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California judge overturns Oakland City anti-coal ordinance

SALT LAKE CITY — A federal judge on Tuesday invalidated an Oakland, California, ordinance that prohibited a planned deep water port from handling coal from Utah and Wyoming for export to other countries.

The ruling by U.S. District Judge Vince Chhabria said the city failed to put forth a "record" that the handling and storage of coal presented a substantial danger to the public — the threshold the city had to meet to alter the terms of a 2012 development agreement.

Chhabria said the record is "riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analysis, to the point that no reliable conclusion about health or safety dangers could be drawn from it."

Carbon County Commissioner Jae Potter said the ruling is a victory for coal country and the state of Utah.

"For Carbon County it means an opportunity to ship world-class coal to many other places within the world. We have been waiting for a decision like this because it will do nothing but strengthen our economy and bring jobs to an industry that has been unfairly attacked and restricted," Potter said.

The Sierra Club expressed disappointment in the ruling.

"The city acted in response to serious concerns about air quality from West Oakland residents, which is an area that is already struggling with severe air pollution," said Jessica Yarnall Loarie, staff attorney for the Sierra Club Environmental Law Program. "We are deeply disappointed to see this sensible, legal ban on handling and storing coal overturned."

Oakland Bulk and Oversized Terminal brought suit against Oakland after it adopted the ordinance, alleging a breach of the development agreement by applying the coal ban.

The judge said the city failed to take into account mitigation measures for the transport and staging phases during operations. Although the developer committed to cover rail cars to control fugitive dust emissions, the city failed to "meaningfully" explore their impact.

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.

"The lack of existing data about the effectiveness of rail car covers is not enough of a reason to assume them away, particularly when the developers have committed to use them."

The city had also argued that national and state air quality standards are insufficient because no level of particulate pollution is safe, especially for vulnerable populations.

That argument led Chhabria to question the city's reasoning.

"But if these are not the right standards for assessing what makes for 'substantial danger' what are?" the judge said.

He added the city would have been better off to compare the emissions from the new deep water port's handling of coal to other sources nearby — such as the Port of Oakland, the Bay Bridge toll plaza, the iron foundry exempted by ordinance or the construction of a new stadium for the Oakland A's.

"Counterintuitively, 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 said.

"Without comparing these activities' impact on air quality to (the port) it's difficult to grasp how the city decides which activities pose a substantial danger to health and which do not."