City’s coal ban might interfere with commerce, US judge rules

The city of Richmond's ban on the handling and storage of coal and petroleum coke might illegally interfere with commerce and have been based on flawed science, a federal judge ruled.

Months after an appellate court upheld a decision to overturn similar legislation in a neighboring city, U.S. District Judge Yvonne Gonzalez Rogers allowed a trio of lawsuits challenging the Richmond ordinance to proceed.

Richmond passed an ordinance, which was met with multiple lawsuits, in February banning the storage and export of coal and petroleum coke on city-owned property to "reduce the public health, safety, or welfare impacts" caused by the "release of pollutants into the environment." Levin Richmond Terminal Corp. v. City of Richmond, 20-cv-01609 (N.D. Cal., filed March, 4, 2020).

The Thursday ruling came on the heels of the 9th U.S. Circuit Court of Appeals affirming in May a San Francisco federal judge's order refusing to let Oakland ban coal shipments from a new terminal. The city similarly tried to prohibit the pollutants, arguing asthma and cancer would affect mostly disadvantaged communities. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 16-cv-07014 (N.D. Cal., filed Dec. 7, 2016).

In the order on the motion to dismiss, Rogers upheld most of the claims from plaintiffs Levin Enterprises, Wolverine Fuels Sales and Phillips 66.

Weighing the health benefits of the city's ban against alleged impacts to interstate commerce, the judge said Richmond's safety justifications for the ordinance must be vetted. She cited claims in the complaint that the Richmond Planning Commission was against the ordinance and that data the city relied upon was "riddled with scientific errors."

"While the court must give appropriate deference to the Legislature's judgment, it is not a rubber stamp for the city's adoption of the ordinance," she wrote.

On foreign commerce claims, Rogers agreed with plaintiffs that the denial of plaintiffs' access to the terminal could halt the shipment of coal and petcoke overseas. This would, she said, infringe on the federal government's exclusive authority to regulate foreign commerce.

"Congress has declared that the 'continuing policy of the federal government in the national interest [is] to foster and encourage private enterprise in the development of economically sound and stable mineral industries," she wrote.

Richmond maintained that Congress has not articulated a specific policy requiring uniformity in the trade of the products.

The Richmond city attorney's office and plaintiffs' attorneys at Farella Braun & Martel LLP did not immediately respond to requests for comment.

Gonzalez also allowed two environmental organizations, San Francisco Baykeeper and Sierra Club, to intervene in the case. They will file joint motions with attorneys for the city of Richmond.

Sierra Club attorney Aaron Isherwood emphasized in a statement the ordinance is "especially important now, given the scientific studies that link higher levels of air pollution with greater susceptibility to COVID-19."

"Following a major community effort to address the coal and petcoke dust that has afflicted residents at home, at work, and at school for years, the city made a responsible decision to phase out coal and petcoke handling in order to protect public health," the statement reads. "We look forward to helping the city defeat the lawsuits."