Tag Archives: Benicia City Council member Alan Schwartzman

MARILYN BARDET: Valero delay tactic – unnecessary interference in local politics

Guest Editorial by Marilyn Bardet, March 16, 2016

Valero delay tactic – unnecessary interference in local politics

Marilyn Bardet
Marilyn Bardet

Last night, March 15th, the first hearing of the Benicia City Council was held on Valero’s appeal of the unanimous vote of the planning commission to deny certification of the final EIR and the proposed Crude By Rail Project, a permit for which would allow construction of a rail terminal on Valero property that would serve to off-load two 50-car trains each day loaded with domestic shale oil and/or Canadian tar sands.

After the staff gave its usual synopsis of Valero’s proposal, the planning commission’s chair, Don Dean, gave an excellent overview of the commission’s work over three years of public review, summarizing the arduous process, first begun in 2013, when the public and commissioners questioned City staff’s recommendation to adopt a grossly flawed Initial Study /Mitigated Negative Declaration. The commission’s inquiry continued following the drafting of a full EIR in 2014, that was then followed by review of a Revised EIR in 2015 — all of which entailed long hours of public hearings and study of volumes of written comment letters from Benicia residents and comments and testimony provided by public agencies, environmental organizations and government representatives. (See beniciaindependent.com/project-review/ for links to the public record.)

After Don Dean’s presentation, it was Valero’s turn to present their appeal. In all previous testimony, and in their official letter of appeal, which had been submitted to the City in the wake of the final planning commission hearing in February, Valero has asserted that under federal preemption, requirements of the California Environmental Quality Act (CEQA) would be superseded, hence that any impact evaluations or determinations regarding mitigations directly or indirectly involving rail would be considered irrelevant and unenforceable. In their appeal letter, Valero went so far as to describe the commission’s decisions for denial as representing an “abuse of discretionary powers”, insisting that commissioners had virtually ignored the full authority of federal preemption.

Thus, it was to be expected that Valero’s Don Cuffel would repeat “the Valero basics” about why the Project would be safe and economically beneficial, while pointing to what Valero considers the various errors of “the opposition”, including those representing opposing legal views presented in the course of public hearings.

But the twist came when attorney John Flynn took the podium and surprised the council, city staff and the public by announcing that Valero was now recommending “a delay” in the appeal process they’d initiated, to allow time for them to petition the federal Surface Transportation Board (STB) for the agency’s perspective on the scope of federal preemption law governing rail operations. They admitted the delay could take at least three months.

Under the dubious premise that delaying their appeal would benefit everybody, Valero argued that getting an opinion from the STB would “help” the City make the correct decision with regard to the limits of their jurisdictional authority imposed by preemption.

But what kind of ‘benefit’ would delaying the appeal process really represent, given that Valero claims that preemption essentially neuters our city council’s authority and obligation under CEQA to protect the health and safety of residents, and thus to uphold most important goals and policies of the Benicia General Plan?

Council members Mark Hughes, Christina Strawbridge, Alan Schwartzman and Tom Campbell, and Mayor Patterson, each questioned why Valero had not petitioned the STB previously, when either the Draft EIR or Revised EIR were being developed. Valero didn’t seem to have an answer.

But “politics” are in the air, and Valero Energy Corp, headquartered in San Antonio TX, is now gambling politically, apparently seeking to produce what could be considered a “pre-trial” test of their own legal opinion on preemption right at the time of our local elections. Interference in local politics in order to push permitting of their dangerous Crude By Rail Project is not acceptable and must be challenged!

Make no mistake: Valero hopes to bank on setting a precedent, right here in Benicia, that would affect municipalities of every size and stripe across California and the US seeking to protect their communities from the risks of dangerous oil trains plowing through their urban cores and rural landscapes.

Valero’s “recommendation for delay” is a bald political tactic:
• Delay is NOT necessary for the City Council to reach an informed decision on the Crude-By-Rail Project;
• Delay does NOT serve City staff or the public;
• Delay ONLY serves the financial and broad political interests of Valero Energy Corporation.

Please come to the April 4th council hearing to voice your concern:
• To support the authority and requirements of CEQA — for the public’s right to full disclosure of impacts, for enforceable mitigations and feasible project alternatives;
• To support our planning commission’s consensus judgment resulting in a unanimous vote to deny certification of the Final EIR and deny the project permit;
• To support the authority of our City to protect our community’s health and safety and uphold the Benicia General Plan;
• To deny Valero’s appeal and audacious corporate attempt to interfere in local politics for their own gain.

— Marilyn Bardet, Benicia

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    Benicia Mayor Elizabeth Patterson asked to recuse herself from Valero crude-by-rail decision

    Repost from The Vallejo Times-Herald
    [Editor:  It’s sad that some would try to silence Mayor Patterson since she has carefully avoided coming out publicly or privately against Valero’s project.  The good news here (lemons to lemonade) … the City Attorney’s challenge, once denied, should open the door to EVERY Council member to speak more freely in addressing important issues outside of Council chambers and prior to decisive votes.  More public debate on the part of all on the Council and various Commissions, boards and committees will be good for Benicia.  – RS]

    Benicia: Mayor Elizabeth Patterson asked to recuse herself from Valero crude-by-rail decision

    Elizabeth Patterson rejects city’s advice, hires attorney
    By Tony Burchyns, 10/13/2014

    Benicia Mayor Elizabeth Patterson

    BENICIA>>Mayor Elizabeth Patterson is claiming that the city is trying to muzzle her on public policy questions related to plans to increase crude oil train deliveries to the Valero refinery.

    Patterson revealed to the Times-Herald the city attorney has advised her not to participate “in any way in any city decisions” relating to Valero’s pending permit decision. Patterson also said the city has asked her to refrain from sending out “e-alerts” about the project and related crude-by-rail issues and to not engage in public discussion of the matter.

    “I feel the city is trying to muzzle me on my questions and alerting the public on major public policy issues of crude-by-rail, fossil fuels, public safety and environmental air, water and habitat hazards,” Patterson said in an email. She said she has rejected the city’s advice and hired a lawyer to defend herself against what she views as an attack on her free speech rights.

    City Attorney Heather Mc Laughlin declined to comment the matter, citing attorney-client privilege. However, Mc Laughlin said a handful of community and City Council members had raised conflict-of-interest concerns about Patterson’s engagement in the public discussion of the controversial project. She wouldn’t say which council members raised concerns.

    Council members Alan Schwartzman, Mark Hughes, Christina Strawbridge and Tom Campbell declined to comment.

    Valero is seeking permits to build a rail terminal to receive up to 1.4 million gallons of crude oil daily by train. The city is in the process of responding to dozens of comment letters on the initial environmental impact report from residents and state and local agencies.

    Patterson, who has served on the City Council since 2003 and as Benicia’s elected mayor since 2007, regularly communicates with residents on a wide variety of issues. In particular, she sends periodic “e-alerts” to people who have asked to be on her email list.

    This year, several of those communications have included information regarding the city’s review of Valero’s pending land-use application as well as discussions of public policy issues raised by the proposed increase in oil train traffic.

    In March, Patterson – a retired state environmental scientist working part-time on the California Water Plan – wrote a San Francisco Chronicle op-ed encouraging Gov. Jerry Brown to issue an executive order to ensure the state is prepared to deal with “highly flammable and explosive Bakken crude oil from North Dakota coming by rail and water into California.”

    In June, she testified with other officials at a legislative oversight hearing in Sacramento about state and local agencies’ preparedness to respond to oil train accidents like last year’s explosive derailment in Lac-Megantic, Quebec, which killed 47 people. She didn’t comment at the hearing on the merits of Valero’s project.

    In a letter to the city, Patterson’s attorney Diane Fishburn defended the mayor’s right to communicate with her constituents and participate in the public discussion. Patterson disclosed the June 26 letter in response to a recent Times-Herald inquiry about thousands of dollars in legal expenses on her latest campaign finance report.

    “The law fully supports the mayor’s complete participation in both the public community discussions and her activities in her role as mayor as well as in any decisions which may come before the council on the project,” Fisburn wrote. She cited a 1975 state Supreme Court ruling that held that the public statements of two Fairfield City Council members opposing a proposed shopping center did not serve to disqualify them from participating in the city’s decision on the project.

    “These topics are matters of concern to the civic-minded people of the community, who will naturally exchange views and opinions concerning the desirability of the shopping center with each other and with their elected representatives,” the court wrote at the time. “A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views of public importance.”

    In that 1975 decision, the court also quoted a 1958 New Jersey Supreme Court ruling that stated “it would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn … duties.”

    Fishburn argued Patterson has not made public statements or indicated a specific position on the pending project. “However, even if she had expressed views on the pending Valero permit, it is clear based on (related case law) that this wouldn’t disqualify her from participating in the on-going proceedings and in future City Council decisions in the matter,” Fisburn wrote.

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