Oakland may appeal after judge rejects coal ban

Modesto Morganelli
Mag 17, 2018

Oakland officials said coal was never mentioned as a possibility but lawyers for developers said city officials always knew there would be a mix of goods, including coal.

OBOT's developers - including Phil Tagami, a friend of Governor Jerry Brown - want to haul coal and petroleum coke by train from almost 1,000 miles away in Utah and ship it to Asia through the $250 million facility. Oakland is reviewing its options and may appeal, said Justin Berton, a spokesman for Mayor Libby Schaaf.

In a statement, Schaaf vowed to continue the fight.

Two environmental groups, the Sierra Club and San Francisco Baykeeper, joined the city in trying to defend the coal ban.

City leaders approved the rail and marine terminal in 2013 as part of a makeover of a shuttered Army base. In 2015, news broke that Tagami and business partners, including former Port of Oakland executive Jerry Bridges and his company Terminal Logistics Solutions, were planning to turn the bulk terminal into a dedicated coal export hub. Bowie largely paid for Tagami's lawsuit against the city. The company's ability to export coal from the West Coast is a lifeline to an otherwise flagging industry due to the fact that other coal export projects on the West Coast have been canceled or blocked by local communities, and the domestic market for coal is declining. The council relied on a clause in its contract with OBOT, which states that Oakland may enact new regulations on the project if there is "substantial evidence" that these regulations are necessary to protect public health and safety. Typically though, development agreements lock in the land use regulations that were in place at the time the contract was signed.

Tagami's company then sued Oakland in December 2016, arguing that the evidence was inadequate for the city to restrict coal shipments.

"The city was not required to compile a ideal evidentiary record; far from it", Chhabria wrote. "But the gaps and errors in this record are so numerous and serious that they render it virtually useless". Kalb, who independently hired a second expert, Dr. Zoe Chaffee, to study the possible health impacts of the coal project, said he was disappointed the judge didn't appear to consider Chaffee's report when making his decision. "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. "This mistake tainted the record before the City Council", Chhabria concluded bluntly.

Instead, the judge said the city wrongfully assumed they would not be used during transport because the covers have not been used in the United States. But Chhabria was unconvinced. As an example, he said the city failed to factor in covers on the coal-carrying rail cars in its emissions estimates for the project.

Chhabria also said the city failed to "meaningfully" assess whether some other method - such as applying a chemical dust suppressant to the loaded coal cars - would be effective.

A federal judge ruled Tuesday to overturn a ban on coal shipping through Oakland, California-which could pave the way for the city's port to become one of the largest coal-export facilities in the country.

"Oaklanders understand that a coal export terminal will have horrific impacts on the health and safety, indeed the very lives, of West Oakland residents, particularly children, who are disproportionately African American and other people of color", Oakland City Attorney Barbara Parker told Mother Jones in an email in January.

"The city says that any emissions pose a substantial danger even though it continues to allow the East Bay Municipal Utility District and iron foundry to consume coal and coke - and emit particulate matter", he wrote. "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.

Documents submitted to the city in 2015 indicated that TLS was considering shipping coal and coke through the terminal.

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