SAN FRANCISCO (CN) – Attorneys for a developer fighting to export coal from Oakland, California, tried to convince a judge Friday that city officials fudged a key scientific report to justify enacting a coal-handling ban in the city.
But U.S. District Judge Vince Chhabria in San Francisco did not indicate how he will rule following the last day of testimony in a three-day bench trial over the ban. In a Jan. 10 hearing, however, he suggested allowing Oakland to redo its findings.
Developers of the Oakland Bulk & Oversized Terminal (OBOT) – including Phil Tagami, a friend of Gov. Jerry Brown – want to haul coal by train from nearly 1,000 miles away in Utah and ship it to Asia through the $250 million facility. The terminal is being built on an old army base in West Oakland and would be capable of exporting up to 10 million tons of coal annually, making it the largest coal export terminal on the West Coast.
But in June 2016, the Oakland City Council passed two measures prohibiting the storage and handling of coal and petroleum coke at any bulk-materials facility in the city after multiple studies found that coal dust blowing off trains can cause asthma or cancer, and that emissions from the terminal would worsen West Oakland’s already-poor air quality.
The new regulations brought the project to a halt. Tagami sued the following December to reverse the ban, claiming it violates the Constitution and a 2013 development agreement between OBOT and the city.
At trial, Tagami’s lawyers at Quinn Emanuel Urquhart & Sullivan tried to prove Oakland pressured Environmental Science Associates (ESA) to produce a report that would “support a coal ban.” According to them, the report – on which the City Council relied to pass the ban – was based on faulty math and used the wrong input for estimating the amount of emissions the terminal would create.
This led to the conclusion that the terminal would create 67 pounds of Particulate Matter 2.5 – a type of air pollution that penetrates deep into the body – each day, 17 times more than it actually would, his lawyers said.
Tagami declined to comment Friday.
Environmental Science Associates’ Victoria Evans, the report’s project manager, denied the city told her team to produce a report justifying a ban. But on cross-examination, she acknowledged she had meant to say in the report that the terminal would create 3.12 pounds of Particulate Matter 2.5 per day, not 67 pounds. In videotaped deposition testimony played in court, Evans said she could not explain how 67 pounds got into the report.
Ranajit Sadu, Oakland’s air pollution expert, defended Environmental Science Associates’ calculations, saying “nobody in their right mind” would use the input Tagami’s attorneys said it should have used.
“[ESA’s input] is the one used by permitting organizations and the air quality community,” Sadu testified. “So I don’t see any problem with using” it.
Evans pointed out the report rejected placing covers on rail cars carrying coal or spraying down the coal with a chemical surfactant before a train trip – two measures the terminal had proposed to stop coal dust from blowing off trains into West Oakland – because no scientific data shows they work. Putting covers on rail cars can cause coal to catch on fire, she added.
The terminal’s expert David Buccolo, a self-described “railroader” who works for railroad consultancy Rusty Spike Rail Service, testified covering coal cars works. But he later conceded he had never seen a covered coal car in his 48 years in the rail industry; that coal is generally shipped uncovered in the United States, and that BNSF Railway Company – one of the country’s largest freight railroad companies – has yet to start a planned study of covered coal cars because it could not find any covers to test.
Oakland says it has the right under the development agreement to enact health and safety regulations like a coal ban when “substantial evidence of a substantial danger” to public health exists. It says it doesn’t want to exacerbate pollution in West Oakland, a community primarily composed of low-income people of color that already suffers from some of the worst air quality in California due to its proximity to major freeways and the Port of Oakland.
West Oakland residents die 12.4 years sooner than residents in richer Oakland neighborhoods, and the estimated lifetime potential cancer risk in West Oakland from emissions from the port is about seven times that of the region as a whole, according to an amicus brief filed by California Attorney General Xavier Becerra.
Lora Jo Foo with No Coal in Oakland, a group that opposes the terminal, expressed concern over what a ruling in Tagami’s favor would mean.
“If it goes up on appeal we have this major problem of the Supreme Court making a ruling on the case that could possibly be that Oakland’s ban is unconstitutional,” she said after the trial Friday. “And what that means is every city and county in the U.S. will not be able to pass ordinances to protect the health and safety of its citizens from fossil fuel infrastructure, fossil fuel projects.”
Robert Feldman and Meredith Shaw with Quinn Emanuel Urquhart & Sullivan represent the terminal. Gregory Aker and Kevin Siegel with Burke, Williams & Sorensen represent Oakland.