Attorney General Becerra Files Amicus Brief in Support of Oakland's Authority to Protect Environmental Justice Communities

Monday, July 20, 2020
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SACRAMENTO – California Attorney General Xavier Becerra today filed an amicus brief in the Ninth Circuit Court of Appeals, continuing his longstanding support of the City of Oakland’s ordinance prohibiting the storage and handling of coal and petroleum coke within city limits. The City of Oakland passed the ordinance in July 2016 because of concerns about the health and safety impacts of coal, and the extent to which those impacts would be disproportionately borne by disadvantaged communities of color residing in West Oakland near a proposed large-scale coal transloading facility, the Bulk Oversized Terminal. The developers of the industrial facility – Oakland Bulk and Oversized Terminal, LLC – challenged the ordinance as a breach of its development agreement with the City.

“Industrial polluters and coal companies are hell-bent on jamming this project through, leaving West Oakland communities to pay the price with their health and lives,” said Attorney General Becerra. “It’s just plain wrong. These neighborhoods already bear a disproportionate share of environmental pollution and the resulting health risks. The City of Oakland has a legal right to put a stop to this nonsense, and we stand fully behind their efforts to protect their communities from hazardous pollutants."

In 2016, the Oakland City Council unanimously passed an ordinance prohibiting the storage and handling of coal and petroleum coke within city limits, citing the danger of toxic coal dust emissions to the health and safety of West Oakland neighborhoods. The ordinance was subsequently challenged in court. Upon review, the district court invalidated the ban as applied to the Bulk Oversized Terminal, and the Ninth Circuit Court of Appeals upheld the District Court’s determination. The City of Oakland now seeks en banc review of this decision and certification to the California Supreme Court to review state-law issues crucial to the original panel’s decision.

If the ordinance is invalidated, millions of tons of coal could be transported annually to the Oakland terminal for processing and subsequent shipment to countries around the world. Pollution from coal dust would impact environmental justice communities residing near and along the route to the Bulk Oversized Terminal that are disproportionately burdened by, and vulnerable to, multiple sources of air and other pollution, and that have higher than average rates of asthma and cancer.

In the amicus brief, Attorney General Becerra argues that en banc review by the Ninth Circuit Court of Appeals is appropriate so that the court can properly consider the unique nature of development agreements and a municipality's police power authority under California law to protect the public health and safety of its residents. Attorney General Becerra further asserts that the Ninth Circuit should certify this issue of first impression to the California Supreme Court for consideration of the proper framework to judge a breach of a development agreement claim related to Oakland’s exercise of its police power authority to protect its most vulnerable citizens.

A copy of the brief can be found here.

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