Court Denies Preliminary Injunction in CBE Lawsuit Against Pacific Steel

By Riya Bhattacharjee
Friday September 22, 2006

A Federal Court in San Francisco denied a request by Oakland-based environmental nonprofit Communities for a Better Environment (CBE) on Wednesday for a preliminary injunction against Berkeley-based Pacific Steel Casting (PSC) citing insufficient evidence that CBE would prevail on the merits of its arguments.  

The CBE lawsuit alleges that West Berkeley-based PSC violated the Air District’s permit with respect to the amount of emissions from the steel foundry in Berkeley. 

In an eight-page order denying preliminary injunction, Federal Magistrate Bernard Zimmerman wrote: “I cannot conclude that plaintiff demonstrates a likelihood of success in proving a permit violation.”  

With respect to CBE’s claim of serious health effects attributable to PSC emissions, Zimmerman wrote that although CBE establishes a potential for some harm to the community if an injunction is not granted, “the harm is not the type that would normally impel a court to grant the plaintiff’s request.” 

The judge further stated that although CBE alleges a link between defendant’s emissions and potentially serious health risks to those in the surrounding community, there was “little evidence to suggest that the consequences attributed by plaintiff to defendant’s emissions have materialized.” 

The judge also wrote that with respect to the complaint about odors from PSC’s operations, there was nothing to establish that the odorous emissions posed an “immediate threat to the environment to warrant a preliminary injunction likely to change the status quo.” 

Both parties were instructed by the magistrate to prepare for an “expedited” trial that he said could take place before the end of the year. 

Alan Ramo, an attorney with the Golden Gate University School of Law Environmental Law and Justice Clinic, representing CBE, said that although the court had not been ready to grant the injunction, it had spoken favorably for CBE. 

“The judge will be holding a status conference in a week’s time and we will get to know more about the trial then,” Ramo said. 

Pacific Steel spokesperson Elisabeth Jewell, of Aroner, Jewell and Ellis Partners, said that PSC had a union workforce of over 500 employees, 200 of whose jobs would have been eliminated had CBE prevailed. Jewell also said that based on what CBE had requested in its proposed order, PSC would have been forced to close down Plant 3 immediately. 

“Our workers and their families are relieved that the judge clearly saw they had no facts to back up their claims,” stated PSC Vice President Joe Emmerich in a statement. 

“Notwithstanding this significant victory, Pacific Steel is moving forward to install the carbon adsorption filter at Plant 3 as quickly as possible,” he said. 

Environmental groups such as cleanaircoalition.net, however continue to support CBE’s endeavors. 

“We have read the Court's decision, and while the immediate shut-down of Pacific Steel Casting (PSC) was denied, the Court agrees that the health and manufacturing issues in this matter are valid. We were there at the start of this suit and will continue to support CBE as they go to trial - with the watchful eyes and solid support of many citizens in Berkeley, El Cerrito and Albany,” commented cleanaircoalition.net founder Willi Paul, adding that watchdog groups were getting together for a mass protest and educational event against PSC in a few weeks. 

Environmental activist Steven Ingraham spoke about continued community support on the issue. “The community has several strategic organizational aspects to its plan to bring Pacific Steel Casting Co. to full compliance with all regulations. We are continuing to meet with and be advised by Bradley Angel of Greenaction. I also had a phone conference with Jack Broadbent of the Air District and we are awaiting the details on the community air testing funding.”