Natural Resources Defense Council v. City of Los Angeles CA4/1 ( 2023 )


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  • Filed 12/29/23 Natural Resources Defense Council v. City of Los Angeles CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    NATURAL RESOURCES DEFENSE                                            D080902
    COUNCIL, INC. et al.,
    Plaintiffs and Appellants,
    (Super. Ct. No. 37-2021-
    v.                                                         00023385-CU-TT-CTL)
    CITY OF LOS ANGELES et al.,
    Defendants and Respondents;
    CHINA SHIPPING (NORTH
    AMERICA) HOLDING CO., LTD. et al.
    Real Parties in Interest and
    Respondents.
    APPEALS from a judgment of the Superior Court of San Diego County,
    Timothy B. Taylor, Judge. Reversed; remanded for further proceedings.
    Bayron T. Gilchrist, Barbara B. Baird, Kathryn Roberts and Josephine
    Soyun Lee, for Plaintiff and Appellant South Coast Air Quality Management
    District.
    Jacklyn H. Prange, Margaret T. Hsieh, David Pettit and Melissa Lin
    Perrella, for Plaintiffs and Appellants Natural Resources Defense Council
    San Pedro and Peninsula Homeowners Coalition, San Pedro Peninsula
    Homeowners United, Inc., East Yard Communities for Environmental
    Justice, and Coalition for Clean Air, Inc.
    Office of the City Attorney of Los Angeles, Hydee Feldstein Soto,
    Steven Y. Otera, Justin M. Houterman and John T. Driscoll; Meyers Nave,
    Amrit S. Kulkarni, Julia L. Bond and Shaye Diveley, for Defendants and
    Respondents.
    No appearances for Real Parties in Interest and Respondents China
    Shipping (North America) Holding Co., LTD et al.
    I.
    INTRODUCTION
    On October 8, 2019, the Los Angeles Board of Harbor Commissioners
    (LABHC) certified a supplemental environmental impact report (the 2019
    SEIR) regarding a project defined as “the continued operation of the China
    Shipping (CS) Container Terminal located in the Port of Los Angeles (Port),
    under new or revised mitigation measures” as complying with the California
    Environmental Quality Act (CEQA; Pub. Resources Code,1 § 21000 et seq.).
    Appellants Community Petitioners2 and South Coast Air Quality
    Management District (SCAQMD)3 sued defendants the City of Los Angeles
    1    Further statutory references are to the Public Resources Code unless
    otherwise indicated.
    2     Community Petitioners are San Pedro and Peninsula Homeowners
    Coalition, San Pedro Peninsula Homeowners United, East Yard Communities
    for Environmental Justice, Coalition for Clean Air, and Natural Resources
    Defense Council.
    2
    (the City), the Los Angeles City Council (City Council), the City of Los
    Angeles Harbor Department (LAHD) and LABHC, alleging a broad variety of
    CEQA violations with respect to the 2019 SEIR.4 The trial court determined
    that the 2019 SEIR violated CEQA in multiple ways, including in its failure
    to ensure that the mitigation measures included in the SEIR were
    enforceable. The trial court also found that the SEIR failed to adequately
    analyze the emissions impacts of the project, and improperly modified or
    deleted mitigation measures that had been adopted in the original 2008 EIR
    regarding the use of alternative marine power and implementation of an
    electric yard tractor pilot project. The trial court rejected the other CEQA
    claims. Based on the CEQA violations the court did find, it issued a writ of
    mandate directing the Port to set aside the certification of the 2019 SEIR and
    to prepare a revised SEIR that complies with CEQA. Although the
    Community Petitioners and SCAQMD requested additional briefing on the
    issue of whether the court could impose any further or additional remedy,
    including the cessation of Port activities or the required implementation of
    mitigation measures that had been included in the original EIR and retained
    in the SEIR, the trial court disallowed further briefing and indicated that it
    had provided the only remedy available under CEQA.
    The Community Petitioners and SCAQMD appealed, arguing that the
    trial court erred in concluding that certain other mitigation measures
    3     SCAQMD is a local agency with responsibility for comprehensive
    regulation of air pollution throughout the South Coast Air Basin, which
    includes all or portions of Los Angeles, Orange, Riverside, and
    San Bernardino Counties. (Health & Saf. Code, §§ 40410, 40412.)
    4    The Attorney General and California Air Resources Board (CARB)
    eventually intervened in the action, as well.
    3
    adopted in the 2019 SEIR constituted all feasible mitigation and erred in its
    determination that the only available remedy was to set aside the 2019 SEIR.
    We conclude that two of the other CEQA claims involving proposed
    mitigation asserted by appellants have merit, and we also agree with
    appellants that the trial court failed to comprehend the statutory authority
    granted to it under section 21168.9, the CEQA provision that authorizes
    court remedies for CEQA violations, and incorrectly believed that it was
    limited to ordering the Port to set aside its certification of the 2019 SEIR,
    only. We therefore reverse the judgment and remand to the court to allow it
    to consider its authority to fashion a remedy that it believes is appropriate
    considering the purposes of CEQA and the significance of the CEQA
    violations at issue in this case. We also direct the trial court to include
    further direction to the Port that any newly adopted SEIR address the
    failings that we have identified in the 2019 SEIR in this opinion, in addition
    to the failings that the trial court identified in its order.
    II.
    BACKGROUND
    A.    Contextual background
    The Port is the largest port in North America in terms of shipping
    container volume and cargo value. The Port and the adjacent Port of Long
    Beach together handle 64 percent of shipping on the west coast of the United
    States and approximately 35 percent of all shipping in the country. The
    Port’s “major trading partners . . . include China/Hong Kong, Japan, South
    Korea, Taiwan, and Vietnam.”
    The Port is managed by the LAHD, an agency of the City.5 The LAHD
    functions as a landlord by leasing out property at the Port to tenants, and it
    5     We will refer to LAHD and the Port jointly as “the Port.”
    4
    is the Port’s tenants who are responsible for the daily handling of the cargo
    that comes through the Port. The Port houses 23 cargo terminals along its 43
    miles of waterfront.
    One of these cargo terminals is a 142-acre marine container terminal
    operating at Berths 97–109 (the Terminal) pursuant to a lease agreement
    entered into between the LAHD and China Shipping (North America)
    Holding Co., Ltd. (China Shipping).
    B.    The development of the Terminal
    In 2001, the LAHD issued Permit No. 999 (the Lease) to China
    Shipping, allowing it to construct and thereafter lease and operate the
    Terminal. The Lease provides for a term of 25 years, with three 5-year
    options to extend the Lease, exercisable by China Shipping.
    Shortly after the Port and China Shipping entered into the Lease,
    multiple parties, including some of the parties who comprise the Community
    Petitioners in this matter, sued the Port for attempting to develop and
    operate the Terminal without having prepared a project-specific EIR for the
    planned three-phase development of the Terminal. (See NRDC v. City of Los
    Angeles (2002) 
    103 Cal.App.4th 268
    , 270 (NRDC I).) On appeal in NRDC I,
    the appellate court agreed with the petitioners and directed the trial court (1)
    to order the Port to complete an EIR for all three phases of the project and (2)
    to issue an injunction staying the second and third phases of construction of
    the Terminal until further order of the court. (Id. at pp. 280–281, 285–286.)
    The first phase of construction, which the NRDC I court permitted to
    continue while the EIR was prepared, was completed in 2003.
    In 2004, the petitioners in NRDC I and the Port entered into a court-
    approved settlement, pursuant to which the Port could complete construction
    of the Terminal and begin the first phase of operations at the Terminal while
    5
    it completed the EIR that had been court-ordered in exchange for
    incorporating multiple mitigation measures as part of the Terminal’s
    construction and operation.6 Importantly, the stipulated judgment required
    the Port to amend the Lease so that China Shipping, which was not a party
    to the stipulated judgment, would also be bound by the mitigation measures
    agreed to by the Port.
    In 2005, the Port and China Shipping amended the Lease to
    incorporate the mitigation measures included in the stipulated judgment. As
    part of the amendment, the Port agreed to reimburse China Shipping for the
    costs associated with the settlement’s AMP requirements, as well as the costs
    of purchasing lower emission cargo handling equipment. The Port paid
    China Shipping $17.7 million in order to offset the increased operating costs
    associated with the mitigation measures, and agreed to pay an additional
    maximum of $3 million per year as reimbursement for the price difference
    between the increased cost of electricity associated with AMP over the cost of
    using “bunker fuel” while the ships are docked.
    C.    The certification of the EIR
    As required by NRDC I, supra, 
    103 Cal.App.4th 268
    , 285–286, and in
    conjunction with the terms of the stipulated judgment, in 2008 the Port
    certified an EIR for all three phases of the Terminal’s construction, as well as
    6      For example, among the mitigation measures the Port agreed to adopt
    was the use of “alternative maritime power” or “AMP,” which allows ships to
    turn their engines off while docked, thereby reducing pollutant emissions by
    71 to 93 percent. In addition to incorporating infrastructure at the Terminal
    for providing AMP to docked ships, the Port agreed to pay up to $5 million to
    retrofit China Shipping’s ships so that they could use AMP while docked at
    the Terminal, and further agreed to ensure that 70 percent of China
    Shipping’s ships would use AMP while docked.
    6
    the Terminal’s continued operation under a 40-year lease with China
    Shipping (the 2008 EIR).
    In the 2008 EIR, the Port determined that the Terminal’s operations
    would have significant environmental effects—particularly on air
    quality—and that it would disproportionately adversely impact minority and
    low-income populations. The EIR identified multiple feasible mitigation
    measures to be undertaken in order to reduce the negative effects of the
    Terminal’s operations. Among the mitigation measures to be implemented
    under the 2008 EIR were (1) the increased use of AMP from 2005 through
    2011, with 100 percent use of AMP by January 1, 2011; (2) increasing
    compliance with an expanded vessel speed reduction program (VSRP) that
    limited ship speed to no more than 12 knots within 40 nautical miles of the
    Port; (3) the transition to cleaner and zero-emission cargo-handling
    equipment; and (4) a requirement that an increasing percentage of drayage
    trucks calling at the Terminal use liquified natural gas (LNG).
    The 2008 EIR stated that the Port would ensure the implementation of
    the identified feasible mitigation measures through incorporation of those
    measures into the Lease with China Shipping.
    D.    The post-2008 EIR period
    After certifying the 2008 EIR, the Port failed to modify the Lease with
    China Shipping to incorporate the environmental mitigation measures
    identified in it. According to the Port, “China Shipping took the position
    during . . . negotiations [to amend the Lease] that it was not required to agree
    to an amended lease because China Shipping was not a party to the ASJ
    [amended stipulated judgment] and did not participate in the 2008 EIS/EIR
    process.”
    7
    The Los Angeles Times published an article in December 2015
    outlining the Port’s failure to adhere to the mitigation measures required in
    the 2008 EIR by permitting China Shipping to avoid consequences for
    violating various mitigation requirements, including the AMP requirements.
    The Los Angeles Times had obtained records through California Public
    Record Act requests that indicated that the Port had in fact expressly told
    China Shipping that it would not take action against it for failing to meet
    certain mitigation measures adopted in the 2008 EIR.7
    Meanwhile, in September 2015, the Port made a public announcement
    that it intended to prepare a supplemental EIR to address issues with certain
    mitigation measures that had been adopted in the 2008 EIR. The Port
    stated: “The Supplemental EIR will evaluate potential impacts of the
    continued operation of the CS Container Terminal under new and/or modified
    mitigation measures (the proposed Project) . . . . Operation of the CS
    Container Terminal has been considered in previous environmental
    documents (LAHD 1997, USACE and LAHD 2008). China Shipping and
    LAHD are proposing re-evaluation of, and possible revisions to, certain
    mitigation measures that were analyzed in the FEIS/FEIR, based on the
    feasibility of some of the mitigation measures, the availability of alternative
    technologies, and other factors warranting re-analysis of mitigation
    measures.” The Port admitted in this document that there were “11
    mitigation measures . . . that have not yet been fully implemented for various
    reasons,” and suggested that “feasibility, the availability of alternative
    7      For example, records obtained by the Los Angeles Times demonstrated
    that in 2009, the executive director of the Port indicated to China Shipping
    that it would not be held “responsible” for failing to meet the 70 percent AMP
    requirement included in the 2008 EIR.
    8
    technologies, and other factors” were reasons for the lack of implementation
    of some of the measures.
    E.    The 2019 SEIR
    For approximately four years, the Port engaged in the SEIR process.
    During this time, the Terminal continued to operate in the absence of full
    implementation of certain of the mitigation measures set out in the 2008 EIR.
    In late September 2019, the Port issued the final SEIR for the Terminal
    (the 2019 SEIR). The project as defined by the final SEIR is the “continued
    operation of the Berths 97-109 China Shipping (CS) Container Terminal
    under new and/or modified mitigation measures.” The Port refers to this
    project as the “Revised Project.”
    Similar to the 2008 EIR, the 2019 SEIR states that the new and/or
    revised mitigation measures identified in the environmental document
    “would be included in the new lease amendment.” However, the 2019 SEIR,
    like the 2008 EIR before it, failed to provide a mechanism for making the
    mitigation measures legally enforceable.
    Despite the lack of a clear mechanism for ensuring the implementation
    of the mitigation measures, the 2019 SEIR presumed that the mitigation
    measures would be implemented and it relied on those mitigation measures
    in setting out the environmental impacts of the Revised Project. The Port
    concluded that the continued operation of the Terminal would result in
    significant levels of pollution, even assuming that the mitigation measures
    would be implemented.8
    8     For example, the Port estimated that in 2030, the peak year of
    emissions, the Terminal would release over 18 times the significance
    threshold of 10,000 metric tons of CO2E.
    9
    On October 8, 2019, the LABHC certified the 2019 SEIR. No formal
    amendment to the Lease was referenced or included in LABHC’s certification.
    Community Petitioners, SCAQMD, and CARB each appealed the
    Board’s certification of the 2019 SEIR to the City Council. The City Council
    denied the appeals and itself certified the 2019 SEIR on August 12, 2020.
    F.    The filing of this action
    On September 16, 2020, approximately a month after the City Council
    certified the 2019 SEIR, Community Petitioners and SCAQMD filed separate
    petitions for writs of mandate in Los Angeles County Superior Court
    challenging the 2019 SEIR.
    Community Petitioners alleged, among other things, that the Port
    failed to make the mitigation measures in the 2019 SEIR legally enforceable,
    failed to require all feasible mitigation measures to minimize the significant
    environmental effects of the Revised Project, and improperly eliminated or
    modified certain mitigation measures that had been adopted in the 2008 EIR
    without demonstrating their infeasibility. SCAQMD alleged, among other
    things, that the Port failed to implement and enforce the mitigation measures
    that were in the 2008 EIR, used an improper baseline for analyzing the 2019
    SEIR, adopted inadequate, uncertain and unenforceable mitigation
    measures, failed to adopt all feasible mitigation measures and rejected other
    proposed mitigation measures without making adequate findings, and failed
    to provide a good faith and reasoned analysis in response to significant issues
    raised by public comments. Both sets of petitioners sought a variety of relief,
    including a writ of mandate directing the setting aside of the Lease, the
    setting aside of the Port’s decision to allow continued operation of the
    Terminal and its certification of the 2019 SEIR, the implementation and
    enforcement of the mitigation measures from the 2008 EIR, and the
    10
    refraining from granting further approvals for the operation of the Terminal
    until the Port fully complies with CEQA’s requirements.
    The trial court determined that the two matters were related and
    consolidated the cases. CARB and the Attorney General, acting on behalf of
    the People of California, successfully intervened in the action.
    In April 2021, the trial court transferred the case to San Diego County
    Superior Court.
    The trial court held a hearing on the merits of the petitions on June 24,
    2022. Three days later, the trial court issued an order denying the petitions
    in part and granting them in part. Specifically, the court determined that the
    2019 SEIR violated CEQA with respect to the mitigation measures relied on
    in the 2019 SEIR because none of the measures were made enforceable, as
    required by CEQA.9 The court further determined that the 2019 SEIR’s
    emissions impact analysis was not supported by substantial evidence because
    all of the calculations were based on an assumption that the Port and China
    Shipping would amend the Lease to incorporate the mitigation measures in
    2019, yet there was no factual basis to support the conclusion that China
    Shipping would agree to amend the Lease. However, the court upheld as
    supported by the record the Port’s decision in the 2019 SEIR to eliminate or
    modify some of the 2008 EIR mitigation measures because they are
    infeasible, and thus determined the Port’s actions with respect to these
    mitigation measures complied with CEQA, but for the fact that the measures
    9     The trial court stated that because of the lack of enforceability of the
    mitigation measures, “the Port has gone forward with the Revised
    Project—i.e., the continued operation of the Terminal—without implementing
    the mitigation measures to combat emissions,” and also stated that “[t]he
    absence of such mitigation measures for project activity constitutes a
    profound violation of CEQA.” (Italics added.)
    11
    were not made enforceable. However, as to two modifications of mitigation
    measures that had previously been adopted in the 2008 EIR (MM AQ-9, MM
    AQ-17), the court concluded that the Port’s conclusions of infeasibility were
    not supported by substantial evidence in the record. The court thereafter
    proceeded to reject the petitioners’ further arguments that the 2019 SEIR
    failed to adopt additional feasible mitigation measures with respect to
    greenhouse gases (GHG), top handlers and forklifts, and drayage trucks.
    Although the petitioners and intervenors requested that the court
    consider additional briefing on the issue of what remedies would be
    appropriate in light of the trial court’s rulings, the court rejected the request
    for additional briefing, stating: “The court may not direct the Port to carry
    out its obligations under CEQA in any particular way. Pub. Res. Code[,]
    § 21168.9(c). Absent a consent decree, the court may only declare an earlier
    CEQA document invalid and order it set aside. The court has done so here.”
    On July 15, 2022, the trial court entered a judgment in which it issued
    a peremptory writ of mandate, returnable in 60 days, directing the Port to:
    (1) “Set aside certification of the [2019 SEIR] for the revised
    Berths 97-109 [China Shipping] Container Terminal
    Project . . . by the Los Angeles Board of Harbor
    Commissioners on October 8, 2019 . . . as well as related
    project approvals”;
    (2) “Provide a schedule for preparing a new supplemental
    or subsequent environmental review document for the
    Berths 97-109 [China Shipping] Container Terminal
    Project that complies with the California Environmental
    Quality Act (“CEQA”) and revises the analysis in the SEIR
    where the Court—in its July 27, 2022 order—found
    Respondents failed to proceed as required by law or failed
    to support their findings with substantial evidence[ ] [and]
    [e]nsure that the new supplemental or subsequent
    environmental review document is prepared in good faith
    and without unreasonable delay”;
    12
    (3) “Ensure that any future determinations, findings, and
    decisions to approve a project at Berths 97-109 [China
    Shipping] Container Terminal fully comply with CEQA,
    including by ensuring that any adopted mitigation
    measures are fully enforceable through permit conditions,
    agreements, or other legally binding instrument”;
    (4) “Take such further actions as may be necessary to
    comply with CEQA in accordance with the Court’s June 27,
    2022 order on Petitioners’ and Intervenors’ petitions in this
    action”; and
    (5) “Within sixty (60) days after service of this writ of
    mandate, file and serve a return setting forth the actions
    taken to comply fully with the terms of this writ of
    mandate.”
    The trial court’s judgment includes language by which the court
    “expressly retains jurisdiction over Respondents’ return to the Writ and any
    subsequent return proceedings until the Court has determined that
    Respondents have fully complied with CEQA.”
    Community Petitioners and SCAQMD timely appealed from the
    judgment.
    III.
    DISCUSSION
    Community Petitioners and SCAQMD both contend that the trial court
    erred in setting forth its remedy for the CEQA violations found to exist with
    respect to the 2019 SEIR. They contend that the trial court’s chosen
    remedy—the setting aside of the 2019 SEIR while allowing operations at the
    Terminal to continue as those operations were occurring prior to the
    certification of the 2019 SEIR (i.e., without certain adopted mitigation
    measures being made enforceable and being implemented)—is insufficient to
    address the “ ‘profound’ ” CEQA violations the court found to exist.
    13
    Community Petitioners and SCAQMD argue both that the trial court failed to
    adequately understand the legal contours of the discretion granted to it by
    CEQA to fashion an appropriate remedy for the CEQA violations found, and
    that the court abused its discretion in failing to weigh the equities of allowing
    Terminal operations to continue without ensuring that some or all of the
    mitigation that was supposed to be implemented either pursuant to the 2008
    EIR or the 2019 SEIR is being implemented while the Port revises its
    inadequate 2019 SEIR before allowing those operations to continue.
    The Community Petitioners and SCAQMD also separately challenge
    the 2019 SEIR itself, arguing that the Port abused its discretion in certifying
    the 2019 SEIR because (1) the Port’s rejection of a zero-emission
    demonstration project for cargo-moving equipment such as top handlers and
    large forklifts is not supported by substantial evidence; (2) the Port’s decision
    to make a GHG emissions fund measure a lease measure rather than a
    mitigation measure is not supported by substantial evidence; and (3) the Port
    failed to respond adequately to comments and requests that it appoint an
    independent third party to monitor the Revised Project’s compliance with the
    adopted mitigation measures.
    In addition, SCAQMD separately argues that the Port abused its
    discretion in certifying the 2019 SEIR because (1) the Port’s decision to delete
    as infeasible the drayage truck fleet mitigation measure in the 2008 EIR
    requiring an increasing percentage of trucks that utilize LNG is not
    supported by substantial evidence; (2) the Port’s decision not to implement
    another replacement mitigation measure requiring some other near-zero or
    zero-emission drayage truck technology to replace the LNG drayage truck
    mitigation measure is not supported by substantial evidence; and (3) the
    Port’s decision to modify a 2008 EIR mitigation measure by reducing the
    14
    required compliance with a vessel speed reduction program from 100 percent
    to 95 percent is not supported by substantial evidence.
    As we explain further, we agree with some of Community Petitioners
    and SCAQMD’s arguments on appeal that certain of the Port’s actions
    regarding the modification or rejection of certain mitigation measures in the
    2019 SEIR are not supported by substantial evidence. However, as to other
    mitigation measure decisions, we conclude that substantial evidence supports
    the Port’s determinations. Finally, we agree with Community Petitioners
    and SCAQMD that the trial court’s comments indicate that the court failed to
    appreciate the full scope of its authority to determine what would be an
    appropriate remedy for the CEQA violations found to exist in this case.
    A.    Relevant legal standards
    1.    CEQA overview and the role of an EIR
    “CEQA was enacted to advance four related purposes: to (1) inform the
    government and public about a proposed activity's potential environmental
    impacts; (2) identify ways to reduce, or avoid, environmental damage;
    (3) prevent environmental damage by requiring project changes via
    alternatives or mitigation measures when feasible; and (4) disclose to the
    public the rationale for governmental approval of a project that may
    significantly impact the environment.” (California Building Industry Assn. v.
    Bay Area Air Quality Management Dist. (2015) 
    62 Cal.4th 369
    , 382 (Building
    Industry).) “CEQA embodies a central state policy to require state and local
    governmental entities to perform their duties ‘so that major consideration is
    given to preventing environmental damage.’ [Citations.] [¶] CEQA
    prescribes how governmental decisions will be made when public entities,
    including the state itself, are charged with approving, funding—or
    themselves undertaking—a project with significant effects on the
    15
    environment.” (Friends of the Eel River v. North Coast Railroad Authority
    (2017) 
    3 Cal.5th 677
    , 711–712, italics omitted (Eel River).) “The foremost
    principle under CEQA is that the Legislature intended the act ‘to be
    interpreted in such manner as to afford the fullest possible protection to the
    environment within the reasonable scope of the statutory language.’ ”
    (Laurel Heights Improvement Assn. v. Regents of University of California
    (1988) 
    47 Cal.3d 376
    , 390 (Laurel Heights).)
    “With narrow exceptions, CEQA requires an EIR whenever a public
    agency proposes to approve or to carry out a project that may have a
    significant effect on the environment. [Citations.]” (Laurel Heights, supra,
    47 Cal.3d at pp. 390–391; see Cal. Code Regs., tit. 14, § 15002, subd. (f).)10 A
    “significant effect” is defined as “a substantial, or potentially substantial,
    adverse change in the environment.” (§ 21068.) “The basic purpose of an EIR
    is to ‘provide public agencies and the public in general with detailed
    information about the effect [that] a proposed project is likely to have on the
    environment; to list ways in which the significant effects of such a project
    might be minimized; and to indicate alternatives to such a project.’
    [Citations.] ‘Because the EIR must be certified or rejected by public officials,
    10    The state regulatory guidelines that implement CEQA (the Guidelines)
    are set forth in the California Code of Regulations, title 14, section 15000, et
    seq. (See § 21083.) “The term ‘CEQA Guidelines’ refers to the regulations for
    the implementation of CEQA authorized by the Legislature (Pub. Resources
    Code, § 21083), codified in title 14, section 15000 et seq. of the California
    Code of Regulations, and ‘prescribed by the Secretary of Resources to be
    followed by all state and local agencies in California in the implementation of
    [CEQA].’ [Citation.] In interpreting CEQA, we accord the CEQA Guidelines
    great weight except where they are clearly unauthorized or erroneous.”
    (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 
    41 Cal.4th 372
    , 380, fn. 2 (Muzzy Ranch).)
    16
    it is a document of accountability. If CEQA is scrupulously followed, the
    public will know the basis on which its responsible officials either approve or
    reject environmentally significant action, and the public, being duly
    informed, can respond accordingly to [an] action with which it disagrees.’
    [Citation.] The EIR “protects not only the environment but also informed
    self-government.’ ” (Sierra Club v. County of Fresno (2018) 
    6 Cal.5th 502
    ,
    511–512 (Sierra Club).) In this way, “ ‘ “[t]he EIR is the heart of CEQA,” and
    the integrity of the process is dependent on the adequacy of the EIR.’ ”
    (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 
    208 Cal.App.4th 899
    , 924.)
    “Ideally, an EIR serves ‘to identify the significant effects on the
    environment of a project, to identify alternatives to the project, and to
    indicate the manner in which those significant effects can be mitigated or
    avoided.’ ” (County of Butte v. Department of Water Resources (2022)
    
    13 Cal.5th 612
    , 627 (County of Butte), quoting Pub. Resources Code,
    § 21002.1, subd. (a).) An EIR “must include a description of the proposed
    project and its environmental setting and discussions of (1) the possible
    environmental effects of the project, (2) feasible measures to mitigate any
    significant, adverse environmental effects of the project, (3) the comparative
    environmental effects of a range of reasonable alternatives to the proposed
    project, including a ‘no project’ alternative, and (4) the cumulative impact of
    the project's various environmental effects. [Citation]” An EIR may also
    include a discussion of the economic and social effects of the
    project.[Citation]” (County of Butte, at p. 627.)
    Because the EIR “serves to inform decision makers and the general
    public about the nature and environmental impact of a proposed project,
    feasible ways to reduce that impact (often through the mechanism of
    17
    mitigation measures), and possible alternatives to the project [citation]”
    (County of Butte, supra, 13 Cal.5th at p. 627), it is fundamental that an EIR
    “include a meaningful discussion of . . . mitigation measures” (Laurel Heights,
    supra, 47 Cal.3d at p. 403, italics added). “Mitigation measures are
    modifications of the proposed design and implementation of a project imposed
    by the lead agency to reduce the project's adverse environmental effects. If
    an EIR identifies significant environmental effects, CEQA requires the
    adoption of mitigation measures when ‘it is feasible to do so.’ ” (County of
    Butte, supra, 13 Cal.5th at p. 627.)11 As the Supreme Court has noted,
    “CEQA's mitigation measures play a crucial role in reducing the
    environmental impact of projects undertaken in California.” (Id. at p. 628.)
    However, “CEQA recognizes that ‘economic, social, [technological] or
    other conditions [may] make it infeasible to mitigate one or more significant
    effects on the environment’ and that in those circumstances ‘the project may
    11    The Guidelines specify that “ ‘mitigation’ includes” the following:
    “(a) Avoiding the impact altogether by not taking a certain
    action or parts of an action.
    “(b) Minimizing impacts by limiting the degree or
    magnitude of the action and its implementation.
    “(c) Rectifying the impact by repairing, rehabilitating, or
    restoring the impacted environment.
    “(d) Reducing or eliminating the impact over time by
    preservation and maintenance operations during the life of
    the action.
    “(e) Compensating for the impact by replacing or providing
    substitute resources or environments, including through
    permanent protection of such resources in the form of
    conservation easements.” (Guidelines, § 15370.)
    18
    nonetheless be carried out or approved at the discretion of a public agency if
    the project is otherwise permissible under applicable laws and regulations.’ ”
    (County of Butte, supra, 13 Cal.5th at p. 627, quoting Pub. Resources Code,
    § 21002.1, subd. (c).) CEQA defines “ ‘[f]easible’ ” as “capable of being
    accomplished in a successful manner within a reasonable period of time,
    taking into account economic, environmental, social, and technological
    factors.” (§ 21061.1; Guidelines, § 15364.)
    Because of the critical importance of mitigation measures in reducing
    environmental impacts, an agency generally may not defer formulation of
    mitigation measures to the future. (Guidelines, § 15126.4, subd. (a)(1)(B).)
    However, an agency may develop the specific details of a mitigation measure
    “after project approval when it is impractical or infeasible to include those
    details during the project's environmental review provided that the agency
    (1) commits itself to the mitigation, (2) adopts specific performance standards
    the mitigation will achieve, and (3) identifies the type(s) of potential action(s)
    that can feasibly achieve that performance standard and that will considered,
    analyzed, and potentially incorporated in the mitigation measure.” (Ibid.)
    In addition, “[a] public agency shall provide that measures to mitigate
    or avoid significant effects on the environment are fully enforceable through
    permit conditions, agreements, or other measures. Conditions of project
    approval may be set forth in referenced documents which address required
    mitigation measures or, in the case of the adoption of a plan, policy,
    regulation, or other public project, by incorporating the mitigation measures
    into the plan, policy, regulation, or project design.” (§ 21081.6, subd. (b); see
    Guidelines, § 15126.4, subd. (a)(2) [“Mitigation measures must be fully
    enforceable through permit conditions, agreements, or other legally-binding
    19
    instruments,” or may be “incorporated into the plan, policy, regulation, or
    project design.”].)
    “Further, to ‘ensure that the mitigation measures and project revisions
    identified in the EIR . . . are implemented,’ the lead agency, when approving
    the EIR, must also adopt ‘a program for monitoring or reporting on the
    revisions which it has required in the project and the measures it has
    imposed to mitigate or avoid significant environmental effects.’ ” (County of
    Butte, supra, 13 Cal.5th at p. 628, quoting Guidelines, § 15097, subd. (a).)
    B.    Analysis
    1.     Appellants’ challenges to Port’s actions with respect to
    mitigation measures in the 2019 SEIR
    The Community Petitioners and SCAQMD contend that certain
    determinations made by the Port in the 2019 SEIR violate CEQA.12
    a.       Standards of review applicable to challenges to an
    agency’s compliance with CEQA
    When an appellant challenges whether an agency’s actions complied
    with CEQA, an “appellate court reviews the agency's action, not the trial
    court's decision; in that sense appellate judicial review [of an Agency’s action]
    under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth,
    Inc. v. City of Rancho Cordova (2007) 
    40 Cal.4th 412
    , 427; see Muzzy Ranch,
    supra, 41 Cal.4th at p. 381 [“In a CEQA case, as in other mandamus cases,
    our review of the administrative record for error is the same as the trial
    court's; we review the agency's action, not the trial court's decision.”].)
    12    Again, the trial court agreed with the petitioners that some of the
    Port’s determinations in the 2019 SEIR violated CEQA, but the court rejected
    other of the petitioners’ challenges to the 2019 SEIR. On appeal, the
    Community Petitioners and SCAQMD limit their challenges to a subset of
    the petitioners’ challenges to the 2019 SEIR that the trial court rejected.
    20
    “The standard of review [applied to the agency’s action] in a CEQA
    case, as provided in sections 21168.5 and 21005, is abuse of discretion.
    Section 21168.5 states in part: ‘In any action or proceeding . . . to attack,
    review, set aside, void or annul a determination, finding, or decision of a
    public agency on the grounds of noncompliance with this division, the inquiry
    shall extend only to whether there was a prejudicial abuse of discretion.’
    [Citation.] Our decisions have thus articulated a procedural issues/factual
    issues dichotomy. ‘[A]n agency may abuse its discretion under CEQA either
    by failing to proceed in the manner CEQA provides or by reaching factual
    conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial
    review of these two types of error differs significantly: While we determine de
    novo whether the agency has employed the correct procedures, “scrupulously
    enforc[ing] all legislatively mandated CEQA requirements” [citation], we
    accord greater deference to the agency's substantive factual conclusions. In
    reviewing for substantial evidence, the reviewing court “may not set aside an
    agency's approval of an EIR on the ground that an opposite conclusion would
    have been equally or more reasonable,” for, on factual questions, our task “is
    not to weigh conflicting evidence and determine who has the better
    argument.” ’ ” (Sierra Club, supra, 6 Cal.5th at p. 512.)
    The Sierra Club court explained that the “procedural issues/factual
    issues dichotomy” has generally worked well for courts reviewing agency
    determinations. (Sierra Club, 
    supra,
     6 Cal.5th at p. 512.) For example, some
    procedural questions, such as whether an agency has provided sufficient
    notice and opportunity to comment on a draft EIR, or whether an agency has
    entirely omitted a required discussion, have clear answers. However, in
    other scenarios, “the question whether an agency has followed proper
    procedures is not always so clear. This is especially so when the issue is
    21
    whether an EIR's discussion of environmental impacts is adequate, that is,
    whether the discussion sufficiently performs the function of facilitating
    ‘informed agency decision making and informed public participation.’ ” (Id. at
    pp. 512–513.)
    The Supreme Court thus summarized three “basic principles”
    regarding the standard of review applicable to questions raised as to the
    adequacy of an EIR: “(1) An agency has considerable discretion to decide the
    manner of the discussion of potentially significant effects in an EIR. (2)
    However, a reviewing court must determine whether the discussion of a
    potentially significant effect is sufficient or insufficient, i.e., whether the EIR
    comports with its intended function of including ‘ “ ‘detail sufficient to enable
    those who did not participate in its preparation to understand and to consider
    meaningfully the issues raised by the proposed project.’ ” ’ [Citation.] (3) The
    determination whether a discussion is sufficient is not solely a matter of
    discerning whether there is substantial evidence to support the agency's
    factual conclusions.” (Sierra Club, supra, 6 Cal.5th at pp. 515–516.) “The
    ultimate inquiry, as case law and the CEQA guidelines make clear, is
    whether the EIR includes enough detail ‘to enable those who did not
    participate in its preparation to understand and to consider meaningfully the
    issues raised by the proposed project.’ ” (Id. at p. 516.) Generally, that
    inquiry is a mixed question of law and fact subject to de novo review, but to
    the extent factual questions (such as the agency's decision with respect to
    which methodologies to employ for analyzing an environmental effect)
    predominate, a substantial evidence standard of review will apply. (Ibid.) In
    considering such questions, however, courts “do not require technical
    perfection or scientific certainty: ‘ “ ‘[T]he courts have looked not for an
    exhaustive analysis but for adequacy, completeness and a good-faith effort at
    22
    full disclosure.’ ” ’ ” (Id. at p. 515.) In sum, “the reviewing court must decide
    whether the EIR serves its purpose as an informational document” (id. at p.
    516), by providing sufficient detail to enable “ ‘the public to discern from the
    [EIR] the “analytic route the . . . agency traveled from evidence to action” ’ ”
    (California Oak Foundation v. Regents of University of California (2010)
    
    188 Cal.App.4th 227
    , 262 (California Oak Foundation)).
    Substantial evidence for CEQA purposes is “enough relevant
    information and reasonable inferences from this information that a fair
    argument can be made to support a conclusion, even though other conclusions
    might also be reached.” (Guidelines, § 15384, subd. (a).) Substantial
    evidence includes “facts, reasonable assumptions predicated upon facts, and
    expert opinion supported by facts.” (Id., subd. (b).) It does not include
    argument, speculation, unsubstantiated opinion or narrative, or clearly
    erroneous or inaccurate evidence. (Id., subd. (a).)
    b.     Application
    i.    The Port’s rejection of a zero-emission demonstration
    project for cargo-moving equipment such as top
    handlers and large forklifts
    Appellants contend that the Port should not have rejected a suggestion
    that it adopt as a mitigation measure a zero-emission top handler and large
    forklift demonstration project and the subsequent deployment of the use of
    any zero-emission equipment demonstrated to be successful through such a
    pilot project. Community Petitioners argue that the 2019 SEIR “does not
    even consider whether it would be feasible to require zero-emission top
    handlers and large forklifts after a successful demonstration project,” and
    instead “merely repeats its conclusion that zero-emission top handlers and
    23
    large forklifts are not currently feasible without addressing whether the Port
    should require a demonstration project.”
    As stated earlier, CEQA requires the adoption of mitigation measures
    to reduce significant environmental effects whenever “ ‘it is feasible to do
    so.’ ” (County of Butte, supra, 13 Cal.5th at p. 627.) CEQA defines
    “ ‘[f]easible’ ” as “capable of being accomplished in a successful manner within
    a reasonable period of time, taking into account economic, environmental,
    social, and technological factors.” (§ 21061.1; Guidelines, § 15364.) In other
    words, a mitigation measure must be adopted only where the measure can
    actually accomplish the reduction or elimination of certain of the project’s
    adverse environmental effects “within a reasonable period of time.”
    (§ 21061.1; Guidelines, § 15364.)
    Here, the Port’s technology review found that “zero- and near-zero-
    emissions top handlers are not yet in commercial production and that the
    technologies did not achieve the basic considerations of commercial and
    technical viability needed for further consideration,” and that “[g]iven their
    lack of demonstrated ability to perform as required in marine
    terminals, . . . zero- and near-zero-emissions top handlers are not yet feasible
    technologies.” This conclusion is supported by substantial evidence in the
    record, which includes a 2018 Feasibility Assessment for Cargo-Handling
    Equipment report, prepared by consultants Tetra Tech and Gladstein,
    Neadross & Associates in connection with the 2017 Clean Air Action Plan
    Update (2017 CAAP), created by the Ports of Long Beach and Los Angeles.13
    The authors of this report determined that, with the exception of electric
    13    The 2017 CAAP “serve[s] as high-level guidance for continued emission
    reduction activities in collaboration with industry stakeholders, regulatory
    agencies, local communities, and environmental groups for the next 20
    years.”
    24
    rubber-tired gantry cranes and yard tractors, other zero- and near-zero-
    emission cargo handling equipment was not commercially and/or technically
    viable. Thus, the Port concluded that zero- or near zero-emissions
    technologies in other cargo handling equipment, while “promising,”
    nevertheless “require longer-term evaluations to establish the technical
    viability, operational reliability and the ability to attract participation from
    established original equipment manufacturers . . . .” Given the current state
    of zero- or near-zero-emission technologies described in the 2018 Feasibility
    Assessment for Cargo-Handling Equipment report, the record supports the
    Port’s determination that such technologies are not currently technologically
    and operationally viable as replacements for current Terminal cargo handling
    equipment. It appears clear, and appellants do not dispute, that the Port did
    not abuse its discretion in concluding that it could not rely on the use of zero-
    or near-zero-emission cargo handling equipment to accomplish the mitigation
    of cargo handling emissions “within a reasonable period of time” (§ 21061.1),
    and thus did not adopt a mitigation measure requiring the present use of
    such equipment.
    Appellants nevertheless argue, however, that the Port should have
    adopted as a mitigation measure a demonstration program for zero- or near-
    zero-emission cargo handling equipment. We are not convinced. Mitigation
    measures are, by their nature, modifications incorporated into a project that
    will—in actuality—reduce a project’s adverse environmental effects. (See,
    e.g., County of Butte, supra, 13 Cal.5th at p. 627 [“Mitigation measures are
    modifications of the proposed design and implementation of a project imposed
    by the lead agency to reduce the project's adverse environmental effects.”].) A
    demonstration program, by its nature, is test project, aiming to determine
    whether a particular program can achieve a successful outcome; as a result, a
    25
    demonstration program may not be successful in reducing or minimizing an
    adverse environmental impact. Because mitigation under CEQA requires the
    actual reduction of a significant environmental effect, a project requirement
    for a demonstration project would not meet this standard.14 Appellants have
    therefore not demonstrated that the Port abused its discretion in declining to
    adopt a zero- or near-zero-emission cargo handling equipment demonstration
    project as a mitigation measure in the 2019 SEIR.
    ii.  The Port’s decision to make a greenhouse gas (GHG)
    emissions fund measure a
    lease measure rather than a mitigation measure is not
    supported by substantial evidence
    Appellants assert that the Port abused its discretion with respect to the
    adoption of a nonbinding measure requiring China Shipping to make annual
    contributions of $250,000 over an eight-year period (for a total of $2 million)
    to a “Greenhouse Gas Fund.” According to the 2019 SEIR, the GHG Fund
    will be used to pay for Port-approved emissions reduction projects or to
    purchase credits from a CARB-approved offset registry.15 NRDC sets forth a
    multi-pronged challenge to the “Greenhouse Gas Fund” measure. For
    example, NRDC challenges the sufficiency of the evidence to support the
    Port’s reasoning for concluding that the “Greenhouse Gas Fund” measure
    could not be adopted as a mitigation measure but instead should only be
    14    Appellants have not cited to any case that considers or examines a
    mitigation measure consisting of the requirement of a demonstration project,
    and this court has not independently found one. Nor do the Guidelines
    discuss the use of demonstration or pilot programs as possible mitigation.
    15   A GHG emission “offset” is an “activi[y] that reduce[s] or eliminate[s]
    [GHG] emissions or increase carbon sequestration.” (Golden Door Properties,
    LLC v. County of San Diego (2020) 
    50 Cal.App.5th 467
    , 485 (Golden Door).)
    26
    adopted as a lease measure. Specifically, NRDC challenges whether the
    assertion made by the Port that the efficacy of the use of funds to reduce
    emissions “cannot be quantified”—and therefore its decision not to make the
    measure a binding mitigation measure—are supported by substantial
    evidence. NRDC also contends that this measure was effectively included in
    the 2019 SEIR as a mitigation measure, as opposed to a mere lease measure,
    because the Port relied on the measure for a reduction in emissions. Finally,
    NRDC argues that the measure is deficient as a mitigation measure in two
    respects: (1) the amount required of China Shipping to pay into the fund is
    insufficient; and (2) the measure fails to contain restrictions on where the
    offsets may be purchased, and in this way the measure fails to ensure that
    the offsets are real, “enforceable,” and “not otherwise required” (see
    Guidelines, § 15126.4, subds. (a)(2), (c)(3)).
    The 2019 SEIR acknowledges that the GHG impacts of the Revised
    Project are significant, in that the GHG emissions will exceed the significance
    threshold of 10,000 metric tons of CO2E in “all study years.”16 In recognition
    of the significant GHG impacts of operating the Terminal pursuant to the
    Lease, the 2019 SEIR includes two new measures, beyond the mitigation
    measures that were included in the 2008 EIR and re-adopted or modified in
    the 2019 SEIR. First, the 2019 SEIR adopted new mitigation measure MM
    GHG-1, which requires that “[a]ll lighting withing the interior of buildings on
    the premises and outdoor high mast terminal lighting . . . be replaced with
    LED lighting or a technology with similar energy-saving capabilities within
    two years after the effective date of the new lease amendment between the
    16    The Port has estimated that Terminal operations will release between
    65,534 and 183,424 metric tons of CO2E per year, with the peak release
    occurring in 2030, even after the adopted mitigation measures are
    implemented.
    27
    Tenant and the LAHD or by no later than 2023.” Second, the 2019 SEIR
    adopted new lease measure LM GHG-1, which requires the establishment of
    the GHG Fund, which “shall be used for GHG-reducing projects and
    programs approved by the Port of Los Angeles, or through the purchase of
    emission reduction credits from a CARB approved offset registry.” The lease
    measure requires China Shipping to make annual contributions of $250,000
    to a newly established Greenhouse Gas Fund for a period of eight years, for a
    total contribution of $2 million. The Port reached the $2 million figure by
    multiplying the excess GHG emissions over the significance threshold of
    10,000 metric tons/year expected to be released in 2030 (i.e., 129,336 metric
    tons of CO2E) by the 2019 market value of carbon credits set by CARB (i.e.,
    $15.62). In other words, the 2019 SEIR asks China Shipping to pay for
    carbon offsets for the excess GHG emissions the Terminal will release in
    2030—a single year of the Lease.
    NRDC challenges LM GHG-1 on the ground that the Port relies on the
    lease measure as a GHG emissions reduction measure in the 2019 SEIR but
    fails to ensure that the amount accounts for the many years of excess GHG
    emissions that will result from activities at the Terminal over the life of the
    Lease, and because it lacks restrictions as to where the offsets derive, thereby
    failing to ensure that the offsets funded “are real, ‘enforceable,’ and ‘not
    otherwise required,’ ” as necessary under the Guidelines (see Guidelines,
    § 15126.4, subds. (a)(2), (c)(3)).
    The Port takes the position that because the GHG Fund measure is a
    “lease measure” only, and was specifically disclaimed as a “mitigation
    measure,” the Port is not relying on the measure to reduce the Revised
    Project’s significant impacts and none of the legal requirements that apply to
    mitigation measures apply to the Greenhouse Gas Fund measure. According
    28
    to the Port, the 2019 SEIR “attributed no credit for reduction in GHG
    emissions to LM GHG-1.” The Port contends that its conclusion that the
    actual mitigation included in the 2019 SEIR constituted “all feasible
    mitigation for GHG emissions” is a determination that is supported by
    substantial evidence in the record, “namely the Port’s comprehensive
    evaluation of currently available GHG emissions-control technologies.”
    Because the Port is not relying on the “Greenhouse Gas Fund” measure as
    mitigation, the Port’s argument goes, NRDC’s legal citations are inapplicable
    because they involve “case law concerning whether certain measures in other
    EIRs constituted valid ‘mitigation’ under CEQA that could be credited with
    avoiding or reducing significant environmental impacts.” According to the
    Port, the 2019 SEIR “specifically declaimed LM GHG-1 as a CEQA mitigation
    measure,” and instead identified it “as a lease condition” because it could
    “potentially contribut[e] to ongoing efforts to bring Port-wide GHG emissions
    down,” but it “could not be determined to reduce or avoid” the emissions
    impacts of operations at the Terminal.
    As NRDC points out, however, the Port does appear to rely on the
    reduction in GHG emissions from LM GHG-1, the GHG Fund, in its decision-
    making surrounding the 2019 SEIR. For example, in the Port’s Findings of
    Fact and Statement of Overriding Considerations in the 2019 SEIR, the Port
    states that it has found “that changes or alterations have been required in, or
    incorporated into, the Revised Project, in the form of MM GHG-1 and LM
    GHG-1, below, that lessen the significant environmental effect identified in the
    Final SEIR.” (Italics added.) In addition, throughout the SEIR process, the
    Port repeatedly refers to LM GHG-1 as a “mitigation measure,” despite
    titling it a mere “lease measure.” For example, the circulated Draft SEIR
    (the RDSEIR) refers to LM GHG-1 as one of two “[n]ew GHG mitigation
    29
    measures, summarized below, [that] would reduce GHG emissions.” (Italics
    added.) In addition, in responding to comments from NRDC in which it
    charged the Port with failing to grapple fully with the issue of the Revised
    Project’s GHG impacts, the Port refers to the GHG Fund measure as one of
    “two additional mitigation measures” that were “introduce[d]” in connection
    with the Revised Project “to reduce its GHG impacts.” In another response to
    a comment proposing that “mitigation funds should be provided to the Harbor
    Community Benefit Foundation for projects to reduce GHG impacts off-port
    property,” the Port responded that the commenter “provides no evidence or
    data that providing offset credits to the California Air Resources Board
    [(CARB)] or another appropriate entity for GHG-reducing projects and
    programs on Port of Los Angeles property would be insufficient to mitigate the
    GHG impacts of the Revised Project.” (Italics added.) Such language is
    imbued with the implication that the Port believes that the GHG Fund was
    created, in part, as a means of mitigating at least some of the GHG impacts
    of the Terminal’s operation. All of this language appears to conflict with the
    Port’s assertion that it was not relying on LM GHG-1 as mitigation for the
    GHG emission impacts of the Revised Project.
    Further, and more importantly, the 2019 SEIR fails to adequately
    inform the public and decisionmakers about the reasoning underlying the
    Port’s decision to make LM GHG-1’ a mere lease measure and not a
    mitigation measure. An EIR is, fundamentally, an informational document,
    and as such, it must “reasonably set[ ] forth sufficient information to foster
    informed public participation and to enable the decision makers to consider
    the environmental factors necessary to make a reasoned decision.” (Berkeley
    Keep Jets Over the Bay Com. v. Board of Port Commissioners (2001) 
    91 Cal.App.4th 1344
    , 1356.) The 2019 SEIR fails with respect to this purpose in
    30
    connection with LM GHG-1. Although the Port asserts that it could not rely
    on LM GHG-1 for mitigation (despite having elsewhere referred to it in ways
    suggesting it is to have a mitigating role), the basis for the Port’s contention
    that LM GHG-1 cannot be a mitigation measure is its assertion that the
    “effectiveness of LM GHG-1 cannot be quantified.” This statement
    constitutes the entirety of the Port’s explanation as to why the GHG Fund
    measure was included as a “lease measure” and not a “mitigation measure.”
    The assertion that the effectiveness of directing money toward projects
    intended to offset GHG emissions “cannot be quantified” does not include any
    explanation, let alone evidence (such as expert opinion or analysis), as to why
    the effectiveness of a fund utilized, for example, for the purchase of carbon
    offsets that do ultimately satisfy CEQA’s mitigation requirements cannot be
    quantified.17 The Port merely asserts it is so. Such an assertion, without a
    reasoned explanation, is insufficient under CEQA. Again, “[t]he basic
    purpose of an EIR is to ‘provide public agencies and the public in general
    with detailed information about the effect [that] a proposed project is likely to
    have on the environment; to list ways in which the significant effects of such
    a project might be minimized; and to indicate alternatives to such a project.’
    [Citations.] ‘Because the EIR must be certified or rejected by public officials,
    it is a document of accountability.” (Sierra Club, 
    supra,
     6 Cal.5th at p. 511.)
    In order to ensure that an EIR is a “document of accountability” (ibid.),
    an EIR must engage in a meaningful way with the issues raised and provide
    detail sufficient to allow others to understand the analysis relied on by the
    17    In Golden Door, supra, 50 Cal.App.5th at pp. 483, 562, the court
    rejected an adopted carbon offset purchase mitigation measure as violating
    CEQA in a variety of ways, but in doing so the court also indicated that it is
    possible for carbon offsets to meet CEQA standards and be used to mitigate
    GHG emissions.
    31
    agency: “To fulfill the EIR's informational role, the discussion of the
    mitigation measures must contain facts and analysis, not bare conclusions
    and opinions. [Citation.] The level of detail CEQA requires in the EIR's
    discussion of facts and analysis of the mitigation measures depends on
    ‘whether the EIR includes enough detail “to enable those who did not
    participate in its preparation to understand and to consider meaningfully the
    issues raised by the proposed project.’ ” (King & Gardiner Farms, LLC v.
    County of Kern (2020) 
    45 Cal.App.5th 814
    , 869 (King).)
    The Port must “ ‘enable those who did not participate [in the
    preparation of the 2019 SEIR] to understand and consider meaningfully’ ”
    (King, supra, 45 Cal.App.5th at p. 869) the basis for the Port’s determination
    that it cannot quantify the effectiveness of the establishment of a fund for the
    purpose of paying for GHG-reducing projects approved by the Port of
    Los Angeles or for the purchasing of emission reduction credits. It is possible
    that the Port’s assertion is true and there is no reasonable way to quantify
    the potential effectiveness of the use of the GHG Fund for GHG-mitigating
    programs or the purchase of carbon emission reduction credits. But those
    relying on this document for making decisions regarding the Terminal have
    no way of assessing the truth of the Port’s assertion without more.
    Further, it is difficult to understand why the Port contends that it
    cannot quantify the effectiveness of an appropriately drawn measure
    regarding the use of fees to pay for carbon offsets. It appears clear that
    agencies may utilize carbon offsets to mitigate GHG emission impacts under
    CEQA, as long as the use of carbon offsets meets the standards for validity
    necessary to meet CEQA’s mitigation standards as those requirements are
    described in Golden Door, supra, 50 Cal.App.5th at page 562. “Generally
    speaking, CEQA permits mitigation measures for GHG emissions to include
    32
    offsite measures, including purchasing offsets,” where such measures
    incorporate procedures to ensure that the GHG reductions are quantified
    accurately. (Ibid.; see id. at p. 483 [“Our decision is not intended to be, and
    should not be[,] construed as blanket prohibition on using carbon offsets—
    even those originating outside of California—to mitigate GHG emissions
    under CEQA.”].)18 Certainly, there is nothing in CEQA that seems to
    prevent the use of fees intended to pay for off-project-site mitigation as a
    possible method of mitigating of environmental effects. The Guidelines
    indicate that mitigation may include “[c]ompensating for the [significant
    environmental] impact by replacing or providing substitute resources or
    environments . . . .” (Guidelines, § 15370, subd. (e).) The Guidelines also
    permit off-site mitigation of GHG emissions so long as the measures are
    18     As discussed in Golden Door, the use of certain procedures—or
    protocols—is what ensures that offsets represent true reductions in GHG
    emissions. “The State Air Resources Board (CARB) is ‘the state agency
    charged with monitoring and regulating sources of emissions of greenhouse
    gases that cause global warming in order to reduce emissions of greenhouse
    gases.’ (Health & Saf. Code, § 38510.) CARB has pursued several strategies
    for reducing GHG emissions, including a cap-and-trade program. (Cal. Code
    Regs., tit. 17, §§ 95801–96022; Association of Irritated Residents v. State Air
    Resources Bd. (2012) 
    206 Cal.App.4th 1487
    , 1498, fn. 6.)” (Golden Door,
    supra, 50 Cal.App.5th at p. 484, fn. omitted.) “Under cap-and-trade, an offset
    project must use a CARB-approved [protocol] (CARB Protocol). [Citation.]”
    (Id. at p. 508.) “ ‘Protocols are the formalized procedures for accounting for
    credits that ensure the credits are an accurate and reliable representation of
    emission reductions that actually occurred.’ [Citation.] Protocols ‘ “qualify
    and quantify GHG destruction, ongoing GHG reductions or GHG removal
    enhancements achieved by an offset project. ” ’ [Citation.]” (Id. at pp. 507–
    508.) Thus, “CARB Protocols are designed to ‘ensure that the reductions are
    quantified accurately, represent real GHG emissions reduction, and are not
    double-counted within the system.’ ” (Id. at p. 508.)
    33
    supported by “substantial evidence and subject to monitoring or reporting.”
    (Guidelines, § 15126.4, subd. (c).) In addition, the assessment of a fee may
    constitute an appropriate form of mitigation, as long as it is linked to a
    specific mitigation plan or program designed to address a cumulative impact.
    (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001)
    
    87 Cal.App.4th 99
    , 139–140.)
    The ability to quantify the use of a fee-based measure for GHG
    emission reduction, even if offsite, appears to be supported by the fact that
    the Port utilized a method for calculating the amount that China Shipping
    would be required to pay that itself appears to quantify the carbon offsets
    that could be purchased through the fund. In other words, some
    “quantification” of mitigation appears to be involved in the Port’s
    determination of the amount it would require China Shipping to pay into the
    GHG Fund in the 2019 SEIR. The document explains:
    “The [LM GHG-1] fund contribution amount is established
    as follows: (i) the peak year of GHG operational emissions
    (2030), after application of mitigation, that exceed the
    established threshold for the Revised Project, estimated in
    the SEIR to be 129,336 metric tons CO2E, multiplied by (ii)
    the current (2019) market value of carbon credits
    established by CARB at $15.62 per metric ton CO2E. The
    payment for the first year shall be due within ninety (90)
    days of the Conclusive Determination of Validity Date, and
    the payment for each successive year shall be due on the
    anniversary of the Conclusive Determination of Validity
    Date. If LAHD is unable to establish the fund through an
    MOU with CARB within one year prior to when any year’s
    payment is due, the Tenant shall instead apply that year’s
    payment, using the same methodology described in parts (i)
    and (ii) above, to purchase emission reduction credits from
    a CARB approved GHG offset registry.”
    34
    As this describes, the Port decided that it would have China Shipping
    pay an amount that represents compensation for the excess GHG emissions
    over the significance threshold expected to be released into the environment
    as a result of the Terminal’s operations in the year 2030, with the result
    being that China Shipping is to pay into the fund the value of an amount
    equivalent to 128,041 metric tons of carbon emission reductions. This
    calculation, in and of itself, appears to quantify the emission reductions that
    could be obtained through the purchase of carbon offset credits that comply
    with CARB Protocols. As NRDC notes, by requiring China Shipping to pay
    $2 million into the GHG Fund, the 2019 SEIR effectively concedes that it is
    economically feasible for China Shipping to pay at least $2 million to address
    GHG emissions. If, as the 2019 SEIR indicates, the fund is to be used for
    projects that will “lessen the significant environmental effect” caused by GHG
    emissions at the Terminal and the Port has seemingly quantified an amount
    of GHG emissions that can be mitigated through purchasing offsets, it is
    unclear why the Port did not adopt the measure as an enforceable mitigation
    measure and Port has failed to adequately explain its decision.
    In sum, the 2019 SEIR does not provide sufficient detail to enable “ ‘the
    public to discern from [it] the “analytic route the . . . [Port] traveled from
    evidence to action” ’ ” (California Oak Foundation, supra, 188 Cal.App.4th at
    p. 262) with respect to LM GHG-1, and as a result, the Port abused its
    discretion under CEQA in this regard.
    iii.   Independent monitor for mitigation measure
    compliance
    Appellants contend that the Port “improperly ignored requests to
    appoint an independent third party to monitor compliance with mitigation
    measures.” (Boldface omitted.) According to appellants, the Port “did not
    35
    respond adequately to Community Petitioners’ request” that it appoint an
    independent party to oversee a more robust monitoring and reporting
    program, but instead “tersely stated that the “ ‘comment is noted’ ” and that
    the “ ‘elements requested’ ” were not required under CEQA. Appellants
    assert that the Port’s “summary dismissal of the request for a third-party
    monitor in light of the Port’s history of noncompliance is not the ‘good faith,
    reasoned analysis’ that CEQA requires,” given that the Port “failed to set
    forth, in any detail, why Community Petitioners’ requests were rejected.”
    As with at least one other contention raised by appellants, the parties
    disagree as to the standard of review applicable to this particular appellate
    claim. Given that this issue does not involve the adoption or rejection of a
    mitigation measure, but, rather, is framed as a challenge to the Port’s
    response to comments made to a draft version of the environmental
    document, a brief discussion of the question of the appropriate standard is
    warranted. The Port asserts that any review of its response to comments to
    the draft in which parties suggested that the Port appoint an independent
    monitor to ensure compliance with the mitigation measures should be one to
    determine whether substantial evidence supports the Port’s response.
    Appellants, on the other hand, contend that the purported inadequacy of the
    Port’s response to this issue constitutes “a failure to ‘proceed[] in a manner
    required by law,’ ” and they contend that their claim should be reviewed for
    its legal sufficiency—i.e., de novo. We believe that Sierra Club, supra, 6
    Cal.5th at page 516, provides guidance as to this question: “The ultimate
    inquiry [for purposes of challenges to the adequacy of an EIR’s discussion], as
    case law and the CEQA Guidelines make clear, is whether the EIR includes
    enough detail ‘to enable those who did not participate in its preparation to
    understand and to consider meaningfully the issues raised by the proposed
    36
    project,’ ” and typically, this inquiry is a mixed question of law and fact
    subject to de novo review, unless factual questions predominate with respect
    to the issue raised and then the question is reviewed for substantial evidence.
    (Ibid.) Therefore, to the extent that appellants are challenging whether the
    response to a comment includes enough detail to allow one to understand and
    consider the issues, we review the claim de novo.
    The comment submitted by Community Petitioners that included a
    request for the appointment of an independent compliance monitor was as
    follows:
    “The management failures that led to the current China
    Shipping situation must never recur. Yet, the SDEIR
    appears to incorporate the same program that proved
    ineffective in monitoring and enforcing the 2008 mitigation
    measures.[ ] To ensure that mitigations are actually
    implemented and monitored for compliance, we recommend
    the following:
    “1. A full public accounting of why the lease with China
    Shipping was never amended to include the 2008 measures,
    and why waivers were granted from AMP. A full
    understanding of what led to the current predicament is
    essential to ensuring any future mitigation and monitoring
    program does not repeat past mistakes.
    “2. Ongoing public disclosure of the status of all mitigation
    measures for all past and present Port CEQA projects. A
    third party—agreeable to the Port and the community—
    should be selected to oversee this monitoring reporting
    process. The reporting plan should include, at a minimum:
    “• An assessment of mitigation compliance based on on-site
    visits, interviews, data from the drayage truck registry,
    and review of equipment and vehicle inventories.
    “• Throughput tracking to determine if actual throughput
    exceeds the projections in previously certified EIRs. In
    37
    years when throughput exceeds projections, an
    assessment of excess emissions attributable to that
    throughput should be performed, as well as a plan to
    deal with those excess emissions.
    “• Ongoing assessment and implementation of cleaner
    technologies and practices that can be implemented at
    the terminals.
    “3. Creation of a permanent and independent oversight
    committee, funded to conduct audits of the implementation
    of all committed mitigation measures, port-wide. The
    committee could be modeled after the disbanded Port
    Community Advisory Committee (PCAC). The committee’s
    work should be coordinated with the work of the third-
    party monitor.” (Italics added, footnote omitted.)
    In response to this particular comment, the 2019 SEIR stated, in
    relevant part:
    “This is not a comment on the adequacy of the Recirculated
    DSEIR. As described in more detail in Response to
    Comment CSPNC-1, none of the elements requested—a
    discussion of the past, disclosure of the mitigation status of
    other projects, or formation of a committee to oversee port-
    wide compliance—is either within the scope of this SEIR or
    required by CEQA. Please note, however, that sections
    1.2.3 and 1.2.4 of the Recirculated DSEIR already describe
    in adequate detail the background of the Revised Project,
    including the status of the lease with China Shipping and
    the reasons why some mitigation measures were not
    complied with.
    “Per CEQA, LAHD will adopt a mitigation monitoring and
    reporting program designed to ensure compliance with
    mitigation measures during the implementation of the
    Revised Project. CEQA does not mandate specific
    requirements for the program, but rather provides
    substantial flexibility to lead agencies, such as LAHD, to
    adopt monitoring and reporting programs and tailor them
    to specific projects. There is no requirement under CEQA
    38
    that LAHD must provide a full public accounting of past
    activities at the Project site, disclosure the mitigation and
    monitoring status of other projects or form a committee to
    oversee Port-wide compliance. Nonetheless, for non-CEQA
    purposes, the comment is noted and is hereby part of the
    Final SEIR, and is therefore before the decision-makers for
    their consideration prior to taking any action on the
    Revised Project.”
    The requirement that an agency respond to “comments” to a draft EIR
    derives not from a particular statutory provision of CEQA, but, rather, from
    section 15088 of the Guidelines. (City of Irvine v. County of Orange (2015)
    
    238 Cal.App.4th 526
    , 548 (City of Irvine).) Subdivision (a) of Guidelines
    section 15088 itself merely requires that the agency “evaluate comments on
    environmental issues received from persons who reviewed the draft EIR
    and . . . prepare a written response” when the comments are received during
    the noticed comment period. However, there is a more specific mandate in
    subdivision (c) that requires an agency to respond in good faith and with
    reasoned analysis only to “significant environmental issues” raised in
    comments whenever the agency's position is “at variance” with the comment
    about the “significant” environmental issue. (Guidelines, § 15088, subd. (c),
    italics added.)19 Thus, “[w]hen a comment raises a ‘significant’
    19    The full text of section 15088, subdivision (c) of the Guidelines is as
    follows:
    “The written response shall describe the disposition of
    significant environmental issues raised (e.g., revisions to
    the proposed project to mitigate anticipated impacts or
    objections). In particular, the major environmental issues
    raised when the lead agency's position is at variance with
    recommendations and objections raised in the comments
    must be addressed in detail giving reasons why specific
    comments and suggestions were not accepted. There must
    39
    environmental issue, there must be some genuine confrontation with the
    issue; it can't be swept under the rug [citation]. Responses that leave big gaps
    in the analysis of environmental impacts (such as missing entirely the
    existence of adjacent wetlands) are obviously inadequate [citation]. By the
    same token, comments that bring some new issue to the table need genuine
    confrontation [citation]. And comments that are only objections to the merits
    of the project itself may be addressed with cursory responses [citation].” (City
    of Irvine, at p. 553.)
    In this case, the Port’s response conveyed the legal basis for its
    rejection of the suggestion of the appointment of an independent monitor.
    CEQA requires that an agency adopt a program for either “reporting or
    monitoring” mitigation compliance. (§ 21081.6; Guidelines, §15097,
    subd. (a).) An agency has discretion in choosing a compliance program,
    however. (Guidelines, § 15097, subd. (c) [providing that agency “may choose
    whether its program will monitor mitigation, report on mitigation, or both”].)
    Further, while an agency also has discretion as to whether to delegate its
    “reporting or monitoring responsibilities to another public agency or to a
    private entity,” there is no requirement that it do so, and the Guidelines
    ensure that even if such a delegation is made, the agency “remains
    responsible for ensuring that implementation of the mitigation measures
    be good faith, reasoned analysis in response. Conclusory
    statements unsupported by factual information will not
    suffice. The level of detail contained in the response,
    however, may correspond to the level of detail provided in
    the comment (i.e., responses to general comments may be
    general). A general response may be appropriate when a
    comment does not contain or specifically refer to readily
    available information, or does not explain the relevance of
    evidence submitted with the comment.”
    40
    occurs in accordance with the [monitoring program].” (Guidelines, § 15097,
    subd. (a).) Thus, the Port’s response, in which it indicated that it was not
    required to delegate its monitoring or reporting program, accurately reflected
    the law. In addition, the Port’s response correctly identified a major problem
    with the request for an independent monitor, in that the comment requested
    that a monitor be appointed to “oversee” the “monitoring reporting process”
    for “all mitigation measures for all past and present Port CEQA projects.”
    (Italics added.) The 2019 SEIR, however, as noted in the Port’s response to
    this comment, involved consideration of the China Shipping Terminal at the
    Port—it is not a Port-wide environmental document. The Port sufficiently
    explained that a request to appoint an independent monitor to assess
    compliance with Port-wide projects was beyond the scope of the 2019 SEIR.
    Further, there is nothing in CEQA or the Guidelines that required more than
    what the Port provided in its response to the request for appointment of a
    third-party monitor. Again, the Guidelines require an agency to provide
    reasoned analysis only in response to “significant environmental issues”
    raised in comments whenever the agency's position is “at variance” with the
    comment about the “significant” environmental issue. (Guidelines, § 15088,
    subd. (c).) A request for a particular compliance program—or, more
    particularly, for the appointment of a monitor for a particular compliance
    program—does not itself raise a concern about a “significant environmental
    issue,” but instead is a comment on the process of addressing the significant
    environmental issues addressed in the environmental document. The Port’s
    response was sufficient with respect to this matter.
    Although appellants have framed their argument as one taking issue
    with the Port “not respond[ing] adequately to Community Petitioners’
    request” for an independent compliance monitor, we note that certain aspects
    41
    of the argument appear to suggest that appellants’ true problem with the
    Port’s response is, in fact, that the Port rejected the suggestion of an
    independent compliance monitor and instead chose to monitor compliance
    itself.20 To the extent that appellants’ challenge is not to the adequacy of the
    Port’s response to the comment, but is instead an assertion that the Port
    should have appointed an independent monitor to ensure compliance with the
    mitigation measures, such a challenge must be evaluated differently by a
    court reviewing an agency’s action. The adequacy of a mitigation monitoring
    or reporting program “is evaluated according to the ‘ “rule of reason,” ’ which
    is deemed satisfied if the program is ‘ “reasonably feasible.” ’ ” (Tiburon Open
    Space Committee v. County of Marin (2022) 
    78 Cal.App.5th 700
    , 773, quoting
    Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 
    155 Cal.App.4th 425
    , 446; see Rio Vista Farm Bureau Center v. County of Solano (1992) 
    5 Cal.App.4th 351
    , 380.) Here, there is nothing intrinsically infeasible about
    the Port retaining authority over any monitoring and/or reporting program
    for purposes of ensuring compliance with the adopted mitigation measures.
    In fact, while the Guidelines permit an agency to delegate reporting or
    monitoring responsibilities to a third-party, the presumption is that the
    agency will be responsible for any reporting or monitoring program.
    Although the Port’s history with respect to mitigation of the significant
    environmental effects caused by the operation of the Terminal has left
    appellants concerned—with good reason—about the Port’s commitment to
    ensuring mitigation compliance in the future, the Port’s decision not to
    delegate compliance monitoring to an independent party and to instead
    20   For example, Community Petitioners contend that “[t]he history here
    demonstrates a serious risk that mitigation will, once more, languish
    unenforced” in the absence of a third-party monitor.
    42
    retain jurisdiction over compliance monitoring is an option contemplated by
    CEQA and the Guidelines and is not itself unreasonable.
    iv.   The Port’s decision to delete as infeasible the drayage
    truck fleet mitigation measure requiring an increasing
    percentage of trucks to utilize LNG and the Port’s
    failure to adopt an alternative mitigation for the
    reducing emissions from the use of drayage trucks
    The 2008 EIR included mitigation measure MM AQ-20, which provided
    for a phased-in requirement that the Terminal gradually limit access to
    diesel-fueled drayage trucks while gradually increase access to LNG-fueled
    drayage trucks instead.21 Specifically, the mitigation measure required that
    (a) in 2012 and 2013, 50 percent of drayage trucks granted access to the
    Terminal would be LNG fueled; (b) in 2014 through 2017, 70 percent of
    drayage trucks granted access would be LNG fueled; and (c) by 2018, 100
    percent of the drayage truck fleet servicing the Terminal would be LNG
    fueled. MM AQ-20 required China Shipping to make gate modifications to
    ensure that the required percentages of LNG-fueled drayage trucks were
    accessing the Terminal, and placed “responsib[ility] for the trucks” on the
    Port. As with all of the mitigation measures in the 2008 EIR, however, MM
    AQ-20 was never made enforceable; as a result, MM AQ-20 was only ever
    partially implemented.22
    21    “Drayage” is the term used to describe that portion of the movement of
    containerized goods into and out of ports by way of public streets and
    highways.
    22    China Shipping never made any gate modifications at the Terminal,
    and the Terminal never reached the percentages for LNG fueled drayage
    trucks required by MM AQ-20. For example, in 2014, only 6 percent of the
    drayage trucks entering the Terminal were LNG fueled.
    43
    In the 2019 SEIR, the Port concluded that MM AQ-20 was infeasible
    and eliminated it. The Port further concluded that there was “no feasible
    substitute or replacement measure for requiring a terminal-specific drayage
    truck fleet.”
    On appeal, SCAQMD makes two arguments in connection with the
    Port’s treatment of mitigation with respect to the use of drayage trucks at the
    Terminal. SCAQMD contends that the Port’s determination that MM AQ-20
    is infeasible is not supported by substantial evidence. SCAQMD further
    asserts that the Port’s determination that it could not adopt an alternative
    mitigation measure requiring the use of other zero- or near-zero-emission
    truck technology for the drayage fleet servicing the Terminal was an abuse of
    the Port’s discretion because the Port “employed an unlawfully narrow
    interpretation of the statutory term ‘feasible,’ and failed to support its
    feasibility determination with substantial evidence.”
    A.     Deletion of MM AQ-20
    SCAQMD contends that the Port’s decision to delete MM AQ-20 is not
    supported by substantial evidence in the record. SCAQMD cites to the fact
    that MM AQ-20 places responsibility for the LNG-fueled trucks on the Port,
    as opposed to China Shipping, to argue that the Port’s reasons for
    eliminating the mitigation measure are not supported by the record.
    SCAQMD also generally attacks the Port’s reasoning and the evidence to
    support its decision to eliminate MM AQ-20.
    After an EIR has been adopted, a mitigation measure may be modified
    or eliminated if it has been “found to be impractical or unworkable.” (Lincoln
    Place Tenants Assn. v. City of Los Angeles (2005) 
    130 Cal.App.4th 1491
    , 1509
    (Lincoln Place).) “[A] previously adopted mitigation measure cannot be
    deleted ‘without a showing that it is infeasible.’ ” (Ibid., quoting Napa
    44
    Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 
    91 Cal.App.4th 342
    , 359 (Napa Citizens).) “[B]ecause an initial determination”
    regarding the feasibility of a mitigation measure “must be included in the
    EIR and supported by substantial evidence[,] it is logical to require a later
    determination a mitigation measure is infeasible be included in a
    supplemental EIR and supported by substantial evidence.” (Lincoln Place, at
    p. 1509, fns. omitted.)
    In April 2017, Ramboll Environ prepared for the Port a “Final Report”
    titled “Assessment of the Feasibility of Requiring Alternative-Technology
    Drayage Trucks at Individual Container Terminals” (the Ramboll Report)
    This report, which was prepared “with the help of Dr. John Husing, an
    economist specializing in the economy of Southern California,” analyzed the
    drayage activities at the Ports of Los Angeles and Long Beach, and sought to
    “assess[ ] the feasibility of requiring individual marine container terminals to
    ensure that only certain types of drayage trucks, namely those fueled by non-
    diesel fuels, haul containers in and out of the terminals.”
    The Ramboll Report noted that in order to implement an alternative-
    fuel-only requirement on the drayage operations at single terminal at the
    Port, the terminal would have to either “[c]ontract with one or more trucking
    firms to dedicate LNG/zero-emissions trucks to that terminal
    (notwithstanding that terminals are not involved in the drayage of container
    business),” “[f]orm its own drayage operation to offer such service to shipping
    lines and beneficial cargo owners,” or “[t]urn away all non-LNG or non-zero-
    emissions trucks at the terminal gates.” The Ramboll Report ultimately
    concluded that “the structure of the goods movement industry and the
    economics of LNG/zero-emission equipment versus diesel equipment renders
    each of these approaches infeasible.” Specifically, the Ramboll Report
    45
    determined that a terminal-specific mitigation measure requiring LNG-fuel
    or other zero-emissions drayage trucks was infeasible due to
    “incompatib[ility] with the structure of the drayage industry,” technical
    limitations with LNG truck capabilities, and commercial impracticality due
    to the competitive disadvantage such a measure would cause to a single
    terminal in the face of other terminals not having such a requirement. The
    2019 SEIR relied on the Ramboll Report’s analysis and conclusions in making
    a finding that MM AQ-20 is infeasible. The analysis and opinions provided in
    the Ramboll Report are precisely the type of evidence on which an agency
    may rely in making necessary findings under CEQA. (See Guidelines,
    § 15384, subd. (b) [“Substantial evidence shall include facts, reasonable
    assumptions predicated upon facts, and expert opinion supported by facts.”].)
    SCAQMD seems to suggest that MM AQ-20 required that the Port
    somehow subsidize or “bear[ ] full responsibility for funding [LNG] trucks,”
    and that, as such, the measure should not have been eliminated because the
    Ramboll Report “did not assess [the] economic feasibility” of the Port paying
    for new LNG-fueled drayage trucks to be used at the Terminal or “even of the
    Terminal bearing ultimate financial responsibility with the Port maintaining
    economic support for such trucks through subsidies or other incentives.”
    However, the mitigation measure at issue here was a terminal-specific
    mitigation measure, and the Ramboll Report concluded that no individual
    terminal could meet the 100 percent LNG-fueled truck requirement without
    industry-wide changes. Because the Ramboll Report’s analysis demonstrated
    that terminal-specific drayage truck mandates are infeasible for operational,
    technological and economic reasons, the Ramboll Report supports the Port’s
    conclusion that retaining a terminal-specific LNG drayage truck mitigation
    46
    measure, regardless of who is required to implement the measure, is
    infeasible.
    B.    Failure to adopt an alternative mitigation
    measure for reducing drayage truck fleet
    emissions at the Terminal
    SCAQMD also complains that the Port’s failure to replace the
    eliminated MM AQ-20 with an alternative to mitigate the emissions from
    drayage activities at the Terminal violates CEQA. According to SCAQMD,
    although it has become clear that LNG-fueled drayage truck technology has
    not advanced as anticipated when the 2008 EIR was prepared, new zero- or
    near-zero-emission truck technology has become increasingly commercialized
    and has been the subject of more demonstration projects at the Port.
    SCAQMD contends that in concluding that “there was ‘no feasible substitute
    or replacement measure’ for mitigation of any air emissions from drayage
    trucks,” the Port “employed an unlawfully narrow interpretation of the
    statutory term ‘feasible,’ and failed to support its feasibility determination
    with substantial evidence.” We disagree.
    As an initial matter SCAQMD’s argument with respect to the lack of a
    replacement mitigation measure for drayage fleet emissions fails to
    acknowledge that the 2019 SEIR was considering whether it was feasible to
    impose a mitigation measure regarding drayage trucks that would be
    applicable only to drayage trucks utilized at the Terminal. The Ramboll
    Report analyzed the feasibility of imposing a terminal-specific mitigation
    measure requiring the use of various possible alternative zero- and/or near-
    zero-emission technology and concluded that such a measure would be
    infeasible. Again, the analysis demonstrated that any ability to mitigate
    emissions from the drayage truck fleet used at the Port would require a Port-
    wide (and, possibly, industry-wide) solution—not a single terminal attempt at
    47
    limiting the types of drayage trucks that may be used at that terminal. The
    Ramboll Report explained that any attempt to impose such mitigation in
    connection with a single terminal would be infeasible.
    SCAQMD nevertheless contends that the Port “expressly declined to
    even evaluate any technology that was not already in widespread commercial
    deployment,” and therefore “effectively defined feasible as ‘capable of being
    accomplished successfully immediately,’ rather than ‘capable of being
    accomplished within a reasonable period of time.’ ” As previously discussed,
    CEQA defines the term “feasible” as “capable of being accomplished in a
    successful manner within a reasonable period of time, taking into account
    economic, environmental, social, and technological factors.” (§ 21061.1;
    Guidelines, § 15364.) No further explanation of what is meant by “within a
    reasonable period of time” is provided in CEQA or the Guidelines. SCAQMD
    argues that in order to give the phrase “reasonable period of time” meaning,
    “feasible must be forward-looking and the lead agency must allow time for
    full implementation of the mitigation.” SCAQMD further contends that a
    “reasonable period of time” must include consideration of the length of time
    over which a project is undertaken, and that since the project at issue here
    involves a 40-year operational lease, the implementation time for any
    mitigation need only be “successfully accomplished over some duration of the
    project’s operation time.” We do not disagree with SCAQMD’s suggestion
    that the phrase “within a reasonable period of time” should be considered in
    the context of the timeline for a project overall, but we do not view the Port’s
    decisionmaking with respect to declining to impose an alternative drayage
    truck mitigation measure to MM AQ-20 as constituting the failure to consider
    the context or timing of this project, as a whole.
    48
    The 2019 SEIR specifically responded to comments regarding concerns
    about drayage truck emissions, and in so doing noted that multiple
    demonstration projects involving “the development and testing of zero- and
    near-zero-emissions drayage trucks” had been undertaken and/or were
    continuing at the time the 2019 SEIR was adopted. For example, one such
    project, referred to as the “Zero Emissions Cargo Transport Project (ZECT
    II),” was a “follow-up” to a prior similar project, and involved the
    development and assembly of “six fuel-cell/battery-electric hybrids and one
    natural gas/battery-electric hybrid” for testing “for drayage service.”
    However, “[a]s of late 2018, none of the units had entered revenue service in
    their planned demonstration tests pending completion of development and
    resolution of a number of design and fabrication issues,” and “[o]ne model
    entered an in-service demonstration deployment in 2018 that revealed a
    number of operational and technical flaws.” The 2019 SEIR also referred to a
    different pilot project, called the “Large-Scale Zero Emission Truck
    Deployment Pilot Project,” pursuant to which the Ports of Los Angeles and
    Long Beach were “preparing a scope of work for demonstrating a large-scale
    (50-100 units) deployment of zero-emission drayage trucks in field operation”
    and were “currently [as of 2019] assembling trucking and truck
    manufacturing partners.” The 2019 SEIR identified no less than seven
    additional projects or programs being undertaken to develop and test zero- or
    near-zero emission drayage technology.
    After reviewing these projects and programs, the 2019 SEIR referred to
    a recent evaluation of the status of zero- and near-zero-emission drayage
    truck technology completed in 2019 by Tetra Tech/GNA pursuant to a
    requirement of the 2017 CAAP (the Tetra Tech Study or Study). The Tetra
    Tech Study evaluated the commercial availability, technical viability,
    49
    operational feasibility, and availability of fuel and infrastructure to support
    alternative technologies, as well as the economic workability of alternative
    technologies. The Study determined that, as of late-2018, a zero-emission
    battery-electric and several near-zero-emission natural gas fueled Class 8
    truck models were commercially available from original equipment
    manufacturers. Other alternatives, such as zero-emission fuel cell, near-zero-
    emission hybrid electric, and near-zero-emission diesel, had no commercial
    availability and “did not appear to be likely to be available by 2021.” As to
    the limited battery-electric and natural gas fueled truck options that are
    commercially available, however, the Study found that the battery-electric
    technology “is promising but still faces challenges and constraints,” such as
    their weight, which limits the weight of cargo that can be hauled, the time
    needed for charging, their short range capabilities, as well as the fact that
    there was only a single original equipment manufacturer “supporting these
    trucks,” and “very limited charging infrastructure in place.”
    The 2019 SEIR notes that the “current generation of natural-gas-
    powered near-zero-emission trucks . . . do not appear to pose serious
    operational feasibility challenges to widespread deployment,” however, the
    “major challenge . . . identified was the need for natural gas fueling
    infrastructure to expand regionally fast enough to support large-scale
    deployment.” (Italics added.) This concern highlights the importance of
    industry-wide changes to the successful implementation of alternative fuel
    drayage technology. Because, however, the “Clean Trucks Program strategy
    outlined in the 2017 CAAP[, which is a Port-wide strategy to phase out high
    emission trucks serving Port terminals,] recognizes that near-zero-emission
    technology for drayage trucks has matured to the point of commercial
    feasibility,” starting in 2020, “only near-zero-emission trucks will receive a fee
    50
    exemption for entering Port terminals, and starting in 2023, all new entries
    to the Port Drayage Truck Registry must meet or exceed the near-zero-
    emission standard.” (Italics added.) The Port noted that the “effect of this
    policy” at the Terminal as well as all other terminals at the Port “will be to
    increase the proportion of near-zero- and zero-emission trucks that pass
    through the terminals’ gates over time.” However, the 2017 CAAP also
    determined that “most near-zero and zero-emission technologies may take
    several years to become commercialized and feasible for drayage,” while the
    2019 Tetra Tech Study “concluded that considerably more progress needs to
    be made in order to bring zero-emissions technology into widespread use in
    drayage industry.” As a result, it was “too early to mandate specific
    requirements for zero-emission technology in the drayage fleet, but it is
    appropriate to modify the truck rate such that by 2035 only zero-emission
    trucks will receive fee exemptions” on a Port-wide basis.
    The Port’s consideration of alternatives to diesel fueled drayage trucks
    in the 2019 SEIR thus did not effectively apply an “immediacy” requirement
    for determining whether a drayage truck emissions mitigation measure for
    the Terminal would be feasible, but instead considered the current status of
    the drayage trucking industry as a whole with respect to alternatives to
    diesel, as well and the time frame over which the necessary significant
    changes to that industry might be able to occur given a variety of
    technological, operational, and economic considerations, and particularly in
    light of the fact that any mitigation in the 2019 SEIR would necessarily be
    Terminal-specific. This is what CEQA requires (see § 21061.1 [feasible
    means “capable of being accomplished in a successful manner within a
    reasonable period of time, taking into account economic, environmental,
    social, and technological factors”]), and we see no abuse of the Port’s
    51
    discretion with respect to its decision that the imposition of a Terminal-
    specific mitigation measure regarding drayage truck emissions would not be
    capable of being accomplished successfully within a reasonable period of
    time. The Port is envisioning a multi-year time horizon for both near-zero
    and zero emissions technologies, and the 2019 SEIR appears to weigh a
    complex set of technological and economic factors, as well as an
    acknowledgement that any mitigation imposed solely at one terminal while
    not being similarly imposed with respect to other terminals, would place that
    terminal at an economic disadvantage, as described in the Ramboll Report.
    Further, the above evidence is sufficient to support the Port’s determination
    that there was no feasible alternative to MM AQ-20 for mitigating drayage
    truck emissions in connection with operation of the Terminal. It is
    particularly important to remember that in reviewing the sufficiency of an
    EIR, our “task is not to weigh conflicting evidence and determine who has the
    better argument when the dispute is whether adverse effects have been
    mitigated or could be better mitigated. [A reviewing court has] neither the
    resources nor scientific expertise to engage in such analysis, even if the
    statutorily prescribed standard of review permitted us to do so. Our limited
    function is consistent with the principle that ‘The purpose of CEQA is not to
    generate paper, but to compel government at all levels to make decisions with
    environmental consequences in mind.’ ” (Laurel Heights, supra, 47 Cal.3d at
    p. 393, quoting Bozung v. Local Agency Formation Com. (1975) 
    13 Cal.3d 263
    ,
    283.) Here, the 2019 SEIR properly informed decisionmakers about the air
    quality consequences of operating the Terminal with respect to the drayage
    activities at the Terminal and explained the reasons why a terminal-specific
    mitigation measure with respect to those activities was not feasible over a
    multi-year period, in compliance with CEQA’s requirements. (See Federation
    52
    of Hillside & Canyon Assns. v. City of Los Angeles (2004) 
    126 Cal.App.4th 1180
    , 1198 [“[A] public agency is not required to favor environmental
    protection over other considerations, but it must disclose and carefully
    consider the environmental consequences of its actions, mitigate adverse
    environmental effects if feasible, explain the reasons for its actions, and
    afford the public and other affected agencies an opportunity to participate
    meaningfully in the environmental review process.”].)
    v.     The Port’s decision to modify a 2008 EIR vessel speed
    reduction program mitigation measure
    SCAQMD challenges the Port’s decision to eliminate a mitigation
    measure in the 2008 EIR—MM AQ-10—that had required 100 percent
    compliance with the Port’s Vessel Speed Reduction Program (VSRP), and to
    instead impose a mitigation measure requiring only 95 percent compliance
    with the VSRP.
    MM AQ-10 as set out in the 2008 EIR required that by 2009, 100
    percent of all vessels calling at the Terminal would be required to comply
    with the Port’s VSRP. As introduced in 2001, the VSRP was a voluntary
    program created pursuant to a multi-party Memorandum of Understanding
    to encourage vessels calling at the Port to reduce their speeds within a
    certain radius of the Port to help reduce the pollutant emissions from those
    vessels.23 Beginning in 2005, the Port offered financial incentives to
    encourage shipping lines to reduce their vessel speeds to 12 knots within 20
    nautical miles (nm) of Point Fermin at the Port. In 2009, the Port expanded
    23    As explained in the 2017 CAAP, “[w]hen ships slow down, the load on
    the main engines decreases considerably as compared to operation at higher
    speeds.” As a result, “[o]peration at slower speed typically decreases the total
    energy required to move the ship through water,” and “[t]his energy
    reduction translates to less fuel burned and fewer emissions.”
    53
    the program to provide additional incentives to encourage ships to reduce
    speeds to 12 knots within 40 nm of the Port. The 2017 CAAP noted that the
    voluntary VSRP had been “extremely successful,” in that the ships reduced
    their speed in compliance with the program at a rate of 95 percent within the
    20 nm zone, and 90 percent within the 40 nm zone. The 2017 CAAP notes
    that both the Port of Los Angeles and the Port of San Pedro “continue to
    require vessel speed reduction within in 40 nm, where possible, through new
    or renewed leases, which provide another mechanism for ensuring
    compliance.”
    As adopted in the 2008 EIR, MM AQ-10 required that all vessels
    calling at the Terminal, without exception, would have to reduce their speeds
    to 12 knots within the 40 nm zone. In the 2019 SEIR, however, the Port
    determined that 100 percent compliance with the VSRP for ships calling at
    the Terminal was not feasible, and the Port therefore eliminated the 100
    percent compliance requirement, instead replacing it with a 95 percent
    compliance rate requirement and asserting that this level of compliance
    represents the “maximum feasible mitigation measures for . . . vessel speed
    reduction.”
    SCAQMD contends that the Port’s decision to weaken the 100 percent
    compliance rate for the VSRP in the 2008 version of MM AQ-10 and its
    decision to instead require only a 95 percent compliance rate are decisions
    that are not supported by substantial evidence. We find merit in SCAQMD’s
    contentions.
    Again, a previously adopted mitigation measure is presumed to be
    feasible, given “ ‘the presumption that the governing body adopted the
    mitigation measure in the first place only after due investigation and
    consideration.’ ” (Lincoln Place, supra, 130 Cal.App.4th at p. 1509; Napa
    54
    Citizens, 
    supra,
     91 Cal.App.4th at p. 359.) Therefore when an agency seeks
    to eliminate or modify the measure, the agency must provide a “legitimate
    reason” for the departure, and there must be substantial evidence to support
    its determination. (Lincoln Place, at p. 1509.) In support of its decision to
    delete the 100 percent VSRP compliance rate in MM AQ-10 and to adopt a 95
    percent compliance rate instead, the Port refers to the RDSEIR as evidence
    that the 100 percent compliance rate is operationally infeasible. However,
    the RDSEIR merely asserts, without reference to specific evidence, that “not
    all vessels will be able to comply with VSRP requirements” because of the
    “unavoidable practical need to increase speed for various reasons.” The
    RDSEIR states that noncompliance is “typically the result of pressure on
    vessel schedules caused by weather, port delays, and mechanical problems.”
    However, there is no data provided or citations to other types of evidence to
    support these assertions. For example, there is no citation to a report
    completed by experts, no reference to interviews with shipping line
    managers, and no reference to an actual incident in which weather, port
    delays, or mechanical problems were relied on by a shipping line to explain
    why a particular vessel could not feasibly comply with the voluntary VSRP
    while coming into the Port. Instead, the sole basis for the Port’s assertion
    that sometimes vessel noncompliance with the VSRP is “unavoidable”
    appears to be a claim asserted by China Shipping; in other words, the only
    other location in the RDSEIR that includes a reference to the asserted
    operational infeasibility of a 100 percent VSRP compliance rate is in a section
    outlining the “technical, operational, and practical problems” of measures
    included in the 2008 EIR about which China Shipping had complained to the
    Port. The RDSEIR states that “China Shipping informed LAHD, and LAHD
    confirmed, that it may not be feasible to achieve 100% VSRP for the 40-mile
    55
    radius, under the terms of MM AQ-10.” However, the document provides no
    explanation as to how the Port “confirmed” the lack of potential feasibility,
    nor is there any reference to actual data or evidence to support the claims
    made by China Shipping regarding the claimed operational infeasibility of
    full compliance with the VSRP. In other words, there is no reference to
    actual evidence to support the assertion that 100 percent compliance is
    infeasible; mere assertions, without substantiation, are insufficient to
    constitute substantial evidence under CEQA. (See Guidelines, § 15384,
    subds. (a), (b) [substantial evidence includes “facts, reasonable assumptions
    predicated upon facts, and expert opinion supported by facts,” but does not
    include “[a]rgument, speculation, unsubstantiated opinion or narrative,” or
    “clearly erroneous or inaccurate evidence” (italics added)].)24 Moreover, the
    language used by the Port regarding the assertion indicates only that it “may
    not be feasible to achieve” the 100% compliance—not that it is infeasible to
    achieve full compliance as contemplated by the 2008 EIR.
    The Port also contends that historical Port-wide data indicates that 100
    percent compliance with the VSRP is infeasible, and argues that this data
    provides substantial evidence to support the Port’s conclusion that a 95
    percent compliance rate constitutes the only feasible mitigation related to
    vessel speeds at the Port. For example, the Port asserts that 100%
    compliance with the VSRP has never occurred. The record does include data
    from the 2017 CAAP demonstrating that Port-wide “[p]articipation within
    the 20 nm zone is approximately 95%, and just under 90% within the 40 nm
    24    We do not intend to suggest that the infeasibility of 100 percent
    compliance with the VSRP could not be demonstrated. We are merely
    explaining that this record does not include substantial evidence to support
    such a conclusion.
    56
    [zone].”25 Indeed, the 2017 CAAP includes a “goal” of voluntary compliance
    at a rate of 95 percent for all vessels calling at the Port, and the Port suggests
    that this “goal” is substantial evidence of “what is feasible.” However, what
    this fails to acknowledge is that the 2017 CAAP and the Port-wide data is
    based on a voluntary vessel speed reduction program; the Port historically
    has not required compliance with the VSRP. Indeed, only recently has there
    been any attempt to implement compulsory vessel speed reduction through
    requirements placed into leases with other terminals at the Port pursuant to
    EIRs adopted for those terminal projects; the 2017 CAAP indicates that the
    Port will “continue to require vessel speed reduction within 40 nm, where
    possible, through new or renewed leases, which provide another mechanism
    for ensuring compliance.”26
    In briefing, the Port suggests that its finding that the 100% compliance
    rate as adopted in the 2008 EIR is infeasible is “supported by the 2017
    CAAP.” In other words, the Port relies on the 2017 CAAP to claim that 100
    percent compliance with the VSRP is infeasible. However, the citation to the
    2017 CAAP offered by the Port merely discusses the success of the voluntary
    VSRP program and states that the Port will continue to try to ensure further
    compliance with the VSRP within the 40 nautical mile radius through new
    and renewed leases. In other words, the 2017 CAAP appears to envision a
    25    The 2017 CAAP does not provide the time period during which the
    voluntary VSRP compliance Port-wide was calculated to be 95 percent within
    20 nm and just under 90 percent within 40 nm.
    26    The 2019 SEIR indicates that a compulsory VSRP compliance rate of
    100 percent has been adopted and made enforceable in connection with the
    Port’s lease with at least one other terminal operator, although the Port
    contends that because such a measure “is a recent development[,] it is too
    early to conclude that it represents a feasible measure.”
    57
    goal of more compliance with the VSRP than has been obtained through the
    voluntary program by way of additional requirements, imposed through
    terminal leases, which in turn are guided by requirements for mitigation in
    terminal project EIRs. This is further supported by a statement in a 2017
    report created by the Port providing updates regarding its voluntary VSRP.
    In that document, the Port states that it “continues to push for 100%
    participation in the VSR program” and is using its financial incentives to
    encourage such participation.
    Further, the Port itself recognized that the design of the financial
    incentives intended to encourage voluntary compliance with the VSRP likely
    failed to encourage as much voluntary participation in the program as was
    possible. Specifically, the Port noted in the RDSEIR that “[o]ne element of
    the revised [VSRP] that is being considered is to convert the incentive
    payment from being based on the fleet-wide average compliance rate to a per-
    vessel-call basis.” Such a change “could encourage participation on an
    individual call basis for shipping lines that would not otherwise participate in
    the 40 nm program today because they are unable to meet the [annual]
    minimum to qualify” for the incentive. In other words, because of the
    structure of the incentive being provided on a per shipping line basis, rather
    than on an individual vessel basis, some vessels that might have otherwise
    sought a financial incentive through voluntary compliance with the VSPR
    may have decided not to comply with the voluntary program because their
    shipping line was no longer in contention to receive a financial incentive for
    that year.
    Thus, even when one considers the historical data, the voluntary VSRP
    compliance rates do not necessarily provide information as to what rates of
    compliance might be obtained through compulsory speed reduction. At a
    58
    minimum, there is no analysis referred to or provided by the Port to suggest
    that the rates of compliance in a voluntary program provide the ceiling for
    compliance rates of a compulsory requirement. Further, even the data
    regarding the voluntary program indicates that 95 percent compliance does
    not represent all feasible vessel speed emission mitigation. The record shows
    that in 2014, for example, the China Shipping Terminal obtained a 99
    percent compliance rate within the 20 nm zone, and a 96 percent compliance
    rate within the 40 nm zone, under the voluntary VSRP. In 2015, the
    Terminal’s compliance rates were 99 percent within the 20 nm zone, and 98
    percent within the 40 nm zone, and in 2016, the Terminal saw 100 percent
    compliance within 20 nm, and 96% within 40 nm. Although the voluntary
    VSRP compliance numbers dropped in 2017 to 96 percent within 20 nm and
    91 percent within 40 nm, in 2018 they again rose to 99 percent within 20 nm
    and 95 percent within 40 nm. As the Port acknowledged in response to
    SCAQMD’s comments to the RDSEIR, “the high compliance rates in the
    VSRP data cited by the comment show [that] shipping lines calling at the
    [China Shipping] Terminal have approached 98% compliance at the 40 nm
    limit.” Thus, the compliance rates obtained at the Terminal through the
    Port’s voluntary VSRP indicate that the Port’s selected 95 percent compliance
    rate does not represent the extent of feasible mitigation, since the Terminal
    has seen greater than 95 percent voluntary compliance on an annual basis for
    multiple years. At a minimum, however, even if the Terminal’s average
    annual compliance under the voluntary program was no more than 95
    percent, there is no analysis to support the idea that this number represents
    the maximum compliance rate achievable through a compulsory program.
    The Port also cites to the 2017 CAAP to suggest that certain vessels
    may not want to comply with the VSRP because “a 12-knot vessel speed may
    59
    not be the optimal speed from an emissions perspective,” and that this is
    support for the modification of MM AQ-10 from 100 percent compliance to 95
    percent compliance. Although the idea that there may be vessels for which
    the 12-knot speed is not optimal for emission reductions could, in theory,
    support a decision to require less than 100 percent compliance with the
    12-knot vessel speed requirement of the VSRP, the record does not provide
    any indication as to how many shipping lines utilize such vessels, let alone
    how many of these vessels call at the Terminal. As a result, there is no
    evidentiary link between the existence of vessels for which the ideal vessel
    speed for emissions is something faster than 12 knots and the Port’s decision
    to reduce the required VSRP compliance rate at the Terminal from 100
    percent to 95 percent.
    It also appears from the 2019 SEIR that the Port seems to have
    concluded that the environmental effects of a reduction from 100 percent
    compliance to 95 percent compliance were “negligible,” and that this
    purportedly “negligible” effect also supported the Port’s conclusion that 95
    percent compliance was the maximum feasible mitigation possible through
    vessel speed reduction at the Terminal. The RDSEIR and the 2019 SEIR
    both state, “The 95% requirement at 40 nm is consistent with recent [Port]
    EIRs and with how shipping lines at terminals have been performing at [the
    Port]. It incorporates the realities of oceangoing cargo vessel operation and
    the need to maintain economic competitiveness. Furthermore, the actual
    effect on air quality and public health of requiring 95% rather than 100%
    would be negligible given the relatively small contribution of at-sea vessel
    emissions on health risk and the already-high level of compliance with the
    12-knot requirement.” (Italics added.) The RDSEIR (but not the 2019 SEIR)
    cites to “Table 2-4” in support of the claim that there was an “already-high
    60
    level of compliance with the 12-knot requirement,”27 but neither document
    cites to, identifies, or refers to any evidence supporting the Port’s assertion
    that the “actual effect on air quality and public health . . . would be
    negligible.”28 On appeal, the Port contends that SCAQMD “misstates” the
    record by contending in its opening brief that “a reduction of 5% compliance
    is alone enough to exceed the CEQA significance threshold for NOx in most
    years,” and cites to a page from an October 8, 2019 memorandum sent from
    Chris Cannon to the LAHC regarding the Port’s “Response to NRDC’s Letter
    on Final Supplemental Environmental Impact Report for [the Terminal]
    Project.” Setting aside the question whether this document provides evidence
    in the record to support the Port’s decisions in the 2019 SEIR, given that this
    document was created after the Port issued the 2019 SEIR and is dated the
    same date as the Board certified the 2019 SEIR and given that it does not
    appear to be incorporated into or cited by the 2019 SEIR, the relevant
    statement on that page of the record provides:
    “The Port stands by its statement that a 5% increase [sic]
    in VSRP compliance in a zone 20 to 40 nautical miles from
    shore (the zone in which the bulk of non-compliance
    currently takes place) would have a negligible impact on
    public health, given the inevitable dispersion and dilution
    of air pollutant over such a distance. The table below
    shows the difference in annual berthing emissions (tons per
    27    As included in the RDSEIR, Table 2-4 is a table demonstrating the
    VSRP compliance rates for all of the terminals at the Port in 2014; the table
    shows that in 2014, the China Shipping Terminal obtained compliance rates
    of 99 percent within the 20 nm zone and 96 percent within the 40 nm zone.
    28     In response to SCAQMD’s comments about the modification of MM AQ-
    10, the Port asserts in the 2019 SEIR that the RDSEIR “points out that the
    effects on public health and air quality of a non-compliance rate of 5% are
    negligible.” Nothing in this response includes evidence to support the claim,
    however.
    61
    year) between the Revised Project (requiring 95% AMP
    compliance) and the FEIR Mitigated Scenario (requiring
    100% AMP compliance), and also the difference between
    annual emissions in the VSRP zone (tons per year) between
    the Revised Project (requiring 95% VSRP compliance) and
    FEIR Mitigated Scenario (requiring 100% VSRP
    compliance). As shown in the table, the difference in
    emissions reductions that would result if it were feasible to
    implement mitigation requiring 100% compliance with
    AMP and VSRP is, in many instances, barely discernable,
    and is in no instance substantial.”
    The “table” referred to provides estimates of various pollutant
    emissions under the 95 percent VSRP compliance rate in the modified MM
    AQ-10 and compares them with the estimates of various pollutant emissions
    under the 100 percent VSRP compliance rate as required by the 2008 EIR.
    The referenced table, however, suggests that the Port’s assertions are
    unsupported. Specifically, with respect to NOx, one of two pollutants that
    create the secondary pollutant ozone, the 2019 SEIR used a CEQA
    significance threshold of 55 pounds per day, which is equivalent to
    approximately 10 tons per year. Under the 95 percent VSRP compliance
    measure, NOx emissions were estimated to be more than 10 tons greater per
    year than they would be under the 2008 EIR’s 100 percent VSRP compliance
    measure for multiple years for which estimates were provided. Thus, the
    Port’s own data demonstrates that at least as to one major pollutant, the
    reduction from a 100 percent compliance rate to a 95 percent compliance rate
    would be significant—not negligible. Further, while the Port asserts that the
    “dilution of air pollutants over” the 40 nm zone means that there would be a
    “negligible impact on public health,” yet again, there is no citation to evidence
    in the record to support this assertion. As already noted, substantial
    evidence includes “facts, reasonable assumptions predicated upon facts, and
    62
    expert opinion supported by facts.” (Guidelines, § 15384, subd. (b).) A claim
    made without citation to an authoritative source offers nothing more than an
    unsubstantiated assertion by the Port about purportedly “negligible” negative
    health effects. This is insufficient to support a conclusion that the reduction
    in the required mitigation will have “negligible” health effects, and thus is
    insufficient to support any further conclusion by the Port that its decision to
    modify a previously adopted 100 percent VSRP compliance rate mitigation
    measure down to 95 percent compliance represents the full extent of feasible
    mitigation in connection with the speed of vessels calling at the Terminal.
    We thus conclude that there is no clear rationale in the record
    demonstrating the how and why of the Port’s decision to modify MM AQ-10
    by reducing the required speed limit compliance from 100 percent to 95
    percent. The Port relies on no study, expert opinion, or other substantiation
    to support the 95 percent number. The data on which the Port relies involves
    a voluntary program, and such data does not support the conclusion that a 95
    percent compliance rate is the maximum vessel speed mitigation that is
    feasible; in fact, the data suggests that greater compliance has been obtained
    even in the absence of a compulsory vessel speed reduction program. Given
    the lack of substantial evidence to support its decision with respect to the
    VSPR, we conclude that the Port abused its discretion in modifying MM AQ-
    10—by reducing it from 100 percent compliance down to 95 percent
    compliance with the VSRP—in the 2019 SEIR.
    2.    Appellants’ challenge to the trial court’s decision with respect to
    the remedy to impose for the CEQA violations identified
    Appellants contend that the trial court erred in connection with its
    chosen approach to remedying the various CEQA violations it determined the
    Port committed in connection with the certification of the 2019 SEIR.
    63
    Specifically, they argue that while the court made findings that the Port had
    “committed a ‘profound’ violation of CEQA by failing to make any [of the 2019
    SEIR’s] mitigation measures enforceable,” the court nevertheless
    “perplexingly concluded that it could ‘only’ direct the Port to set aside the
    SEIR—and nothing more.” As appellants argue, the court’s selected remedy,
    which does not abate operations at the Terminal or place a strict timeline on
    the Port’s rectification of the CEQA violations in the 2019 SEIR, effectively
    “allows the Port to continue its illegal operation of the [T]erminal without
    enforceable mitigation measures” in place, and thereby fails to “redress the
    violation that court found” had occurred.
    According to appellants, the trial court legally erred in concluding that
    it lacked the authority to order the Port to correct its violations of CEQA
    under section 21168.9, CEQA’s remedy provision, and the court also abused
    its discretion in failing to weigh the equities of allowing the Terminal to
    continue to operate without any mitigation taking place.
    a.    Additional relevant background
    In addition to making findings regarding specific mitigation measures
    that the Port either modified from the 2008 EIR or adopted for the first time,
    the trial court specifically found that all of the mitigation measures on which
    the Port was relying in the 2019 SEIR were in violation of CEQA’s
    requirements because the Port failed to ensure that any of the mitigation
    measures were enforceable. The trial court in no uncertain terms expressed
    frustration with the Port’s failures—over a multi-year period—to ensure that
    actual mitigation takes place with respect to the significant environmental
    effects of operations at the Terminal. The trial court found, for example:
    “The critical assumption underlying the SEIR’s
    environmental analysis—i.e., that China Shipping would
    agree to amend its lease in 2019 to require mitigation—is
    64
    completely baseless. . . . [¶] . . . The Port has countenanced
    years of China Shipping’s breach of existing lease
    provisions and obdurate refusals to negotiate new permit
    conditions, all without taking any action against China
    Shipping in the form of contract remedies or termination.
    And the record is replete with examples supporting the
    conclusion that China Shipping has, time after time,
    stubbornly refused to agree to implement mitigation
    measures. [¶] Given this history, the court readily
    concludes the mitigation measures are not legally
    enforceable, and thus do not pass muster under CEQA.
    The record establishes it is not feasible to achieve
    mitigation through negotiations with China Shipping,
    because the only substantial evidence before the court is
    that China Shipping is an unwilling participant in
    negotiations. Thus, the Port’s position is exposed for what
    it is: a mere expression of hope, untethered to any realistic
    expectation that China Shipping will sublimate its desire
    for profitable port operations to the requirements of
    California law and the well-being of port workers and
    nearby residents.”
    The trial court noted that the Port did not include any binding
    instrument connected to project approvals that would allow it to enforce the
    proposed mitigation measures in the 2019 SEIR. The result is that the entire
    environmental document “was destined to be struck down by the courts.” The
    court rejected the Port’s suggestion that “this case presents ‘unusual
    circumstances’ ” because NRDC did not sue China Shipping, and responded
    that “the only ‘unusual circumstances’ present here are the Port’s repeated
    failures over many years to adopt a negotiating position with China Shipping
    which places compliance with California environmental law and the health of
    harbor workers and residents ahead of (or at least on equal footing with) its
    desire to appease its largest tenant.”
    Despite these findings, the trial court concluded that the “only” remedy
    it could impose to address the extensive CEQA violations committed by the
    65
    Port in connection with the 2019 SEIR was an order directing the Port to set
    aside the 2019 SEIR.29 The court stated, “The court may not direct the Port
    to carry out its obligations under CEQA in any particular way. Pub. Res.
    Code § 21168.9(c). Absent a consent decree, the court may only declare an
    earlier CEQA document invalid and order it set aside. The court has done so
    here.” The trial court ordered the City to set aside the August 2020
    certification of the 2019 SEIR, along with “other related project approvals,”
    made a writ returnable in 60 days, and declared that the court “retains
    jurisdiction under Pub. Res. Code section 21168.9(b).”
    b.    Standards of review applicable to challenges to a trial
    court’s determination of a remedy in a CEQA writ
    proceeding
    While one set of standards applies to questions involving appellate
    review of an agency’s actions, a different set of standards apply to appellate
    challenges to a trial court’s determination of the appropriate remedy to
    impose to address an agency’s CEQA violation(s).
    The parties disagree as to the standard of review applicable to
    appellants’ contention that the trial court erred with respect to the remedy it
    fashioned to address the Port’s CEQA violations. The Port contends that a
    “trial court’s decision regarding the scope of the writ” is to be reviewed “under
    an abuse of discretion standard,” and cites Golden Gate Land Holdings LLC
    v. East Bay Regional Park Dist. (2013) 
    215 Cal.App.4th 353
    , 368, and
    San Bernardino Valley Audubon Soc. v. Metropolitan Water Dist. of Southern
    California (2001) 
    89 Cal.App.4th 1097
    , 1107, in support of its position.
    Under this standard, the Port argues, in order to succeed on appeal,
    29    The court also rejected requests made by CARB and NRDC to provide
    additional briefing on the question of an appropriate remedy.
    66
    appellants must demonstrate that “the trial court’s remedy abuses the
    discretion afforded to it under CEQA.”
    In contrast, appellants argue that an appellate court reviews de novo a
    “trial court’s legal interpretation of its remedy powers under section 21168.9.”
    The parties are both correct—at least partially. A challenge to a trial
    court’s chosen writ remedy in a CEQA matter may implicate two questions.
    First, a challenge may question whether the court properly interpreted the
    authority granted under section 21168.9, as appellants’ first contention
    regarding the trial court’s remedy decision does here. An appellate court
    reviews a trial court's interpretation of section 21168.9 de novo. (Preserve
    Wild Santee v. City of Santee (2012) 
    210 Cal.App.4th 260
    , 287 (Preserve Wild
    Santee).) However, a challenge to a trial court’s chosen writ remedy may also
    implicate the question whether the trial court abused its discretion in
    applying section 21168.9 to the facts of a specific case by choosing a
    particular remedy. Appellants in this case also set out a challenge to the trial
    court’s chosen remedy, thereby implicating this second type of question.
    Where an appellant’s challenge is to the manner in which the trial court has
    chosen to exercise its remedial authority, an appellate court reviews the trial
    court's decision regarding the appropriate remedy for an abuse of discretion.
    (Ibid., citing Ho v. Hsieh (2010) 
    181 Cal.App.4th 337
    , 344–345.)
    c.    Application
    Appellants’ first argument is that the trial court simply
    miscomprehended its authority under section 21168.9 to fashion an
    appropriate remedy for the Port’s CEQA violations. This contention requires
    us to consider the meaning of that provision and determine whether the trial
    court properly interpreted it, which are questions we consider de novo. (See
    Preserve Wild Santee, supra, 210 Cal.App.4th at p. 287.)
    67
    In assessing the meaning of a statutory provision, “ ‘[w]e consider first
    the words of a statute, as the most reliable indicator of legislative intent.’
    [Citation.] In doing so, we give the words ‘their usual and ordinary meaning,’
    viewed in the context of the statute as a whole. [Citation.] As part of this
    process, ‘ “ ‘[every] statute should be construed with reference to the whole
    system of law of which it is a part so that all may be harmonized and have
    effect.’ ” ’ [Citation.]” (Union of Medical Marijuana Patients, Inc. v. City of
    San Diego (2019) 
    7 Cal.5th 1171
    , 1184.)
    Section 21168.9 provides a court with various avenues for addressing
    violations of CEQA, providing in full:
    “(a) If a court finds, as a result of a trial, hearing, or
    remand from an appellate court, that any determination,
    finding, or decision of a public agency has been made
    without compliance with this division, the court shall enter
    an order that includes one or more of the following:
    “(1) A mandate that the determination, finding, or decision
    be voided by the public agency, in whole or in part.
    “(2) If the court finds that a specific project activity or
    activities will prejudice the consideration or
    implementation of particular mitigation measures or
    alternatives to the project, a mandate that the public
    agency and any real parties in interest suspend any or all
    specific project activity or activities, pursuant to the
    determination, finding, or decision, that could result in an
    adverse change or alteration to the physical environment,
    until the public agency has taken any actions that may be
    necessary to bring the determination, finding, or decision
    into compliance with this division.
    “(3) A mandate that the public agency take specific action
    as may be necessary to bring the determination, finding, or
    decision into compliance with this division.
    68
    “(b) Any order pursuant to subdivision (a) shall include only
    those mandates which are necessary to achieve compliance
    with this division and only those specific project activities
    in noncompliance with this division. The order shall be
    made by the issuance of a peremptory writ of mandate
    specifying what action by the public agency is necessary to
    comply with this division. However, the order shall be
    limited to that portion of a determination, finding, or
    decision or the specific project activity or activities found to
    be in noncompliance only if a court finds that (1) the
    portion or specific project activity or activities are
    severable, (2) severance will not prejudice complete and full
    compliance with this division, and (3) the court has not
    found the remainder of the project to be in noncompliance
    with this division. The trial court shall retain jurisdiction
    over the public agency’s proceedings by way of a return to
    the peremptory writ until the court has determined that
    the public agency has complied with this division.
    “(c) Nothing in this section authorizes a court to direct any
    public agency to exercise its discretion in any particular
    way. Except as expressly provided in this section, nothing
    in this section is intended to limit the equitable powers of
    the court.” (§ 21168.9.)
    The Guidelines explain the trial court’s remedial options more plainly:
    “(a) Courts may fashion equitable remedies in CEQA
    litigation. If a court determines that a public agency has
    not complied with CEQA, and that noncompliance was a
    prejudicial abuse of discretion, the court shall issue a
    peremptory writ of mandate requiring the agency to do one
    or more of the following:
    69
    “(1) void the project approval, in whole or in part;
    “(2) suspend any project activities that preclude
    consideration and implementation of mitigation measures
    and alternatives necessary to comply with CEQA; or
    “(3) take specific action necessary to bring the agency’s
    consideration of the project into compliance with CEQA.”
    (Guidelines, § 15234, subd. (a).)
    In this case, the trial court correctly noted that the Port’s decision to
    exclude from the Revised Project’s approvals any binding instrument, such as
    an amendment to the Lease, that would permit the Port to enforce the
    mitigation included in the 2019 SEIR effectively undermined the validity of
    the entire 2019 SEIR. The court also correctly noted that mitigation “ ‘cannot
    be deferred past the start of the project activity that causes the adverse
    environmental impact,’ ” and highlighted that in this situation, the Port “has
    gone forward with . . . the continued operation of the Terminal—without
    implementing the mitigation measures [on which it relied in the 2019 SEIR]
    to combat emissions,” which “constitutes a profound violation of CEQA.”
    In response to this “profound” CEQA violation, however, the trial court
    ordered only that the Port set aside the 2019 SEIR and begin anew to certify
    a CEQA-compliant environmental document. The trial court’s statements
    regarding the scope of its authority to fashion a remedy demonstrate that the
    trial court incorrectly believed that its authority extended only so far as what
    is identified in subdivision (a)(1) of section 21168.9. The court specifically
    stated that “[a]bsent a consent decree, the court may only declare an earlier
    CEQA document invalid and order it set aside.” Nevertheless, the trial
    court’s remedy—ordering the Port to set aside the 2019 SEIR while still
    allowing the Port to continue to operate the Terminal pursuant to the Lease
    without any of the purportedly-adopted mitigation being enforced while the
    70
    Port prepares a new SEIR—permits the Port to violate CEQA without any
    real consequence. CEQA does not countenance such a result. Rather, a trial
    court may use one or a combination of three options for ensuring CEQA
    compliance and the protection of the physical environment from adverse
    changes or alterations due to project activities after a violation has been
    found: a trial court can void the agency’s action (§ 21168.9, subd. (a)(1)),
    suspend project activities (id., subd. (a)(2)), and/or direct the agency to
    undertake specific actions to bring its decision-making into compliance (id.,
    subd. (a)(3)). Thus, while it is true that under subdivision (a)(1) of section
    21168.9, the court may decide that an order mandating that an agency void
    its determination with respect to an environmental document is appropriate,
    there is nothing in section 21168.9 that provides that this is the only remedy
    available to the trial court. (See, POET, LLC v. State Air Resources Bd.
    (2013) 
    218 Cal.App.4th 681
    , 761 (POET); see also San Bernardino Valley
    Audubon Soc. v. Metropolitan Water Dist. of Southern California (2001) 
    89 Cal.App.4th 1097
    , 1102 (San Bernardino Valley) [section 21168.9 “provides
    alternative remedies which allow the trial court to tailor the remedy to fit the
    violation”].)
    Beyond this, subdivision (c) of section 21168.9 also makes clear that a
    trial court retains all of its traditional equitable powers to remedy violations
    of the law: “Except as expressly provided in this section, nothing in this
    section is intended to limit the equitable powers of the court.” The trial court
    seemingly believed that its equitable powers were limited, however, by the
    other sentence in subdivision (c) of section 21168.9, which provides
    clarification that a court may not “direct any public agency to exercise its
    discretion in any particular way.” This limitation does not bind a trial court
    in the way that the court believed. While an agency has discretion to
    71
    determine how to comply with CEQA and cannot be told how to do so in the
    first instance, an agency does not have discretion to decide whether to comply
    with CEQA; thus, an order directing an agency to comply with CEQA,
    including by ordering it to “take specific action as may be necessary to bring
    [its] determination, finding, or decision into compliance with [CEQA]”
    (§ 21168.9, subd. (a)(3)), is entirely within the court’s remedial authority.
    Indeed, ordering the Port to make enforceable the mitigation measures the
    Port has already determined are feasible measures does not require the Port
    to exercise its discretion in any particular manner. Rather, it simply directs
    the Port to comply with CEQA’s mandates.
    Further, section 21168.9 permits a court to consider whether the
    activities of the project that is the subject of an EIR or a negative declaration
    should continue while an agency takes actions necessary to comply with
    CEQA. “Under the current version of section 21168.9, subdivision (a), the
    trial court may allow a portion of the work to proceed while the agency is
    complying with CEQA. Under subdivision (a)(1), the trial court may void the
    action of the public agency in whole or in part. . . . Under subdivision (a)(2),
    the trial court may suspend specific project activity that may damage the
    environment until the agency has taken actions that are necessary to comply
    with CEQA.” (San Bernardino Valley, supra, 89 Cal.App.4th at p. 1105; see
    POET, supra, 218 Cal.App.4th at p. 760.) “Suspension of project activity is
    one of the three “mandates” available under subdivision (a) of section
    21168.9[,] and subpart (2) of that provision addresses when suspension is
    appropriate. First, suspension requires a finding ‘that a specific project
    activity or activities will prejudice the consideration or implementation of
    particular mitigation measures or alternatives to the project . . . .’ [Citation.]
    Second, the suspension appears to be limited to project activity ‘that could
    72
    result in an adverse change or alteration to the physical environment . . . .’
    [Citation.]” (POET, supra, at p. 761.)
    Thus, it seems apparent from this record that the trial court
    misapprehended the scope of its authority under section 21168.9, as the trial
    court did not consider subdivisions (a)(2) and (a)(3) in deciding the
    appropriate remedy to impose. Certainly, a “remedy” that permits Terminal
    operations to continue in the absence of the implementation and enforcement
    of any of the feasible mitigation measures identified by the Port—particularly
    those adopted in the 2008 EIR and readopted in the 2019 SEIR—for some
    unknown period of time while the Port undertakes action to create a CEQA-
    compliant environmental document that corrects the failures of the 2019
    SEIR is no real remedy at all, and seems to be at odds with one of the
    primary purposes of CEQA—i.e., the “[p]revent[ion of] significant, avoidable
    damage to the environment by requiring changes in projects through the use
    of alternatives or mitigation measures when . . . feasible.” (Regulations,
    § 15002, subd. (a)(3); see Laurel Heights, supra, 47 Cal.3d at p. 424 [“A
    primary purpose of CEQA is to protect the environment.”].)30 CEQA gives a
    trial court authority to fashion a remedy in the face of CEQA violations that
    supports, rather than undermines, CEQA’s environmental protection
    purpose. Given the trial court’s too-narrow understanding of its remedy
    30    We note, as well, that the Supreme Court has applied former section
    21168.9, which was substantially similar to the current version, to permit a
    court to impose a timeline for an agency to undertake the actions ordered as
    part of necessary CEQA compliance. (See Laurel Heights, supra, 47 Cal.3d at
    p. 428 [directing the court of appeal to order the trial court “to retain
    jurisdiction over this action and to specify promptly, after notice and hearing,
    a date by which the [agency] must certify a new EIR in accordance with
    CEQA standards and procedures, including provisions for public comment,
    and to make any findings that may be required by CEQA”].)
    73
    powers under section 21168.9, the matter must be remanded to permit the
    trial court to exercise its authority in a manner consistent with the full
    authority granted it pursuant to CEQA’s remedial statute.31
    We are remanding for the trial court to exercise its discretion to fashion
    an appropriate remedy in the first instance, and note that the trial court has
    available to it a range of remedial options under the Guidelines. For
    example, the court may decide that the Port’s prior conduct related to the
    Terminal warrants the setting of a strict timeline for the Port’s adoption of a
    new SEIR and the enforcement of the Lease to ensure compliance with
    mitigation measures. In addition, the court may order that shipping
    activities at the Terminal be suspended in the interim, unless specific
    mitigation measures duly adopted in the 2019 SEIR (or, where relevant, the
    2008 EIR measures reinstated by the court) are implemented. (See Preserve
    Wild Santee, supra, 210 Cal.App.4th at pp. 288–289 [Section 21168.9
    “expressly allows a court to mandate the suspension of any project activities
    that might adversely affect the environment and prejudice the consideration
    or implementation of mitigation measures or project alternatives until the
    public agency complies with CEQA.”].) China Shipping is obligated by the
    Lease’s terms to comply with the mitigation measures set forth in any duly-
    adopted environmental document, as the Lease requires China Shipping to
    “at all times, in its use and occupancy of the premises and in the conduct of
    its operations thereon, comply with all laws, statutes, ordinances, rules and
    31     Given our conclusion regarding the trial court’s error in failing to
    appreciate the breadth of the authority granted under section 21168.9 to
    determine the most appropriate remedy to actually address the CEQA
    violations identified in this case, we need not consider appellants’ alternative
    argument that the trial court abused its discretion in failing to weigh the
    equities of allowing the Terminal to continue to operate without any
    mitigation taking place.
    74
    regulations applicable thereto, enacted and adopted by federal, state,
    regional, municipal or other governmental bodies, or departments or offices
    thereof.” (Italics added.) As these options demonstrate, the trial court
    possesses “flexibility in fashioning remedies to ensure compliance with
    [CEQA]” (Farmland Protection Alliance v. County of Yolo (2021) 
    71 Cal.App.5th 300
    , 312), and it should exercise its discretion in a way that
    furthers CEQA’s purpose while ensuring that the Port complies with CEQA’s
    mandates.
    In sum, we conclude that four of appellants’ challenges to the 2019
    SEIR are without merit. Specifically, substantial evidence supports the
    Port’s decision to delete as infeasible the drayage truck fleet mitigation
    measure requiring drayage trucks calling at the Terminal to utilize LNG, as
    well as the Port’s decision not to adopt an alternative mitigation measure for
    reducing emissions for drayage trucks calling at the Terminal. Substantial
    evidence also supports the Port’s decision not to adopt a zero-emission
    demonstration project for cargo-moving equipment such as top handlers and
    large forklifts. Finally, the Port acted within its legal authority in deciding
    not to appoint an independent monitor to track mitigation compliance, and it
    sufficiently responded to the comment requesting appointment of an
    independent monitor.
    However, as to two other specific challenges to elements of the 2019
    SEIR, we conclude that the record is insufficient to support the Port’s
    decisions. First, we agree with appellants that the Port’s decision to modify
    the VSRP mitigation measure from 100 percent compliance to 95 percent
    compliance is not supported by substantial evidence. Further, we conclude
    that the Port has failed to adequately explain the basis for and support with
    75
    evidence its decision to make a GHG emissions fund measure a lease
    measure rather than a mitigation measure.
    Finally, we conclude that the trial court erred with respect to its
    interpretation and application of section 21168.9, and thus mistakenly
    limited its options for fashioning a remedy that reinforces CEQA’s
    environmental protection purposes.
    IV.
    DISPOSITION
    The judgment is reversed, and the case is remanded for the trial court
    to exercise its discretion to remedy the CEQA violations identified by the trial
    court, as well as those additional violations identified in this opinion, in light
    of the full scope of the remedial authority granted to it by section 21168.9.
    The parties are to bear their own costs on appeal.
    O'ROURKE, J.
    WE CONCUR:
    McCONNELL, P. J.
    KELETY, J.
    76
    

Document Info

Docket Number: D080902

Filed Date: 12/29/2023

Precedential Status: Non-Precedential

Modified Date: 12/30/2023