By Tara Siler

January 16, 2018 - A lawsuit against the City of Oakland aimed at overturning a ban against the handling of coal at the old Oakland Army Base heads to trial on Tuesday.

Last week a San Francisco federal judge denied motions by both sides in the case to make a quick ruling on the suit filed by one of Oakland’s most well-known developers. Instead U.S. District Judge Vince Chhabria outlined the rules for a narrow and speedy bench trial.

The lawsuit was brought by Phil Tagami on behalf on his company, Oakland Bulk & Oversized Terminal LCC,  in December 2016, months after the City Council passed a ban against the handling and storage of coal at the marine terminal.

The council acted after it learned that Tagami had partnered with counties in Utah that planned to move millions of tons of coal and petroleum coke, an oil refinery byproduct, by rail to the Oakland facility and then ship the products to Asia.

The suit alleges, among other things, that the ban violates a 2013 development agreement Oakland struck with Tagami, making the city in breach of contract.

While the company’s complaint states the terminal would transfer shipments of bulk commodities, that could include coal, the development agreement between Oakland and Tagami never mentions coal.

It does, however, state the city has the right to apply its own regulations adopted after the agreement was signed if there is “substantial evidence” the project would place nearby residents in a “condition substantially dangerous to their health or safety.”

How “substantial” the danger of coal dust is to the West Oakland community will be at the crux of the trial.

West Oakland has a disproportionately high rate of respiratory illness and other physical ailments linked to its close proximity to the Port of Oakland, as well as truck and rail traffic.

A September 2015 report by Tagami’s firm said the $260 million facility would minimize pollution by using covered rail cars, underground transfer compartments and enclosed conveyor systems for moving coal from trains to ships.

Lawyers hired by Oakland city officials argued in court last Wednesday that the proposed technologies  are either ineffective or not even in use by the industry.

The disagreement over potential health and safety controls was aired during the hearing with Judge Chhabria expressing skepticism about the technology outlined by Tagami’s attorney, Robert Feldman.

The judge acknowledged the dangers of coal dust and said the city has a right to “police” the health and safety of its residents. But he said he wants the city to provide more information demonstrating how substantial the danger is relative to other projects.

“What seems to be missing is how big a deal is this,” said Chhabria.

Opponents of Tagami’s project maintain no level of coal dust is acceptable to a community already suffering from heavy industrial pollution. The city cites several reports backing that assessment- though the judge questioned the science behind one of them, an analysis by Environmental Science Associates, which concluded the terminal would worsen air quality.

California Attorney General Xavier Becerra filed an amicus brief on behalf of the city citing West Oakland’s poor health outcomes, including high rates of asthma, congestive heart failure and shorter life expectancy rates.

Erica Maharg, an attorney with San Francisco Baykeeper which also wrote an amicus brief backing Oakland, says she’s confident the city made a “well grounded decision” to protect its residents who are “already overburdened with pollution.”

The trial is expected to last several days.