City of Richmond, Richmond Mayor and Sierra Club will fight

East Bay Times, by Annie Sciacca, March 13, 2020

RICHMOND — Nearly two months after the City Council approved an ordinance that bans the storage and handling of coal and petroleum coke in Richmond, multiple companies that handle and export those products have sued the city in federal and state courts.

The ordinance phases out coal and coke operations within three years.

Three companies — the Levin-Richmond Terminal Corp., which manages the only coal-handling facility in the city, coal export firm Wolverine Fuels and Phillips 66, which manufactures petroleum coke and exports it through the Levin Terminal — allege the ban violates their constitutional rights.

Coal and petroleum coke shipments make up more than 80 percent of Levin-Richmond Terminal’s business, according to executives at the company. The coal is mostly shipped to Japan and petroleum coke to other countries for use in manufacturing.

While city documents about the ordinance acknowledge Richmond cannot regulate the transport of coal or petroleum coke, banning the storage and handling of coal and petcoke at the Levin Terminal effectively forces out the coal trains.

Because of that, Levin’s lawsuit, filed in federal court last week, calls the ordinance “an improper exercise of police powers” and contends it “violates Constitutional protections and unduly burdens interstate and foreign commerce, is preempted by federal law, violates Constitutional protections against taking of property and business interests, impairs Levin’s Constitutional rights to due process, equal protection and contractual relations, and is arbitrary, capricious and unlawful.”

Federal lawsuits by Wolverine Fuels and Phillips 66 make similar arguments. The companies also allege the city has not shown sufficient evidence to support its claims that the handling of coal and petcoke is bad for residents’ health.

When coal is put in open-air piles, its dust containing poisons such as arsenic, mercury, cadmium, vanadium and chromium is swept around San Francisco Bay, according to environmental advocates with the Sierra Club. The toxins can cause cancer, birth defects and neurological harm, and microscopic particles can inflame lungs and find their way into blood to cause heart and lung disease, diabetes, low birth weight and other illnesses, Sierra Club documents say.

Phillips 66, Wolverine and Levin point to the results of an air monitoring test done over the summer by Sonoma Technologies that suggest their activities don’t harm the community. The Phillips 66 lawsuit says there is “no scientific basis for concluding that fugitive dust from the storage and handling of petcoke at the Terminal posed any health risks or environmental impacts.”

But an evaluation from researchers at UC Berkeley and Belvedere Environmentals posted by advocates of the coal ban disagree.

The particle levels in downtown Richmond are “are definitively associated with increases in: premature death (life expectancy of residents is 7 years shorter than residents of the hills), ischemic heart disease, asthma attacks (incidence in one downtown census tract is higher than 99% of all California census tracts), lung disease (cancer, pneumonia, and bronchitis), dementia, stroke, preterm births, diabetes, and metabolic syndrome,” the researchers wrote in a Nov. 2019 assessment.

The lawsuits against the city are not a surprise. Levin-Richmond Terminal Corp. president Gary Levin warned the council in a July letter that adopting the ban could lead to closure of the terminal and the loss of 62 jobs, and that the company might sue. Wolverine Fuels, which exports thermal coal to Japan using the terminal, also threatened to sue in a letter to the council.

In addition to the three federal suits filed by each company against the city, at least two more petitions — from Levin and Phillips 66 — appear in state court records in Contra Costa County.

Calls to the acting Richmond city attorney were not returned, but Richmond Mayor Tom Butt has expressed concern over the potential costs of fighting the lawsuits, which he expects to top $1 million.

Butt said he was expecting help in fighting the lawsuits from the Sierra Club, which lobbied for the coal ban and helped draft the ordinance. But the Sierra Club maintains it never promised to indemnify the city or pay the legal costs.

“I voted for it, I supported it. They were all over Richmond — lobbying city council members. They started this whole ‘no coal in Richmond’ movement. They drafted the ordinance, assured everyone it was no problem — ‘they may sue us but we’ll win’ — but we’re looking at spending over a million to defend this,” Butt said. “Richmond is not a rich community. We struggle with our budget. I kind of resent the fact they put us out front on this.”

A video of a December council meeting shows Sierra Club’s  Aaron Isherwood and Butt discussing potential litigation over the lawsuit. While Isherwood said he can’t promise to cover legal costs — “the city will have to hire its own attorneys” — he added “we will hire attorneys to help defend.” He also said the Sierra Club has “already expended considerable resources” to help the city on the coal ordinance.

Butt said Thursday, “The message was murky, but I took it to mean that they’ll be there for us.”

“In Oakland after the City Council passed its coal ordinance, Sierra Club has been there every step of the way as intervenors,” Isherwood said in a written statement. “When Mayor Butt first approached us to ask about the Sierra Club funding the City of Richmond’s legal costs, we made it clear that we don’t have those kinds of resources to offer, but that we would back the City up in court as intervenors. We will do so, and we remain committed to supporting Richmond and this community in their fight to protect families from the impacts of coal dust.”