Legal Challenge to Amazon Air Hub in San Bernardino Denied by Federal Appeals Court

Nov. 24—An environmental challenge to the Federal Aviation Administration's 2019 approval of a new 660,000-square-foot sorting facility at San Bernardino International Airport has been rejected by the 9th U.S. Circuit Court of Appeals on a 2-1 vote.

Former State Attorney General Xavier Becerra and local environmental justice groups filed the federal lawsuit early last year, shortly after the FAA gave the logistics center at the former Norton Air Force Base its blessing.

Becerra and others alleged that throughout the project's approval process, the FAA, the San Bernardino International Airport Authority and master developer Hillwood Enterprises ignored significant health risks the massive air cargo logistics center would pose to the surrounding San Bernardino-Muscoy community.

The suit asked the federal appeals court to set aside the FAA's approval "as arbitrary and capricious, an abuse of discretion, and contrary to law."

Becerra called for a comprehensive environmental review of the project before a tenant began operations there.

With the matter still before the court, Amazon marked the opening of the $200 million Amazon Air Regional Air Hub in April.

The sorting facility west of Victoria Avenue and south of Third Street in eastern San Bernardino will serve as the Southern California headquarters for the e-commerce giant's expansive freight network.

Adrian Martinez, an attorney with Earthjustice, the San Francisco-based law firm representing environmentalists in the case, said Tuesday, Nov. 23, that he and his clients are evaluating next steps.

"The heart of this legal fight," Martinez added, "is about the health of San Bernardino residents, who have been living in the shadow of mega-warehouses that go up in a matter of months and pump incredible amounts of diesel particulate matter into neighborhoods.

"The FAA approved an Amazon warehouse terminal that will pump one ton of toxic air pollution into the community every day."

The court's Nov. 18 decision, Martinez said, "is a setback for the people trying to breathe clean air in San Bernardino, but the fight is far from over."

In his opinion, U.S. District Judge Eugene Siler wrote that the petitioners did not adequately argue that the FAA failed in its obligation to sufficiently consider the cumulative impacts of a project that would eventually have around-the-clock air and ground cargo operations near sensitive uses.

Siler wrote the FAA did evaluate air quality impacts in the surrounding area and provided a detailed explanation of its methodology, as well as the true scope of the project's emissions and the impact of those emissions.

U.S. Circuit Judge Patrick Bumatay concurred.

Scott Huber, an attorney with Ontario-based Cole Huber, which represents the San Bernardino International Airport Authority, said in an email Tuesday officials were pleased the court "affirmed the work done by the FAA related to the property and thoroughness of the Environmental Analysis.

The airport authority, Huber said, "is dedicated to being a good partner with the neighboring communities to protect the air quality and to ensure compliance with the environmental mitigations that are conditions of the project."

In her dissent, U.S. Circuit Judge Johnnie Rawlinson wrote that the case "reeks of environmental racism, defined as 'the creation, construction, and enforcement of environmental laws that have a disproportionate and disparate impact upon a particular race.'"

As local environmental justice advocates have argued for years, Rawlinson noted that San Bernardino County is "one of the most polluted corridors" in the country, with people of color overwhelmingly composing the population near the airport.

Moreover, the FAA's assertion that the project "will have no significant environmental impact on the already overly-polluted San Bernardino Valley does not pass muster" under the National Environmental Policy Act, Rawlinson argued.

"Does anyone doubt that this Environmental Analysis would not see the light of day if this project were sited anywhere near the wealthy enclave where the multibillionaire owner of Amazon resides?" Rawlinson wrote. "Certainly not. The same standard should apply to the residents of San Bernardino Valley, who have already borne for many years the heavy cost of pollution resulting in a quantifiable detriment to their health.

"But such is the nature of environmental racism."

Martinez agreed.

"Our clients are asking for the same analysis that an affluent neighborhood would get for a large federal project," he said. "The reality is, though, that larger federal projects aren't in the more affluent neighborhoods."

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