Environmental Groups Withdraw Lawsuit, Give City Opportunity to Stop Coal

By Tulio Ospina

Environmental groups represented by Earthjustice have withdrawn their lawsuit against the City of Oakland and a group of developers led by Phil Tagami’s CCIG for failing to conduct an environmental review of the possible impacts that exporting coal through Oakland’s former Army Base would have on adjacent communities.

Earthjustice, on behalf of the Sierra Club, Communities for a Better Environment and the Asian Pacific Environmental Network, had filed a California Environmental Quality Act (CEQA) action because the original CEQA review of the new Army Base development, performed over a decade ago, did not include an analysis of the impact of the transport of coal.

Shortly after submitting the CEQA challenge to Alameda County Superior Court, however, the City of Oakland filed a motion to dismiss the lawsuit, claiming that the city had not yet taken any action or claimed any position on the coal deal that could be legally challenged.

According to Irene Gutierrez, an attorney at Earthjustice’s California regional office, new information revealed in the city’s motion to dismiss has clarified the city officials’ position on the coal to the petitioners.

This prompted the environmental groups to take a step back to allow the city to continue its own review.

“We drew the lawsuit without prejudice, which means we have the right to return to court at a later date if we so choose,” said Gutierrez. “We will be following closely what the city is doing and trust that it will keep communities’ interests at heart.”

Currently, city staff is performing its own review of the health and safety impacts that transporting coal through the Oakland Bulk and Oversized Terminal (OBOT) would have on surrounding neighborhoods and the environment.

The result of this review will end in a final city council vote to determine what action the city will take to either prevent or regulate shipments of coal coming through Oakland.

The city also has the option of requesting an environmental review similar to the CEQA action, although it is unclear whether their environmental review would potentially halt the entire Oakland Army Base construction project, which would have been the result of Earthjustice’s CEQA challenge.

After reading the city’s motion to dismiss the lawsuit, environmental groups learned that the $250 million terminal development’s $53 million in matching funds that would be coming from Utah, where the coal is mined, was pursued by CCIG “without city support, knowledge or involvement,” according to the papers filed by the city.

In exchange for the $53 million in funds, the developers had promised the Utah counties shipping rights to at least 49 percent of the bulk terminal’s annual shipping capacity, potentially making Oakland the largest coal export city in California, according to Earthjustice’s press release.

Furthermore, it was revealed that the funding from Utah still needs to go through various levels of approval there and is being fought by a Utah chapter of the Sierra Club.

“What they’re trying to send over to Oakland is money slated for remediation and mitigation of the effects of the coal mining industry in Utah,” said Gutierrez. “It’s supposed to stay in Utah to help communities effected by mining and is not meant to come here.”

The city also made clear that it is still evaluating actions it may take to regulate the export of coal, such as requiring additional permits, passing new legislation that would apply to the project or requiring an environmental review.

“Up until September, city councilmembers and the city itself didn’t seem to be making firm statements about things like funding, coal or future discretionary permits,” said Gutierrez.

“Now that there is no more pending litigation, we are hoping for there to be more open communication with councilmembers, and we’re looking forward to hearing more about what precisely is on city council’s mind,” she said.

Before setting off for Paris to attend the global warming climate conference, Mayor Libby Schaaf doubled down on her position against exporting coal through Oakland, reiterating the city’s ability to declare coal a health and safety hazard in order to set regulations.

Originally, city councilmembers had chosen Dec. 8 as the deadline to make a final decision, but that date has been pushed back to February of next year in order to give city staff take more time to evaluate the alternatives.