Oakland City Council Votes to Ban Storage and Handling of Coal Throughout City of Oakland

OLYMPUS DIGITAL CAMERALast night, the Oakland City Council passed a resolution (San Francisco Chronicle’s website, East Bay Times) banning the storage and handling of  coal within city limits.  Most importantly, the City Council  is applying the new ordinance to the pending construction of a bulk goods terminal at the Port of Oakland.  The resolution/ordinance does not appear to be available on the Council’s website, yet, but the agenda with the title of the resolution is available here.

The construction of the coal terminal has been quite controversial for a number of reasons.  It would facilitate the export of coal mined in Utah to overseas markets in the Pacific region. Environmentalists see this as encouraging the continued use of coal, with attendant negative consequences for global climate change through the carbon emissions from burning them. The issues are very similar to those associated with the Keystone XL pipeline in recent years. That pipeline was passionately opposed by environmentalists because it would have facilitated the development and use of Canadian tar sands, significantly expanding market access to a very dirty fossil fuel and making it that much more difficult to dial back global GHG emissions.

Another concern has come from the environmental justice implications of this project.  Local environmental justice activists have noted the likely negative health consequences that could result from the potential steady stream of coal trains going through low-income and minority communities.  Fugitive coal dust coming from the coal trains could have serious effects on local air quality.  While the project proponents have denied such impacts, a recent Environmental Science Associates report commissioned by the City Council seemed to confirm these fears.  The mayor and city council have previously stated that they did not know (or were misled) about the anticipated use of the terminal for coal exports when they first entered into the agreement in 2013.

Interestingly, the West Oakland Environmental Indicators Projects, which has also worked against the coal terminal development, sent a letter to the Department of Interior and the Utah Attorney General suggesting that the project may be in violation of Title VI of the Civil Rights Act of 1964.  Under Title VI, recipients of federal funding are prohibited from engaging in discrimination on race, color and national origin. In addition, the regulations of many federal agencies also prohibit actions by fund recipients that merely have a discriminatory effect (rather than being purposefully discriminatory).  The letter suggests that there is a sufficient federal funding nexus to trigger Title VI prohibitions, but it is difficult for me to tell without more information.

Even though the Oakland City Council’s action last night was cheered by activists, the developer threatened that they would not give up.  There will likely be breach of contract claims.  Moreover, the Council’s attempt to block shipments that would transit Oakland on their way abroad raises the question whether this might run into trouble with the Constitution’s commerce clause, a provision that limits the ability of state and local authority to regulate interstate and foreign commerce.  (There is also the question whether there are applicable Department of Transportation regulations regarding such shipments.)

One thing is clear though — this is not the last we have heard of this issue.

 

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