City of Oakland and Allies Fire Opening Salvos in Appeal to Restore Coal Ban
California Attorney General Sides With Oakland
The City of Oakland and its allies have filed the first round of briefs in the legal battle to overturn U.S. District Judge Vince Chhabria’s May 2018 decision striking down Oakland’s resolution banning the storage and handling of coal at a West Oakland site near the Bay Bridge.
The City of Oakland and intervenors Sierra Club and San Francisco Baykeeper filed opening briefs on December 10. The City’s bid to restore its ban on use of the West Gateway site for coal was backed by five separate amicus briefs filed on Monday:
- Attorney General Xavier Becerra filed on behalf of the State of California;
- Center for Biological Diversity (CBD) filed on behalf of West Oakland Environmental Indicators Project, Asian Pacific Environmental Network, No Coal in Oakland, West Oakland Neighbors, Communities for a Better Environment, and CBD itself;
- Vermont Law School Professor Kenneth J. Rumelt filed on behalf of a group of prominent public health advocates including former Alameda County Health Officer Arthur Chen, former Contra Costa County Director of Public Health Wendel Brunner, Northwestern School of Law Professor and Director of Center for Public Health and Law Wendy J. Parmet, former Assistant Surgeon General of the United States Claire Broome, UC Berkeley Professor Emeritus of Public Health Thomas McKone, UC Berkeley Clinical Professor Emeritus of Public Health John Swartzberg, and UC Berkeley School of Public Health Adjunct Professor Julia Walsh;
- Shute Mihaly LLP filed on behalf of the East Bay Regional Parks District which is building a park adjacent to the West Gateway;
- Santa Clara County Counsel filed on behalf of the California State Association of Counties.
Together, the seven briefs in support of the appeal make a powerful case that the Ninth Circuit should reverse Judge Chhabria’s decision. They uniformly condemned the district court for ignoring the established rules limiting court review of the City’s decision to apply its ordinance against coal storage and handling to the proposed coal terminal.
How the Case Got to the Ninth Circuit
In 2013, the developer, Phil Tagami’s Oakland Bulk and Oversized Terminal LLC (OBOT), obtained a Development Agreement that froze in place Oakland’s land use laws as they existed in 2013. The City and OBOT now dispute whether the City acted lawfully in knocking coal out from among the 15,000 bulk commodities that the terminal could ship.
The 2013 Development Agreement specifically allowed the City to impose new regulations on the developer provided the City held a public hearing and compiled substantial evidence that failure to impose new regulations would result in substantial danger to the health and safety of users and neighbors of the project. After conducting an extensive public hearing, the City enacted an ordinance and resolution in July 2016 that prohibited use of the West Gateway to handle coal. A few months later, with funding by Bowie Resource Partners, Utah’s largest coal company, the developer sued the City in federal court. Bowie has recently changed its name to Wolverine Fuels.
Although Judge Chhabria was required by law to show deference to the City’s evaluation of the evidence collected in its nearly year-long public hearing process, the judge ordered a three-day trial. At trial, the court strictly limited the City to the evidence that the City had acquired prior to enacting its ban on coal storage, but freely allowed the City’s opponent Oakland Bulk and Oversized Terminal LLC (OBOT) to unleash testimony from a bevy of high-paid expert witnesses who had never appeared or submitted evidence in the City’s public hearing.
Based largely on the testimony of these witnesses, Judge Chhabria struck down the City’s application of the coal ban to OBOT on grounds that the City did not support its action with “substantial evidence.” He concluded that the City had not proved that the coal dust from the facility and coal trains would threaten public health or pose a safety hazard despite the conclusion of three expert reports that the City reviewed prior to adopting the ban.
Oakland and Its Supporters Push Back
A consistent theme of the briefs supporting the City’s appeal is that Judge Chhabria overreached by failing to pay proper deference to the City’s judgment on the evidence of public health and safety risk. They argue that, by allowing OBOT to put on the witness stand a parade of expert witnesses to make arguments that were not made when the City conducted its public hearing, the district court undermined basic principles of court review.
“Like appellate review of trial-court fact-finding, the court’s task does not include entertaining new evidence or resolving conflicting evidence,” the California State Association of Counties states in its brief. “The district court misapplied these bounds from the get-go, when it allowed the case to proceed to a bench trial with new evidence.”
Several briefs took issue with Judge Chhabria’s requirement that Oakland compare the projected emissions from a coal terminal with other existing sources of emissions such as the Bay Bridge Toll Plaza. Sierra Club/SF Baykeeper argue that, even if the comparison demanded by the court were an appropriate method for evaluating danger, “the substantial evidence standard does not allow the court to insist upon its approach, demand new studies, or substitute its judgment for the City’s.”
The public health community brief points out that the court’s approach ignores the common sense principle that “two wrongs don’t make a right.” “Under the district court’s logic,” public health advocates submit, “cities could only prohibit a new source of air pollution if it would emit more pollution than all other existing sources or combinations of sources.” Their brief quotes a 1981 United States Supreme Court case, Minnesota v. Clover Leaf Creamery Co., which explained that a government “need not strike at all evils at the same time or in the same way” and may need to deal with a problem “step by step, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.”
The Attorney General’s brief highlights the district court’s departure from well-established approaches that cities employ when determining the significance of health and safety impacts under the California Environmental Quality Act. The AG argues that the City’s determination that OBOT’s projected emissions of 21 tons of PM2.5 (fine particulate matter) far exceed the City’s CEQA significance threshold of 10 tons per day should have satisfied the judge that the City had “reasonable and credible evidence of a substantial danger” to West Oakland residents.
Under California’s environmental law, cities are encouraged to adopt “thresholds of significance” in order to make decisions about the significance of health and safety impacts from prospective projects. Oakland’s threshold for PM2.5 is borrowed from the threshold adopted by the Bay Area Air Quality Management District. In the AG’s view, the exceedance of the City’s established threshold of significance should have been sufficient to uphold the City’s ban without the studies and proofs the district court apparently required.
Another common theme of the briefs is that siting a coal storage and handling facility in West Oakland will pose a special danger to public health because West Oakland is a community that is already facing numerous public health challenges. Center for Biological Diversity’s brief on behalf of community and environmental groups provides the court with a dramatic picture of West Oakland’s vulnerability to additional environmental stress. It points out that any increase in air pollution due to coal exports will likely have an adverse health impact on the West Oakland population with greater severity than on other Oakland residents were they to face a similar exposure. CBD’s brief supports its conclusions with a comprehensive review of the evidence about the West Oakland neighborhood in the City’s record as well as peer-reviewed journals, government reports, and other authoritative sources.
Although all the briefs frame their arguments in lawyerly terms, several of the attorneys underscored the coal terminal’s toll on West Oakland in their comments to the press.
“This disgusting coal-export plan will force the children of West Oakland to breathe toxic coal dust known to increase lung and heart diseases,” Jonathan Evans, CBD’s environmental health legal director, told the Bay Area News Group. “With filthy fossil fuels already choking the world we’re handing to our children, the last thing they need is a daily diet of dirty coal dust just from walking down their neighborhood streets.”
Echoing Evans’s concern for West Oakland, Attorney General Becerra commented, “The California Department of Justice stands by the City of Oakland, which took an important step to protect its residents. The transportation of coal from the terminal would disproportionately hurt communities of color already burdened by pollution and its consequent health effects, such as asthma and cancer. We are committed to advance environmental justice wherever possible in our state.”
Within the next few months, OBOT will file its response to the barrage from the City and its supporters, followed a week later by any amicus briefs supporting OBOT, and, finally, a filing of reply briefs by the City and Sierra Club/SF Baykeeper.
After that, the case will disappear from sight for an indeterminate number of months. Unlike with a case in the Supreme Court, the parties will have no idea which three-judge panel of Ninth Circuit jurists will hear their case until they receive a notice to appear for oral argument.
The Ninth Circuit is constantly creating and dissolving three-judge panels who sit to hear randomly assigned cases. The Ninth Circuit has 29 judges. This makes predictions of the outcome impossible except in the simplest cases.
Most appeals are unsuccessful, but attorneys for the City and its allies are optimistic because the Ninth Circuit may be disturbed that Judge Chhabria ignored the limited role of a reviewing court in determining if the City has substantial evidence to apply the coal ordinance to the West Gateway and substituting his opinion and judgment for that of the City.
Aside from strictly legal concerns, the Ninth Circuit judges are also influenced by their politics and view of the world. Hopefully, there will be at least one judge on the Ninth Circuit panel who raises her eyebrows at Judge Chhabria’s cavalier dismissal of the City’s consideration of climate change impacts of the coal terminal as “facially ridiculous.”
A Brief Summary of the Seven Briefs in Support of Oakland’s Coal Ban
The City’s brief argues that:
- The judge improperly admitted and heavily relied upon evidence, including live testimony by expert witnesses, that was never presented to the City;
- The judge usurped the City’s authority to decide how best to protect the public based on the evidence it had gathered and failed to apply the “substantial evidence” test correctly which requires deference to the City’s determinations of factual issues;
- The judge erred by insisting that the City had to prove that coal car covers, which currently are not being manufactured, would not eliminate dust emissions without creating other problems such as fire hazards;
- The judge erred in rejecting emissions estimates based on reasonable extrapolations from the limited scientific data available;
- The judge relied on his own speculation rather than the opinion of experts who provided information to the City on the issue of local wind conditions and train speed;
- The judge speculated that the Bay Area Air Quality Management District, which has never issued regulations governing coal handling at Richmond’s Levin Terminal, would fix any problems that might arise;
- A University of Washington study of coal dust dispersion was improperly dismissed by the judge based on his erroneous assumption that the coal involved in that study (the only such study available) was different from the coal coming from Utah when the developer was claiming the right to ship any type of coal.
Sierra Club/SF Baykeeper’s brief argues that:
- The City based its decision to prohibit coal storage and handling at the West Gateway on substantial evidence of a substantial danger to public health and safety;
- The district court improperly allowed OBOT to attack the City’s reasoning using expert testimony and arguments that were never presented during the nearly year-long public hearing process;
- The judge improperly substituted his own judgment for the City’s; and
- California’s Development Agreement Statute protects the right of the City to ban storage and handling of coal as an exercise of its authority to protect public health and safety.
Attorney General Becerra’s brief argues that:
- Oakland properly invoked regulatory powers to protect the health and welfare of Oakland residents;
- Oakland had a right under its contract with the developer to apply new regulations to protect against health and safety risks;
- Particulate matter from the project poses significant risks to residents of Oakland; and
- West Oakland residents are already overburdened by pollution, and the handling and storage of coal would increase their pollution burden.
The Public Health Advocates’ brief argues that:
- The district court misapplied the “substantial evidence” test and “set an impossibly high standard for cities to meet when new information concerning an existing development agreement implicates public health and safety”;
- The judge’s decision does not afford cities the necessary flexibility to address public health and safety concerns when scientific certainty does not exist;
- The district court’s decision encourages developers to conceal important information from the public and from public officials when they are seeking development agreements;
- The judge’s willingness to allow OBOT to attack the City’s decision with evidence that was never presented during the City’s public hearing process encourages developers to engage in gamesmanship.
The community and environmental organizations’ brief drafted by CBD argues that:
- The communities near the West Gateway already suffer from heavy air pollution and coal handling, and storage will compound their health and safety risks;
- Poor air quality in West Oakland currently leads to serious, deleterious health impact;
- Coal storage and handling would release particulate matter, toxic pollutants, and volatile gases posing health and safety risks to residents and workers;
- Coal delivery trains would deposit toxic coal particulates in Oakland and release hazardous diesel fumes;
- The coal terminal would lead to increases in disease, work and school absences, social stress, lost recreational opportunities, and the risk of a catastrophic fire in the West Oakland site near the Bay Bridge;
- Workers would face serious health and safety risks from employment at a coal terminal.
The East Bay Regional Park District’s brief argues that:
- The Park District has a compelling interest in the case because it is planning to build a lively new Gateway Park directly adjacent to the terminal site at the foot of the Oakland Bay Bridge;
- Once completed, the Gateway Park will provide a welcoming entrance to the Bay Bridge bike and pedestrian path, access to the bay, and outdoor recreational opportunities to thousands of visitors for decades to come;
- The City had substantial evidence that storage and handling of coal at OBOT’s terminal would result in substantially hazardous conditions for the Gateway Park’s recreational users; and
- The district court’s decision failed to mention the park and the substantial health and safety risks to its users.
The California Association of Counties (CSAC) brief argues that:
- CSAC is a non-profit corporation whose membership comprises all 58 California counties;
- The Counties are concerned by the district court’s decision because “the court’s contractual analysis gave short shrift to a number of interconnected state law doctrines and constitutional provisions of particular import to all California local governments”;
- Although framed as a breach of contract claim, OBOT’s claim is predicated on attacking a public safety judgment by Oakland’s elected officials in the proper exercise of the City’s sovereign police power;
- The district court erred by displacing the City’s public safety judgments with its own;
- The district court deepened its error by failing to recognize that the “substantial evidence” test, which the court acknowledged, allocates fact-finding and policy-making to a different branch of government, not the court; and
- The district court’s lopsided consideration of extra-record evidence further skewed its determination and, in the process, undermined the basic principles restricting the courts’ role in reviewing the results of legislative and administrative proceedings.
Photo at top: Court of Appeals for the Ninth Circuit, San Francisco, circa 1905. Courtesy of Ninth Circuit Court of Appeals.