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Judge Rules in Favor of Oakland Coal Project

17 May 2018

A USA district judge yesterday struck down a ban by the city of Oakland, Calif., that stopped companies from transporting coal though an export terminal seen by us miners as a key link to overseas markets. "We can't give up", said Oakland City Councilmember Dan Kalb in reaction to today's ruling.

The ruling is the latest chapter in a dispute that began with the city's attempt to find a developer for a parcel from the old Oakland Army Base just south of the Bay Bridge Toll Plaza.

Mayor Schaaf issued a statement after Chhabria released his ruling and called the battle over the coal port "a fight for the health of our community". Tagami sued in December 2016 to reverse the ban, claiming it violated a development agreement the city signed in 2013.

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".

The city's opposition to coal operations appeared to stem largely from concerns about global warming, but it was "facially ridiculous to suggest that this one operation resulting in the consumption of coal in other countries will, in the grand scheme of things, pose a substantial global warming-related danger to people in Oakland", the judge said.

ESA had estimated that OBOT's emissions would exceed state air quality standards for particulate matter 2.5, which the City Council concluded was substantial evidence of substantial danger to health. Roughly 5 million metric tons of coal or coke could be shipped through the terminal each year.

The Northern Alameda County branch of the Sierra Club's Bay Area chapter, one of the environmental and public health groups that had pushed for the coal ban, said it expects the legal fight over planned coal shipments to the facility to continue. "The first major problem with the emissions estimates for the transport and staging phases is that ESA assumed OBOT would take no mitigation measures during those parts of the operations", wrote Chhabria, referring to promises from Tagami's company and TLS that they would use rail auto covers and chemical spray-on surfactants to prevent coal dust from blowing off trains into surrounding neighborhoods. "The lack of existing data about the effectiveness of a new technology like rail vehicle covers is not enough of a reason to assume them away, particularly when the developers have committed to using them", he wrote.

The judge cited a wide range of what he described as shortcomings in the report and other evidence considered by the city in enacting the coal ban.

That argument led Chhabria to question the city's reasoning.

The judge found there was significant gaps in understanding for the report, for example that it did not take into account the Bay Area Air Quality Management District's role in regulating the project. OBOT's attorneys had argued during the trial that the air district will be sufficient to regulate and permit the coal terminal's activities to ensure it doesn't emit pollution at harmful levels. The $250 million project in west Oakland is expected to bring thousands of jobs to a historically African-American neighborhood that is among the poorest and most polluted in the region.

"I think the city can go back and do a better, more robust analysis to really meet the standard, to show that this coal terminal will substantially endanger health and the environment", Maharg told KQED's Tara Siler. "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 City of Oakland banned the handling and storage of coal and coke at OBOT's proposed shipping terminal pursuant to its police powers to regulate threats to health and safety", said Alex Katz, spokesperson for the Oakland City Attorney's Office. Tagami did not immediately respond to a request for comment.

"The problem is that what the judge did in explaining why the record was so weak, it's hard to imagine the record could be improved enough" to pass court scrutiny in the future, he said. "He's invalidating the resolution that applied the ordinance to the project".

Judge Rules in Favor of Oakland Coal Project