Benicia Mayor: Public comment period closed – now what?

From an email by Benicia California Mayor Elizabeth Patterson
November 5, 2015

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Public Comment Period Closed on Recirculated Draft Environmental Impact Report for Valero Proposed Crude by Rail Project. 


What happens next?

Last week the extended Valero Crude by Rail Recirculated Draft Environmental Impact Report (RDEIR) public comment period closed.  People are asking, “now what?”.

Following are some of the scenarios that could happen.  The list is in no way indicative of my thoughts or opinions and I have not asked for validation of any of the following scenarios by city staff.  But the list does represent some of the questions and scenarios being asked by the public.  I anticipate these kinds of questions will be raised at the Planning Commission hearing on the FEIR and project.  I take full responsibility for any errors and will correct such in future e-Alert update on Crude by Rail.

Scenarios:

1.  The staff and environmental consultants will estimate the work needed to respond to all the comments on both the original draft EIR and the RDEIR and advise the applicant.  If applicant agrees to proceed, the responses will be in the Final Environmental Impact Report  for consideration by the Planning Commission.

Or the applicant could appeal the staff decision.  I believe the appeal would be heard by the Planning Commission.  If they agreed with staff, the applicant could appeal to Council seeking relief from the staff and PC decision.  There would be no work done until the appeal is heard or the applicant agrees to fund the response document.  Read further for other permutations of further “delay”.

2.  If applicant agrees to proceed, the responses will be in the Final Environmental Impact Report  for consideration by the Planning Commission.

The public can comment at the Planning Commission FEIR hearing or in writing prior to the public hearing.  Generally, good practice is  staff (consultants) respond at the FEIR hearing which can be verbal or the item can be continued for written response though technically this is not like the draft EIR process.

Staff, consultants and outside attorney would prepare findings to be considered by the Planning Commission.  In the past for other projects the city sometimes has provided both possibilities for findings:  findings that the FEIR is adequate or findings that it is not.  The Planning Commission can find the FEIR adequate to decide on the project.  The Planning Commission could find that the FEIR is an adequate – though not a perfect assessment of the physical effects on the environment – and approve or deny the project.

The Planning Commission could find that the FEIR is not adequate for a decision to approve or deny.

Conventional wisdom is that either decision would be appealed.

3.  There can be an appeal at any step described above including decisions by staff and Planning Commission.  Appeals of staff go to the Planning Commission and their decision can be appealed to the City Council.  If any appeal moves forward, the City Council would have public hearing on any of the staff decisions and/or Planning Commission regarding the FEIR and the project.  The City Council could uphold the decisions of the staff and/or Planning Commission as in scenario #2 or not.

Depending on these actions and decisions there could be legal action.  Until legally decided, there would be no work done to advance the project process and staff time and effort would be to respond to legal action.

5.  Some experts and written opinions from the federal Surface Transportation Board and some legal opinions assert that if the California Environmental Quality Act (CEQA) causes undue delay in rail transportation, that the feds could act preemptively and “overrule” CEQA.  Others suggest that that does not apply to local land use permits.  Others may have more information on how this process would work.

6.  City Council could certify the FEIR and deny or approve the project.  Conventional wisdom is that there would be a lawsuit challenging the decision based on CEQA and local permitting process.  The city is indemnified by the agreement with the applicant, meaning the applicant pays for all legal defense.  Some lead agencies hire the defense attorneys and the applicant pays for the defense.  Other lead agencies have been known to let the applicant choose the attorneys and pay directly for the defense.  The city is the lead agency.

7.  The applicant chooses not to pay for the defense of the CEQA document and land use permit law suit.  City stops the processing and defense.  There is a time factor involved in CEQA lawsuits.

The best place to get accurate current information on the process is with staff.  To get started, click here.  Another source is the Benicia Independent which is editorially opposed to the Crude by Rail project and selective about letters but does provide links that are easier to access.  It is also a comprehensive source of current news.  There is no comparable site in favor of Crude by Rail.  Stay tune for developments in this area.

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