Attorney General Bonta Asks Ninth Circuit to Review Ruling in Litigation Challenging San Bernardino Warehouse Project

OAKLAND – California Attorney General Rob Bonta today filed a petition for rehearing en banc before the U.S. Court of Appeals for the Ninth Circuit in its lawsuit challenging the Eastgate Air Cargo facility (Project), a large airport expansion project in San Bernardino, California. The area near the San Bernardino airport is home to low-income communities and communities of color who already suffer disproportionately from air pollution-related illnesses such as asthma and heart diseases. Despite recognizing that the Project will add at least one ton of toxic air pollution per day to the South Coast Air Basin, already the most polluted air basin in the country, and over the objections of the Attorney General and local community, the Federal Aviation Administration approved the Project in late 2019. In today’s petition, Attorney General Bonta urges the Ninth Circuit to reconsider a divided panel decision that allowed the Project to move forward, arguing that the decision conflicts with existing law.

“It doesn’t matter who you are or how much money you have. You can’t cut corners

when the health and well-being of our communities is at stake,” said Attorney General Bonta. “As the People’s Attorney, I’m committed to lifting up the voices of communities who live at the intersection of poverty and pollution. The fact is: communities like the one impacted by this Project in San Bernardino are all too often overburdened and under-resourced. These communities, who are already experiencing health harms from pollution, deserve to be protected to the fullest extent of the law, and through our Bureau of Environmental Justice, we're committed to seeing this fight through.”

The Project, which includes a 658,500 square-foot warehouse, will generate dozens of additional flights and thousands of additional truck trips every day – resulting in an estimated one ton of additional daily air pollution. Already, the Project is being operated by Amazon seven days a week, and it is expected to reach full buildout and operations in the next four years. The facility is located near the San Bernardino-Muscoy community in San Bernardino County, a community identified by the California Air Resources Board as disproportionately burdened by pollution. Residents in this area are among the top 5% of Californians for the prevalence of asthma-related hospital visits, and among the top 3% for emergency room visits due to heart attacks. 

In February 2020, the California Department of Justice’s Bureau of Environmental Justice filed a lawsuit challenging the Project's approval. In today’s petition, Attorney General Bonta argues that the panel decision should be reconsidered because:

• The panel’s creation of a new burden of proof for petitioners to challenge agency decisions under the National Environmental Policy Act (NEPA) is inconsistent with Ninth Circuit precedent;
• The panel’s decision to allow an agency to rest the Project's approval on a flawed environmental analysis where impacts are highly uncertain and controversial conflicts with Ninth Circuit and Supreme Court precedents; and
• The decision presents questions of exceptional importance to the State of California relating to NEPA's mandate for government transparency and the ability of the public, particularly environmental justice communities, to protect themselves from the environmental harms of federal agency action.

Attorney General Bonta is committed to fighting environmental injustices throughout California and being a voice for frontline communities hit first and worst by environmental pollution. On April 28, 2021, Attorney General Bonta announced the expansion of the California Department of Justice’s Bureau of Environmental Justice. You can find more information on the Bureau and its work at: https://oag.ca.gov/environment/justice.

A copy of the petition can be found here.