SAN FRANCISCO (CN) — A federal judge Wednesday refused to dismiss a challenge to Oakland, California’s ban on coal exports, clearing the way for trial between the city and developers.
U.S. District Judge Vince Chhabria said neither party had sufficiently explained the evidence, making it difficult to rule on whether the ban violated the city’s contract with developers of a West Oakland shipping terminal fighting to export coal to Asia. He set a bench trial for Jan. 16.
“I feel I have not been given enough understanding of the evidence that was in the record that was before the City Council,” Chhabria said in the four-hour hearing.
“Was the City Council given the ability to judge whether the amount of emissions from the facility would pose not merely a danger but a substantial danger? That’s what the trial is going to be about.”
Developers of the Oakland Bulk & Oversized Terminal (OBOT), including Phil Tagami, a friend of Governor 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, which is being built on an old Army base.
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. Multiple studies found that coal dust blowing off trains into nearby neighborhoods could cause asthma or cancer.
The new regulations brought the project to a halt.
Tagami sued, claiming the regulations on what would have been one of the largest coal-export terminals on the West Coast violate a 2013 development agreement and the Constitution, and are preempted by federal rail and shipping laws.
The facility would be capable of exporting up to 10 million tons of coal annually. California today exports less than 3 million tons annually.
Oakland says it has the right to enact health and safety regulations, such as the coal ban, when there is “substantial evidence of a substantial danger” to public health. At the June 2016 meeting, city officials cited multiple expert reports on which they based the substantial-danger finding, all of which concluded that storing and handling coal at the terminal would hurt air quality and health in West Oakland.
West Oakland is primarily composed of poor people of color. Due to their proximity to major freeways and industry at the Port of Oakland, residents are exposed to heavy pollution and suffer from elevated cancer rates, according to the city and the California Air Resources Board. Oakland does not want to exacerbate neighborhood pollution with coal dust.
Attorney General Xavier Becerra reiterated the city’s arguments in an amicus brief.
But Tagami attorney Robert Feldman told Chhabria on Wednesday that the coal ban violates the development agreement. Feldman, with Quinn Emanuel Urquhart & Sullivan, called the conclusions by one of the city’s experts, Environmental Science Associates “speculative nonsense” based on math that was “completely screwed up.”
Feldman said the environmental planning firm used the wrong standard to estimate the amount of emissions the terminal would create, leading it to conclude it would create 6 tons of emissions a year, 17 times more than it actually would.
“The report isn't worth the paper it was written on,” Feldman said.
