Appeals Court Doesn’t Stop Crude Oil Rail Shipments Through Richmond
July 19, 2016 9:22 PM
SAN FRANCISCO (CBS SF) — A state appeals court upheld dismissal of a lawsuit in which environmentalists sought to challenge crude oil rail shipments through Richmond.
A trial judge’s dismissal of the lawsuit was upheld in court Tuesday in San Francisco. The court said Communities for a Better Environment, known as CBE, and other groups missed a state law’s six-month deadline for challenging a lack of environmental review for the shipments.
A three-judge panel said the California Environmental Quality Act didn’t allow an exception to the deadline even though the groups said they couldn’t have discovered the project sooner.
“Ultimately, CBE’s arguments about the proper balance between the interests of public participation and of timely litigation are better directed to the Legislature, not this court,” Court of Appeal Justice Jim Humes wrote for the court.
The panel unanimously upheld a similar ruling in which San Francisco Superior Court Judge Peter Busch dismissed the lawsuit in 2014.
The crude oil is carried by the Texas-based Kinder Morgan energy company in railroad tanker cars from North Dakota’s Bakken shale formation to Kinder Morgan’s Richmond terminal, where it is transferred to tanker trucks.
The shale oil is extracted through hydraulic fracturing, or fracking, and horizontal drilling.
The environmental groups contend that shale crude oil, which is lighter than other types of crude oil, is dangerous because it is more explosive in the event of a derailment. They also say fumes emitted during the oil transfers harm human health.
The groups sued the Bay Area Air Quality Management District in March 2014 after discovering that the agency had quietly issued a permit for the project in July 2013 without requiring an environmental impact report.
The permit allowed Kinder Morgan to change its previous ethanol facility to the crude oil facility.
In addition to CBE, the plaintiffs were the Natural Resources Defense Council, Asian Pacific Environmental Network and Sierra Club. They were represented by the Earthjustice law firm.
They argued that a report should have been required under the CEQA law, while the air district and Kinder Morgan contended no report was needed because granting the permit was a ministerial rather than discretionary decision.
But the issue of whether there should have been an environmental report was never reached in court because Busch ruled, and the appeals court agreed, that the lawsuit was filed too late.
The appeals court said, “We acknowledge that if there were any situation in which it would be warranted to delay the triggering of a limitations period in the manner CBE urges, it would be one in which no public notice of the project was given and the project’s commencement was not readily apparent to the public.”
But the panel said that case law set by the California Supreme Court and other courts established that the Legislature made a “clear determination” that CEQA challenges must be filed within the deadline.
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.
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.
Public comments on Valero Benicia Refinery’s proposed project
By Irma Widjojo, 09/30/15, 6:14 PM PDT
Benicia >> In a special meeting that drew a large crowd Tuesday night, the Benicia Planning Commission received comments from concerned citizens on recently distributed documents on Valero’s proposed Crude-by-Rail project.
Many of those supporting the project wore a sticker on their clothing indicating their approval, while some of those opposing the project wore pins, brought signs and sported a sunflower — a symbol of environmentalism — at the Benicia City Council Chambers at City Hall.
The meeting, which began at 6:30 p.m. and lasted until about 10 p.m., was an opportunity for the public to submit verbal comments on the Revised Draft Environmental Impact Report, or RDEIR, of the project. Those who could not get a seat in the chambers, which has a 120-person capacity, were asked to wait for their turn to speak in an overflow room.
The RDEIR concluded that the project would cause “significant and unavoidable” impacts to air quality, greenhouse gas emissions, biological resources and hazards and hazardous materials. However, the report also adds “potential mitigation measures to reduce these new impacts would be preempted by federal law.”
A few speakers who were concerned with the project took issue with the federal preemption mentioned in the report. Federal preemption means federal laws displace state or other local laws.
“It has become a justification for the lack of mitigation,” Benicia resident Roger Straw said. Straw also is the editor of the online publication The Benicia Independent, which disseminates articles and information regarding crude-by-rail and Valero refinery.
Another Benician, Judith Sullivan, said “preemption makes it sound like we don’t have any choices.
“But grassroots efforts like this have been pushing the federal government to enact new environmental laws,” she said.
Representatives from Valero Benicia Refinery and Union Pacific, which would operate the railroad used for the trains hauling crude if the project is approved, also spoke during the meeting.
“This process has forged into a new territory and goes beyond what CEQA (California Environmental Quality Act) requires,” said Don Cuffel, Valero Benicia Refinery’s lead environmental engineer.
An attorney working with Valero on the application called the process “out of control.”
“We’ve lost sight of the city’s discretion,” said attorney John Flynn. The RDEIR, released Aug. 31, came after an outpouring of feedback from the public on the Draft Environmental Impact Report last year.
Valero Benicia Refinery applied for the permit for the project in early 2013.
If the project is approved, Valero will be allowed to transport crude oil through Benicia via two 50-tanker car trains, rather than shipping the crude oil by boat. It will not replace the crude that is transported by pipeline, officials said.
Concerns voiced on Tuesday about the RDEIR included conflicting information, conclusions based on assumptions and lack of details, among others.
Though the commission reminded the public that the comments should be limited to the redistributed report, instead of about the project in general, not everyone heeded the reminder.
“Valero is a powerful oil company that provides most revenue to this town,” a speaker said. “Are you going to let them get richer on the expense of the health and well being of the residents?”
Many supporting the project said Valero has “gone above and beyond” in the process to ensure the project’s safety, and called Valero a “good neighbor.”
However, that was not good enough of a reason for those in opposition.
“While Valero has been a good neighbor, we can’t be held hostage by what they have given generously to our city,” Anina Hutchinson said.
They also brought up issues about increased greenhouse gas emission, chance of derailment while carrying volatile crude and destruction of the environment in the area of the railroad.
Herbert Forthuber told the Times-Herald he supports the project because Valero is a major financial revenue for the city.
“I’ve seen in the past that when it’s not economically viable anymore for (a refinery) to be in a city, they close down,” Forthuber said, adding that it would be a blow for the local employees and other local businesses that depend on the refinery.
Forthuber is the vice president and general manager of a local business that repairs industrial machineries.
“The RDEIR really hasn’t changed my mind,” he said. “I’m more economically minded, and I care about the impact it would have for people who work for me.”
Valero officials have contended that the railroad addition would make the refinery more competitive by allowing it to process more discounted North American crude oil.
All of those who were present Tuesday were given an opportunity to speak, and the remaining three special meetings for this purpose have been cancelled.
Comments on the report may still be submitted in writing no later than 5 p.m. on Oct. 30.
Written comments should be submitted to email@example.com or Principal Planner Amy Million at the Community Development Department. For further information about the revised environmental report, contact Million at 707-746-4280.
The report can be reviewed at the Benicia Public Library, 150 E. L St.; the Community Development Department, 250 E. L St.; or online at bit.ly/1lBeeTt.
Following the end of the comment period, a final Environmental Impact Report will be released to the public.
During the meeting, Million said staff estimated Planning Commission hearings will be held in January for the commission to certify the report and whether to grant Valero the use permit for the project.