| October 27, 2003
CONSERVATION AND ENVIRONMENTAL JUSTICE GROUPS WIN LEGAL CHALLENGE
TO MASSIVE KERN COUNTY DIESEL TRUCK AND INDUSTRIAL FACILITY
The development proposal, known as the Tejon Industrial Complex-East, consisted of a sprawling 1,109 acre, 15 million square foot Industrial Complex in Southern Kern County in the Grapevine area. The project would be approximately twice the size of downtown Bakersfield when completely built out.
The environmental groups filed suit last February challenging the Supervisors’ decision to approve the project without adequate environmental analysis and mitigation despite the project’s magnitude, the San Joaquin Valley’s notoriously poor air quality, and the area’s increasingly degraded wildlife habitat and water resources.
The Court determined that the County’s Environmental Impact Report (“EIR”) for the Industrial Complex was flawed in many respects. For one, the County failed to adequately disclose the environmental and public health effects of air pollution in the region and the project’s contribution to the region’s poor air quality. These omissions are particularly significant to Kern County, which is among the most dangerous places to breathe in the United States. In 2002, Kern County was the second most ozone-polluted county in the country (behind only San Bernardino County) and received an F grade in the American Lung Association’s annual State of the Air Report, which is based on how often a County’s air quality crosses into the “unhealthful” categories sets by the U.S. Environmental Protection Agency (“EPA”). Kern County is classified as a “severe non-attainment” area for ozone and particulate matter (or “PM”) under both federal and state air quality standards, and may soon be re-classified to the “extreme non-attainment” federal classification for ozone. PM contributes to the deaths of approximately 1,300 San Joaquin Valley residents each year, and costs the state over 1 billion dollars per year in health care costs and missed work days. The air of the San Joaquin Valley Air Basin also poses a serious threat to the health of its residents from hazardous air pollutants, such as diesel exhaust. For the average adult male, the cancer risk in the Air Basin from diesel exhaust alone is 510 times greater than what the EPA considers an acceptable level. The Industrial Complex would admittedly further degrade the region’s air quality by emitting significant amounts of air pollution, yet the County nonetheless failed to fully analyze the project’s impacts to public health and environmental quality.
“In the face of the grave environmental and human health problems the project will cause in an area already plagued by terrible air quality, the EIR’s cursory treatment of air quality issues was inexcusable,” stated Julie Teel, an attorney with the Center for Biological Diversity representing the environmental groups. “One purpose of an EIR is to provide decision-makers and the public with a balancing mechanism whereby they can weigh the costs and benefits of a project. Because this Report failed to disclose critical information about the project’s air quality and other impacts, it fell far short of fulfilling its intended role,” continued Teel.
The Court also found fault with the County’s failure to analyze the the air emissions generated by the broad array of industrial and manufacturing uses approved for the Industrial Complex. The County declined to speculate about the actual future tenants of the Industrial Complex, but at the same time tried to exempt those future uses from the required environmental review altogether. This is particularly problematic where the long list of uses the EIR approved with no further review included automobile manufacturing, chemical storage, textiles manufacturing, and other uses that generally require a Conditional Use Permit and additional environmental analysis prior to approval. The Court noted that if the County cannot fully analyze the impacts of future uses now (because they are as yet unknown), one option is for the County to do a broader, programmatic EIR followed by more specific, project EIRs. Exempting the future uses from analysis altogether is not an option under CEQA.
The Court determined that the County’s assessment of cumulative air quality impacts also fell short. The cumulative impacts analysis is a critically important part of the CEQA review process because it addresses incremental environmental degradation from the proposed project in combination with other past, present, and reasonably foreseeable projects. The County’s EIR did not adequately disclose and analyze the impacts of other distribution and industrial facilities in the Air Basin.
In addition to striking down the County’s decision on the basis of its inadequate air quality analysis, the Court found that the EIR’s analysis of the project’s impacts to wildlife was deficient because it omitted discussion of two special status species found on the project site, the horned lizard and Swainson’s hawk.
In light of the Court’s decision, the Industrial Complex is on hold until the County can demonstrate that it has upheld its responsibility to protect the environment, public health, and welfare of Kern County.
Mary Ann Lockhart of the Sierra Club expressed that “this
court victory sends yet another message to our elected officials
health and environmental protection is extremely important and must
be given top consideration.”