Divided Federal Appeals Court Panel Jettisons Environmental Challenge To Perot/Amazon Distribution Facility

The legal challenge filed by former California Attorney General Xavier Becerra and a bevy of environmental concern advocates to the two-thirds of a million square foot merchandise processing facility at San Bernardino International Airport approved by the Federal Aviation Administration in 2019 met a significant roadblock on November 18.
A 2-to-1 decision by a panel of the 9th U.S. Circuit Court of Appeals denied a consolidated petition for review filed by Becerra, the Sierra Club, Earth Justice and other ecological/environmental advocacy groups that maintained the environmental impact study commissioned by the Federal Aviation Administration for the project was woefully inadequate. The petition sought a ruling by the court that would set aside the operating permit for the Eastgate Air Cargo Facility, which despite the legal challenge, is already up and operating. At that sorting facility, located west of Victoria Avenue and south of Third Street on the far eastern side of San Bernardino, Amazon employees load and unload aircraft and sort packages for delivery.
San Bernardino International Airport, built on the grounds of the former Norton Air Force Base, caters to cargo-carrying aircraft in large measure, and features no commercial passenger flights, though it does have some minor passenger activity involving corporate jets and a few charter flights.
U.S. Circuit Judge Patrick Bumatay joined with U.S. District Judge Eugene Siler, who wrote in his prevailing opinion that the petitioners did not make a convincing showing that the Federal Aviation Administration failed to meet its obligation to give adequate consideration to the environmental impacts of the freight-handling and distribution operation through what was alleged to have been inadequate weighing of the overall and cumulative effect of emissions from vehicles and machinery located near residences, schools and other places where individuals sensitive to that pollution live or frequent.
Ultimately, the operations at the facility will be ongoing on a 24-hour-per-day, seven-days-a-week basis.
According to Siler, the Federal Aviation Administration in examining the facets of the project made an adequate evaluation of air quality impacts on the facility’s environs and mapped out in detail the method by which it carried out the evaluation, and accounted for the amount, degree and physical characteristics of the emissions that would come from the operation and their effect on nearby properties.
Siler said the plaintiffs did not prove that the Federal Aviation Administration had skipped out on its duty as required by the National Environmental Policy Act when it made a finding by means of an environmental impact analysis that the facility would have “no significant impacts.”
Judge Bumatay concurred.
The third member of the panel, U.S. Circuit Judge Johnnie Rawlinson, however, strongly dissented, writing that the Federal Aviation Administration had trod all over the competing interests of impoverished minorities living proximate to the facility who are being put upon to bear the brunt of the health-threatening impacts of the pollution-generating operations at the facility. The Federal Aviation Administration giving short shrift to those living in the shadow of the facility who will be subject to the air pollution generated there “reeks of environmental racism,” Rawlinson stated in her dissent, and she stridently asked, making reference to Jeff Bezos, if the project would have been given approval if it had been “sited anywhere near the wealthy enclave where the multibillionaire owner of Amazon, resides? Certainly not. The same standard should apply to the residents of San Bernardino Valley, who have already borne for many years the heavy cost of pollution resulting in a quantifiable detriment to their health.”
Rawlinson took issue with the stated conclusion in the environmental impact report carried out by the Federal Aviation Administration asserting no damage to the health of nearby residents will result from the project. Rawlinson said the finding that the facility “will have no significant environmental impact on the already overly polluted San Bernardino Valley does not pass muster,” given the standards of the yardstick being applied, that being the National Environmental Policy Act.
Weighing in with his concurrence with Judge Siler’s conclusion, Judge Bumatay said that Judge Rawlinson had read into the situation a “racial animus” that did not exist, as racial or ethnic discrimination was not an element of the challenge to the project.
Judge Bumatay said that Judge Rawlinson’s interjection or imputation of a racist motivation into the Federal Aviation Administration’s approval of the project was “unfair to the employees of the Federal Aviation Administration.” Judge Bumatay said Judge Rawlinson had “accused [Federal Aviation Administration officials] of condoning racist actions without [giving them] a chance to defend themselves.”
Amazon began operation at its regional air hub near San Bernardino International Airport in April.
Becerra spearheaded the legal challenge in early 2020, while he was still California attorney general, prior to his selection to serve as secretary of health and human services in the Joseph Biden Administration earlier this year.
Becerra together with local environmental activists and justice advocates and both California-based and national environmental groups filed the lawsuit in federal court last year, roughly a month after the Federal Aviation Administration signed on to allowing Amazon to have an operating license for the logistics center at the airport. Collectively, the plaintiffs put forth arguments that in considering the project and giving it approval, the Federal Aviation Administration, together with the San Bernardino International Airport Authority and the master developer they were working with, Hillwood Enterprises, ignored or paid insufficient attention to the health risks the movement of massive amounts of cargo into and out of the facility would impose on the San Bernardino community.
According to the consolidated lawsuits, the Federal Aviation Administration should have more thoroughly and comprehensively considered the air quality impacts the facility would generate from constant plane flights and truck trips, which would “add to the burden” of pollutants flowing into nearby neighborhoods in which residents “already breathe some of the most polluted air in the nation.”
The San Bernardino International Airport Authority is a joint powers authority consisting of the County of San Bernardino and the cities of San Bernardino, Highland, Colton and Loma Linda committed to operating San Bernardino International Airport. Hillwood Enterprises is a Texas-based, global real estate development company of which Ross Perot, Jr. is chairman.
The lawsuit sought from the court an injunction against the operation of the facility until such time as a comprehensive environmental review of the project was undertaken, and for the approval of the $200 million project to be set aside, as the vote to approve it involved “an abuse of discretion,” and was “arbitrary and capricious and contrary to law.”
-Mark Gutglueck

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