No Coal Activists Voice Cautious Optimism After Ninth Circuit Hearing

  • 'Port of Oakland 'Round Midnight' | Russell Mondy CC BY NC 2.0

“Port of Oakland ‘Round Sunset” by Chris Mondy CC BY NC 2.0


After a packed Ninth Circuit Court of Appeals hearing Tuesday, No Coal in Oakland activists are cautiously optimistic that the court will overturn District Court Judge Vince Chhabria’s May 2018 decision concluding that the City of Oakland breached its contract with developers when it ruled out storage and handling of coal at the proposed Oakland Bulk and Oversized Terminal (OBOT).

The most dramatic moment in Tuesday’s oral argument came when District Court Judge Lawrence Piersol, sitting as one member of the three-judge panel who will decide the fate of the City’s ban, accused proponents of the Oakland Bulk and Oversized Terminal of “sitting in the weeds” by failing to present the City Council with their strongest evidence to head off the City’s 2016 decision to ban storage and handling of coal by OBOT, then presenting the evidence withheld from the City at a later time, in a federal lawsuit.

“The thing that bothers me about this whole proceeding is there were public hearings June 17, 2014, September 21, 2015, May 16, 2016, June 27 of 2016 and there were lots of people who testified,” Judge Piersol mused. “Aside from the experts for the City, there were also other experts who testified and your clients [only] put in the Basis of Design, which wasn’t expert testimony, and you waited until the trial to put [your expert evidence] in.  I’ve tried a lot of administrative proceeding cases and usually the other side puts their evidence in so that the city … could consider it.  Instead, you sat in the weeds and then came [up with it] at the trial.”

 “You think that we sandbagged,” said OBOT’s counsel.

“That’s right,” Judge Piersol replied.

“The idea that we sandbagged is 100% incorrect.”

“It looks like it though.”

While Judge Piersol’s lack of sympathy for the developers’ arguments was clear, the other two judges held their cards closer to the chest.  Ninth Circuit Judges Carlos Bea and Kenneth Lee were appointed by George W. Bush and Donald Trump, respectively.  Both are conservative judges with close ties to the Federalist Society that has worked for decades to move the American legal system to the right and now vets judicial appointees for the Trump Administration.

“Substantial Evidence”

From the exchanges at Tuesday’s hearing, it was clear that the Ninth Circuit’s resolution in the case will hinge on the panel’s views of the proper role of the federal district court in reviewing the City’s conclusion that “substantial evidence” showed a “substantial danger” of adverse health and safety impacts to residents of West Oakland and workers at and near the terminal.

Throughout Tuesday’s hearing, the judges asked no questions about the mass of safety and health evidence presented in the five expert reports that the City relied upon in deciding to apply an ordinance against storage and handling of coal to OBOT.  The panel instead focused almost entirely on the question of the standard of review that Judge Chhabria applied to the City’s own determination.  “Standard of review” is a legal term of art that refers to the degree of deference that a court shows to the conclusions of an administrative agency or lower court whose decision it is reviewing.

Counsel for the City of Oakland and its environmental allies, Sierra Club and San Francisco Baykeeper, argued that Judge Chhabria overstepped his authority when he held a three-day trial in January 2018 and allowed the developers to present voluminous expert testimony and evidence that developers never presented to the City Council.

Judge Chhabria formally acknowledged in his decision that he could only evaluate whether the City Council had “substantial evidence” to support its decision to ban storage and handling of coal at OBOT.  Nonetheless, he decided to host a courtroom duel in which the developers could attack the City’s conclusions regarding health and safety risks through the use of experts who had never appeared in the City’s proceedings.  Their views therefore evaded challenge by independent experts such as members of the volunteer blue-ribbon Public Health Advisory Panel who submitted an extensive report two weeks before the City adopted its coal ban.

Extra-Record Evidence

For these reasons, the defendants’ attorneys decried Judge Chhabria’s use of “extra-record evidence” – evidence never presented to the City Council – and argued that Judge Chhabria effectively usurped the City’s authority to weigh the health and safety evidence, authority they say was expressly assigned to the City in the parties’ contract.

When OBOT’s counsel argued that, under established legal principles, Judge Chhabria could use extra-record evidence to “explain and shed light on” the record evidence that supported the City Council, Judge Piersol responded: “But that doesn’t mean that the extra-record evidence can swallow the entire proceeding. That’s exactly what happened, it looks like.”

No Coal in Oakland activists who attended the hearing expressed optimism after the hearing, but there is no certainty how the three-judge panel will rule.  If either of other judges winds up agreeing with Judge Piersol, the City will chalk up an impressive victory that could signal the beginning of the end of Oakland’s 4 ½ year nightmare prospect of millions of tons of coal passing through town each year.

The Court has no set time limit to issue a decision, but most Ninth Circuit cases are decided within 3 months to a year.

Tuesday’s hearing is archived on the Ninth Circuit’s website with both video and audio feeds available for public review.