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As expected, the Howard Terminal lawsuits have arrived. This past week, two railroad companies and a coalition that includes longshoremen, shipping merchants, and trucking associations filed legal actions against the Oakland A’s waterfront ballpark and mixed-use development proposal.
The lawsuits challenge the adequacy of the project’s environmental review, which the City Council approved in February. They center on fundamental concerns that any proposed development at Howard Terminal would inevitably slam up against: rail and maritime safety and potential increases in air pollution caused by the displacement of diesel trucks.
The working waterfront, which is represented by the groups who sued this week, views the $12 billion project as an existential threat. Boiled down, the arguments for and against the A’s proposal center on the soul of the waterfront and the effects this massive project could have on surrounding neighborhoods.
The 55 acres in question, which are currently being used as a staging area for diesel trucks coming to and from the port, have come to represent the future of the waterfront, and whether it should remain a functional feature of port operations or become a glitzy, privately-financed entertainment district with a baseball stadium.
“The project in and of itself represents the question not just for the city, but the region and state, about whether or not you want to have a growing and industrial seaport in Oakland,” said Mike Jacob, the vice president of Pacific Merchant Shipping Association, a party in one of the lawsuits. “Instead of dealing with [unresolved issues] head on and being honest about the constraints of the site, the A’s and the city are content to put their head in the sand and not dealt with what’s in front of them.”
In an interview with The Oaklandside, A’s president Dave Kaval pushed back on the argument that converting Howard Terminal would erode port operations.
“It’s two percent of the port property at the edge,” Kaval said. “Are you going to tell me the city of Oakland is going to turn down a $12 billion investment to have idling diesel trucks? Let’s call it for what it is. There is no existential crisis on the port, no risk of maritime or longshoreman jobs. Their argument is a complete fallacy.”
Mayor Libby Schaaf’s administration said the lawsuits came as no surprise.
“The litigation was expected as the parties made it clear they intended to file suit long before the EIR process was ever completed,” Schaaf’s spokesperson, Justin Berton, said in a statement. “The city stands by the integrity of its process and analysis culminating in the certification of the EIR by the City Council.”
Berton’s statement added that members of the Oakland Planning Commission, who recommended council approve the EIR, called the environmental review “rigorous, thorough, and transparent.”
Some residents in nearby West Oakland and Chinatown have worried about the potential of the project gentrifying their neighborhoods by driving up the cost of housing. They’ve also raised concerns about how much affordable housing the A’s will commit to.
Eunice Kwon, a board member with the Oakland Asian Cultural Center and a member of the Chinatown Coalition, a broad group of residents, neighborhood-based businesses, and churches, told The Oaklandside that while Chinatown residents have varying views, a common concern is that Chinatown was not considered within the scope of the project’s environmental review, although it’s only about a mile away.
“Chinatown is a huge practical asset to our community. It’s where our elders get their health care. It’s where we have our youth centers,” Kwon said, saying traffic congestion is a top concern. “We all know this area of Oakland has been under-invested in. It’s not that we don’t want change or investment, but the ways the A’s have approached this development deal has not shown they are willing to do the bare minimum to be a good partner to the city.”
Who is suing and what do they want?
Monday, April 4, was the deadline to file legal challenges to the environmental impact report approved by City Council, under the California Environmental Quality Act.
Three separate lawsuits were filed in Alameda County Superior Court on Monday by Union Pacific Railroad, the Capitol Corridor Joint Powers Authority, and a coalition that includes the East Oakland Stadium Alliance, Pacific Merchant Shipping Association, Harbor Trucking Association, California Trucking Association, metal-shredding company Schnitzer Steel Industries Inc., and the International Longshore and Warehouse Union.
The city of Oakland, the Port of Oakland, and the Oakland A’s are listed as defendants in each case.
Union Pacific owns three rail lines that cut through Jack London Square, and Capitol Corridor Amtrak uses these tracks to carry rail passengers, with a station in the square. Each week, Capitol Corridor runs 30 weekday and 22 weekend passenger trains, while Union Pacific runs about 15 freight trains a day. According to Union Pacific, there’s a busy rail yard directly in front of Howard Terminal, where freight trains stop and crews perform a “switching” operation that takes 10 to 45 minutes.
It is estimated that the Howard Terminal development would bring millions of visitors to this area each year. A’s owner John Fisher is proposing building a 35,000-seat ballpark, 3,000 homes, hotel rooms and retail stores, restaurants, parks, and other entertainment designed to draw people to the site. Howard Terminal is located at the end of Market Street, west of Jack London Square, and bordered by rail tracks.
The railroad companies’ lawsuit alleges the environmental review done by the city fails to adequately analyze public safety risks associated with a far greater number of vehicles and people on bicycles and foot crossing these tracks. All of the crossings from Market Street to Oak Street are currently “at-grade,” meaning people have to walk across the tracks to get in and out of Jack London Square.
Union Pacific has consistently called for full grade separation if the project is built, meaning bridges or tunnels keeping drivers and pedestrians away from trains. An initial study by the city concluded that that would be “infeasible” because getting the needed approvals and building what Union Pacific has in mind would delay construction of the ballpark too long and isn’t within a “desirable timeframe to maintain the Oakland Athletics’ competitive position within MLB.”
The city’s environmental impact report, known as an EIR, does include an alternative plan to build two rail overcrossings, one for cars and another for pedestrians and bicyclists. The Union Pacific and Capitol Corridor suits challenge the adequacy of the EIR. They say city planners evaluated only two of the eight total crossings and did so over the course of just one week, not enough time for a proper survey in the companies’ view.
The lawsuits also allege that the approved EIR postpones required safety measures and punts them to future decisions.
The EIR also suggests putting up fencing and using police or crossing guards on baseball game days. Kaval said the rail crossings in Jack London Square are unsafe and asserted that the project would improve the current situation.
Similarly, the lawsuit filed by the coalition of port industry workers claims the City Council adopted inadequate findings and improperly rejected alternatives to mitigate the project’s potential impacts. It claims there are deficiencies in the study pertaining to air quality and greenhouse emissions, hazardous material clean up, land-use conflicts including incompatibility with port operations, and traffic congestion.
“The EIR in numerous instances improperly defers environmental analysis and the identification of mitigation measures to future agency plans, actions, and approvals,” the lawsuit states.
What’s next for the lawsuits—and beyond?
The California Environmental Quality Act allows for opponents of a development project to challenge an environmental impact report in court, and many large projects face legal challenges. Normally, these lawsuits could tie up a project in courts for multiple years.
The A’s, the city of Oakland, and others have expected these lawsuits almost since the beginning. Anticipating this, a state law was passed in 2018 specifically to streamline the litigation process for the A’s, despite opposition from the Sierra Club and the Judicial Council of California, the policymaking body of the state court, who argued that giving special treatment to a single project undermines the fairness of the entire system.
Under AB 734, which was authored by former Assemblyman Rob Bonta, who is now the state attorney general, any lawsuits challenging the environmental impact report would have to be decided within 270 days of the report getting approved. That puts the court process on a timeline of nine months from now, or January 2023.
Meanwhile, the A’s and the city continue to negotiate a development agreement outlining the financial terms and conditions of leasing Howard Terminal. Those terms are expected to come before the City Council this summer, and would provide more detail on infrastructure needs and what community benefits are being provided.
The San Francisco Bay Conservation and Development Commission is expected to vote in June on whether the property can be used for activities other than port and marine operations.
The Department of Toxic Substances must decide whether or not to sign off on the team’s plan to clean up potentially hazardous materials found on the site.
Various city commissions and committees will review the design aspects, permits, rezoning of the area, amendments to the city’s general plan, and other land use approvals. The project will ultimately return to the Planning Commission and City Council for final approval. Separately, the Port of Oakland, which has its own commission, must approve a master lease that would give the A’s control of the land.
The project’s community benefits agreement, a key part of the development agreement, is still under negotiation. Community groups, such as the West Oakland Environmental Indicators Project and Oakland Asian Cultural Center, have been meeting with city staff and A’s consultants over the past couple of years to determine the structure of the fund, what the money should be used for, and what mechanisms should be in place to provide oversight.