Yesterday, the Merc’s A’s beat scribe Shayna Rubin reported on some important legal news: Judge Noel Wise of Alameda County Superior Court threw out the case levied by a coalition of shipping and trucking interests and Schnitzer Steel against the Howard Terminal project. Judge Wise opined:
“…It would be a perverse outcome if the Howard Terminal Project could not advance pursuant to a valid and operable statute because that statute includes a reference to the potential application of the guidelines for another statute that is no longer in effect.”
The judge hinted she might rule in this direction towards last month, and the ruling follows suit. Judge Wise effectively said that because Howard Terminal was passed under the auspices of AB 734, it was not subject to the deadline specified by AB 900, which expired at the end of 2019. Not meeting the deadline was the crux of the lawsuit.
So, full steam ahead, then? Not so fast.
The first step will be the release of the oft-delayed and long overdue EIR Draft, hopefully in the next few weeks. The point of AB 734 was to allow for fast tracking of the CEQA process, allowing approved projects to settle legal challenges in no more than 270 days. That period would be concurrent with the actual EIR approval process, which legally should take 45-60 days but in large project reality never does. Both the A’s and opponents are getting ready to file responses to the Draft, which will be long and likely tedious, albeit necessary.
A’s President Dave Kaval admitted that the A’s timeline for the project has slipped:
“How far it slipped, I can’t answer that. I don’t know yet. It depends on if the city can even get this to a vote this year. It depends on the other priorities the city council might have.”
It also depends on how the numbers work out for the A’s. The pandemic took the wind out of the economy in multiple ways. There’s a lot of uncertainty moving forward about how the commercial real estate aspects of the Howard Terminal plan pencil out. Who’s not hurting? The shipping industry, which has been going gangbusters since the pandemic unleashed this perverse economic transformation.
If their interest is in the status quo, it’s in the best interest of the shipping industry to use that entire 270 days. It’s my sincere hope that they don’t. I would rather all the parties hash out a working agreement like all businesses, government, and community groups can and do. Can the Port of Oakland force the opponents to the table? Or will the opponents continue to lawyer up and let the chips fall where they may?
Not to be lost in this is a $4.1 million settlement worked out last week by California’s DTSC (Department of Toxic Substances Control) and Schnitzer Steel. Schnitzer has been the proxy for the shipping interests all this time, though it was caught up in its own legal wrangling over the numerous fires that spewed toxic black smoke around West and Downtown Oakland. The settlement has a few knock-on effects. Does the settlement and the prescribed remedies help or shield Schnitzer in the A’s lawsuit against the DTSC? That might be for yet another court to decide. Do the A’s try to partner with Schnitzer to enhance the remedies? To me that would seem like the best case scenario, though it would also require an acknowledgment that both can co-exist as neighbors.
The A’s filed their initial development application for Howard Terminal in November 2018, after six months of lobbying and legislation paved the way for it. Kaval is right in that the City Council shouldn’t be expected to vote on this project in 2021 with far more pressing issues on the table. It would be nice to see, however.
Unlike early 2019, when there was an all-out PR and media assault to sell the project, there won’t be quite the same effort in early 2021. Any momentum for Howard Terminal has to be built up again over time with a more clear-eyed vision (and less confusion over the details). I know Kaval has the stomach for that battle.
Does John Fisher? 🧐
P.S. – In an addendum to Rubin’s original story, the port interests are – guess what? – lawyering up. See you in Appellate Court.
P.P.S. – Kaval celebrates Governor Newsom’s certification of the project streamlining, which is not the same as certifying the full EIR (that comes later).