Judge Wrestles With Oakland A’s Ballpark Environmental Review Fast-Track

The Port of Oakland’s Howard Terminal, site of what the Oakland A’s baseball team hopes will be its new stadium. (Courthouse News photo / Nick Cahill)

OAKLAND, Calif. (CN) — A coalition of trade groups looking to stall construction of a new Oakland A’s ballpark near the Port of Oakland argued in virtual court on Thursday that Governor Gavin Newsom doesn’t have the authority to fast-track the project.

“Once the deadline came and went, the governor lost the authority to certify this project — period,” said attorney Ron Van Buskirk, who represents groups including the Pacific Merchant Shipping Association, California Trucking Association and Schnitzer Steel Industries. 

They claim the Oakland A’s are trying to cut corners on the environmental review of a project that will increase traffic and greenhouse gas emissions in the area and importantly, disrupt port activities at the nearby Howard Terminal.

In September 2018, Newsom signed Assembly Bill 734 into law, which streamlined the ballpark’s environmental review process under the California Environmental Quality Act. The bill written by Assemblymember Rob Bonta, D-Alameda, marks the ballpark as eligible to be fast-tracked under Assembly Bill 900, a law signed by former Governor Jerry Brown in 2011 that expedites large job-creating projects.

In a petition filed in March 2020, the groups say Newsom failed to certify the ballpark for fast-track environmental review treatment by Dec. 31, 2019.

Because of this, the groups want a full review under the CEQA, rather than the truncated one authorized by Newsom and the Legislature. 

Van Buskirk told Alameda County Superior Court Judge Noël Wise that the Legislature clearly knew about the Jan. 1, 2020 cutoff date in AB 900 when it incorporated its certification guidelines into AB 734. 

The Legislature has extended the sunset of AB 900 multiple times over the years, but failed to do again — causing AB 900 to expire on Jan. 1, 2021.

The sunset notwithstanding, the legal effect of AB 900 has not changed, he said. “AB 734 incorporated the [AB 900] guidelines and the guidelines at that time had the governor certification deadline. That deadline came and went without the project being certified. The legal effect of that is complete at that time.”

Wise noted that AB 900 and its attendant certification deadline is no longer in effect as of Thursday. 

“AB 734 lives on right now,” Wise said. “Couldn’t the governor certify this project today?”

“Absolutely not,” Buskirk said. “When the governor had to certify it by Jan. 1, 2020, he did not.”

“But that’s pursuant to a statute that is no longer in effect,” Wise pushed.

“It doesn’t matter. If you were convicted under some statute and years later it’s no longer in effect, your conviction does not go away,” he said, adding that Newsom’s power “terminated and doesn’t get revived because the other statute sunsets a year later.”

While he admitted that AB 734 does not contain a sunset date, but “it borrowed and kept in it the sunset dates from the guidelines as they were.”

Wise criticized the argument as illogical, saying AB 734 would have no substance if she adopted Buskirk’s reasoning. 

Deputy Attorney General Matthew Wise said the law that applies is the law that is currently in effect now. “There are no guidelines that are in effect today because AB 900 is no longer in effect.”

The Legislature’s purpose in passing AB 734, Wise argued, was “to avoid the AB 900 deadlines that would hamstring the project certification.” 

He added, “Why would the Legislature go through all the trouble to pass this special statute (AB 734) only to incorporate a deadline that they knew the project couldn’t meet?”

Judge Wise took the arguments under submission, saying she hopes to issue a ruling by Jan. 22.  She said she needs to figure out how to reconcile that if Newsom were to certify the project for speedy environmental review today, that certification would be invalidated by AB 900, a law that has just expired. 

“In my mind, it just doesn’t make any sense,” she said.

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