Oakland port ban on coal shipments struck down by judge

Maricruz Casares
May 17, 2018

A federal judge on Tuesday invalidated an Oakland, California, ordinance that prohibited a planned deep water port from handling coal from Utah and Wyoming for export to other countries.

In his decision this week, U.S. District Court Judge Vince Chhabria ruled that the city had not adequately shown that the shipments of coal would have adverse public health and safety impacts on the surrounding community.

A wave of anti-coal protests followed OBOT's deal, and the next year the city passed an ordinance banning the storage and handling of coal, citing "substantially dangerous" health conditions caused by coal dust.

That argument led Chhabria to question the city's reasoning. "This created a sizable gap in the record, and a major flaw in the City Council's ultimate conclusion that OBOT's emissions would pose a substantial health or safety danger".

The city first reached an agreement with Tagami to develop the land as a bulk goods terminal in 2012.

The new regulations brought the project to a halt.

The coal plan touched off a widely publicized dispute between Tagami and Schaaf and prompted the City Council to pass both an ordinance banning coal shipments and a resolution specifically prohibiting the fossil fuel from passing through the new bulk terminal.

Tagami did not return an email Tuesday seeking comment.

At a bench trial this past January, Tagami's lawyers at Quinn Emanuel Urquhart & Sullivan argued that Oakland pressured consulting firm Environmental Science Associates (ESA) to produce a report that would "support a coal ban". One of those measures involves fitting coal cars with covers, a technique that hasn't been used in the United States.

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Chhabria sided with Feldman, writing Tuesday that ESA's estimates "were nearly completely unreliable", and that "the record is riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analyses, to the point that no reliable conclusion about health or safety dangers could be drawn from it". The City Council spent months collecting evidence in 2015 and 2016 and heard hours of testimony. "The lack of existing data about the effectiveness of a new technology like rail auto covers is not enough of a reason to assume them away, particularly when the developers have committed to using them", he wrote. "The City takes its responsibility to protect the health and safety of residents very seriously, particularly children whose health will be directly impacted by storage, handling and shipping of coal and coke through our neighborhoods".

The Sierra Club expressed disappointment in the ruling.

Chhabria said the Oakland City Council didn't have enough evidence when it put the ban in place to validate its rationale for the measure-that coal shipping would pose a significant danger to residents-and in his decision, he wrote that the city's records are "riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analyses".

West Oakland residents die 12.4 years sooner than residents in wealthier Oakland neighborhoods, and the estimated lifetime potential cancer risk in West Oakland from port emissions is about seven times that of the region as a whole, according to an amicus brief filed by California Attorney General Xavier Becerra.

The city had also argued that national and state air quality standards are insufficient because no level of particulate pollution is safe, especially for vulnerable populations.

But Chhabria noted that other pollution sources nearby, such as the port, the Bay Bridge toll plaza, and the iron foundry, are exempt from the ban.

"But if these are not the right standards for assessing what makes for "substantial danger" what are?" the judge said. All kinds of activities emit particulate matter, from truck traffic to office park development. "Without comparing these activities' impact on air quality to OBOT's, it's hard to grasp how the city decides which activities pose a substantial danger to health and which do not".

But even without the Oakland ban, "most realists have come to the conclusion that west coast states such as California, Washington and OR simply aren't going to allow a lot of coal exports now OR in the future", says Clarksons Platou analyst Jeremy Sussman.

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