In his ruling last week, Chhabria announced he would hear evidence this week only on the breach of contract claim in Tagami's suit and consider the constitutional and federal law issues later, "if necessary."
While Tagami's complaint states the Oakland Bulk and Oversized Terminal would transfer bulk commodities that could include coal, his company's original development agreement with the city never mentions coal.
The agreement 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 is intervening on Oakland's side in the case, says she’s confident the city made a “well-grounded decision” to protect residents who are “already overburdened with pollution.”
The trial is expected to last several days.
