cancer and respiratory illnesses.
Children who go to Wilmington Elementary school would be exposed to double the flow of trucks and diesel emissions, according to the complaint the groups filed in 2009.
“The expressway is proposed to go through a residential area that is already suffering from amongst the highest air-pollution related cancer risk in Los Angeles County,” that lawsuit states.
U.S. District Judge John Kronstadt nevertheless granted the U.S. Department of Transportation, Federal Highway Administration and California Department of Transportation summary judgment in the action two years ago, finding that they complied with the Clean Air Act, the National Environmental Policy Act and the Administrative Procedure Act. Project manager Alameda Corridor Transportation Authority is a real party in interest.
Late Wednesday morning, NRDC attorney Adrian Martinez urged a three-judge panel of the 9th Circuit to reverse. His brief to the court argues that a ruling for California and the U.S. government would condemn Wilmington and Lincoln residents to increased risks of cancer, asthma, bronchitis and cardiovascular disease.
In approving the project, the Federal Highway Administration ignored effects that neighborhoods adjacent to the proposed expressway will face, Martinez asserted.
The highway administration instead based its findings “on a widescale regional analysis of aggregate emissions from all trucks entering and leaving the ports,” his brief states.
That broad analysis exceeds the intent of federal environmental laws, the attorney insisted.
Judge Raymond Fisher weighed the allegedly adverse affect on the neighborhoods against the argument that the expressway would lessen congestion and pollution.
“We have here a project that is ostensibly designed to create a more efficient traffic flow of the big diesel burning trucks,” Fisher said. Should an adverse affect on one neighborhood mean that the “whole project has to be scrapped?” the judge asked.
Martinez countered that the groups seek only an analysis considering the neighborhoods that pollution would most affect.
He added that the expressway would lead to a “dramatic increase” of diesel trucks from 9,000 to 18,000.
Judge Kim Wardlaw whether that increase would occur regardless of the expressway.
The attorney said that the concern is that the project would “funnel” traffic through the Wilmington neighborhood.
Department of Justice attorney David Gunter asked the court to affirm.
Asserting in his opening brief that the “key fact” of the case is that it will “reduce traffic on local streets, reduce overall vehicle emissions, and improve air quality,” the attorney said that, under Environmental Protection Agency regulations, the highway administration was allowed to consider “air quality effects throughout the local area.”
The highway administration was not restricted to assessing the effects of pollution on neighborhoods adjacent to the expressway project, Gunter argued his brief.
EPA “regulations required only a qualitative hotspot analysis of air quality in this case, and allowed that analysis to examine emissions of particulate matter (‘PM’) in the localized area of the expressway project,” the brief states.
Judge Fisher asked Gunter during the hearing if the EPA was in lockstep with the government’s argument.
“I can tell you that the arguments in the brief we filed, the EPA reviewed,” Gunter replied vaguely, while adding that the agency was not “formally involved” in the highway administration’s decision.
Attorney Jocelyn Thompson, arguing for California Department of Transportation, pushed back against the environmental groups’ claim that the expressway will indisputably increase pollution.
“That’s not correct, there is absolutely a dispute about whether pollutants will increase,” Thompson said, noting that increasing the flow of traffic would reduce congestion and emissions.
During his rebuttal, Martinez accused the Gunter of “rewriting” EPA regulations on the fly.
He contended that the EPA had taken a look at the case and concluded that health impacts on “local” neighborhoods should take priority.
The record showed there would be “an increase in traffic along this expressway,” the attorney added.
“If there weren’t, why would they be building it?” Martinez told the panel. “The purpose of this project is to funnel traffic through this area, otherwise there would be no need for this project.”
Judge John Noonan joined the panel via an audio link.
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