State AG asks en banc review of Amazon air cargo ruling

Attorney General Rob Bonta is again challenging an Amazon air cargo facility in San Bernardino County, seeking an en banc rehearing of a 9th Circuit 2-1 decision that denied his petition for review of the federal government's approval of the project.

Bonta's petition, filed Monday, asked the 9th U.S. Circuit Court of Appeals to reconsider the state's claims the Federal Aviation Administration should not have approved the facility. Bonta's petition said the project "adds one ton of air pollution per day to the South Coast Air Basin, the most polluted air basin in the country." State of California v. Federal Aviation Administration et al., 20-70464 (9th Cir., filed November 18, 2021).

FAA spokeswoman Emma Duncan said Tuesday the agency does not comment on pending litigation.

The petition argues the circuit panel's November decision imposed a heavy burden on the state to demonstrate the environmental harms of the project. Bonta argued that goes against court precedent under the National Environmental Policy Act and should thus be reconsidered.

9th Circuit Judge Johnnie B. Rawlinson dissented from the panel majority in November.

"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? Certainly not," she wrote. "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."

Circuit Judge Patrick J. Bumatay's concurrence stated that neither party had raised accusations of racial motivation and the dissent's assertions "were unfair to the employees of the FAA and the Department of Justice who stood accused of condoning racist actions and who had no chance to defend themselves."