The city vows to fight the ruling that its decision was based on information “riddled with inaccuracies, major evidentiary gaps, erroneous assumptions and faulty analysis.”
A federal judge on Tuesday invalidated an effort by Oakland, Calif., to prevent the export of coal through a planned new bulk materials terminal on its waterfront, saying its City Council did not have adequate information when it made a decision that the terminal presented a danger to its residents.
California Capital & Investment Group plans to build the Oakland Bulk & Oversized Terminal (OBOT) on land leased from the city. The city acquired the land from the federal government after the Oakland Army Base, near the base of the Oakland-San Francisco Bridge, was closed. It is adjacent to the container facilities at the Port of Oakland.
OBOT would be operated by Terminal Logistics Solutions, owned by Bowie Resources Partners, which has coal mines in Utah and Colorado. The chief executive officer of Terminal Logistic Solutions is Jerry Bridges, formerly the executive
director of both the Port of Oakland and Port of Virginia. California Capital & Investment is headed by Phil Tagami, a well-known Oakland real estate developer.
U.S. District Court Judge Vince Chhabria said, “The development agreement froze in place the local regulations that existed at the time the agreement was signed. This means, generally speaking, that any regulations adopted by Oakland thereafter would not apply to the shipping terminal. But the agreement contains an important exception: A regulation that postdates the development agreement can be applied to the shipping terminal if the city determines that the failure to apply the new regulation would pose a ‘substantial danger’ to the health or safety of people in Oakland. The agreement specifies that any such determination by the city must be supported by ‘substantial evidence.’”
When the Oakland City Council learned that coal was one of the commodities the terminal might handle, it responded with an ordinance banning coal operations at bulk material facilities and passed a resolution that applied the ordinance to OBOT through a finding that the terminal would pose such a danger to the health and safety of Oakland residents.
Chhabria said the “substantial evidence” standard is deferential, that the city was right to say it has a special obligation to protect vulnerable members of its community such as Oakland residents living adjacent to the terminal, and that “local policy makers are not required to take it on faith that existing federal or state pollution standards will adequately protect people.”
But he said Oakland was wrong in asserting that the information before the City Council when it made its decision “contained substantial evidence that the proposed coal operations would pose a substantial health or safety danger.”
“In fact, 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.”
He concluded that the resolution applying the coal ban was a breach of the development agreement between the City and the developer of the bulk terminal.
However, Chhabria’s decision appears to leave the door open for further action by the city.
“There is no reason to strike down the ordinance once it has been determined that Oakland may not presently apply it to OBOT,” he wrote. “The city remains free, of course, to pursue future regulation of the project so long as it complies with its legal obligations, including any legitimate contractual obligations to the project developers.”
Libby Schaaf, the mayor of Oakland, responded to the decision with a statement that said, “This is a fight for the health of our community. This is a fight for environmental justice and equity. This is not over.”
Luis Amezcua, chair of the Northern Alameda County Group of the Sierra Club San Francisco Bay Chapter, said while the decision was “an unfortunate setback, we believe the City of Oakland has every right to protect the public health of its community, especially for the most vulnerable, by banning the handling and storage of coal.”
“We support job creation and economic development, but we should not have to choose between economic development and our health — we can have both. This decision is just one step in what we expect to be a long legal process,” he added.
Judge strikes down Oakland coal ban
