Tag Archives: California Senator Jerry Hill

Are California foie gras, oil train court cases on parallel tracks?

Repost from McClatchyDC News
[Editor: Despite the curious analogy to foie gras, this is a SERIOUS discussion of Federal pre-emption and California’s attempt to regulate crude by rail.  Apologies for the auto-play video.  – RS]

Are California foie gras, oil train court cases on parallel tracks?

By Curtis Tate, January 15, 2015
US NEWS RAIL-SAFETY 1 WA
On April 30, 2014, a CSX train carrying Bakken crude oil derailed in downtown Lynchburg, Va. No one was injured or killed but three tank cars went into the James River, spilling 30,000 gallons of oil and igniting a fire. CURTIS TATE — TNS

WASHINGTON — Perhaps the only imaginable connection between trains and foie gras, the famous French delicacy obtained by force-feeding duck or geese to fatten up their livers, would be as an appetizer in the dining car of the luxury Orient Express.

Ah. Pas vrai.

A California court recently overturned the state law against selling foie gras because poultry regulation is a federal concern. And that’s just what the railroad industry is arguing about a state law enacted last year requiring it to develop oil spill response plans.

The law came about as an expected increase in crude oil transported to California by rail raised concerns about public safety and emergency response.

Like the restaurants that serve foie gras and the industry that supplies it, railroads have decided they won’t be forced to swallow a state law that they think is pre-empted by a federal one.

In the foie gras case, a producer and a restaurant that served it argued that California’s attempt to choke off sales ran afoul of the federal Poultry Products Inspection Act. Last week, a U.S. district judge agreed, citing the Supremacy Clause of the Constitution, which gives Congress the ability to displace state laws.

Similarly, the Association of American Railroads, the rail industry’s principal advocacy organization, and two of California’s major railroads, Union Pacific and BNSF, argue that the Federal Rail Safety Act derails the state’s oil spill response requirements.

According to some attorneys who know the issue well, California’s law is heading to the end of the line.

“I don’t think the court will struggle with this,” said Kevin Sheys, a Washington attorney who advises railroads but has no involvement in the California case. “The law will be struck down.”

Environmental groups, however, argue that other federal laws apply to the railroads. Patti Goldman, a Seattle-based attorney with Earthjustice, an environmental group, said the Clean Water Act and the Oil Pollution Act, the latter passed in response to the Exxon Valdez oil tanker disaster, gave states the power to enact stricter oil spill response requirements than federal ones.

That’s in contrast to the Federal Rail Safety Act, which doesn’t allow states much room to exceed what’s required at the federal level. A court decision that weighs more heavily on the rail safety act would favor the railroads. A reliance on federal water pollution laws would favor the state.

“The structures for pre-emption in there are almost polar opposite,” Goldman said. “The federal government sets a minimum standard, and the states can go further. All of that is a structure that is meant to preserve state authority.”

Sometimes pre-emption works in California’s favor. Opponents of the state’s $68 billion high-speed rail system tried to slow down the project by arguing that it was subject to the California Environmental Quality Act and required extensive impact reviews.

But in a 2-1 ruling last month, the federal Surface Transportation Board said the project was exempt from the state law. Last week, state and federal officials, including Gov. Jerry Brown, broke ground on the project in Fresno.

As a more practical matter, railroads have largely prevailed in pre-emption cases because courts have been sympathetic to the notion that a patchwork of 50 different state laws could unreasonably burden interstate commerce.

In a notable case in Washington, D.C., a decade ago, a federal court struck down a local law that prohibited the shipment of hazardous materials by rail within two miles of the Capitol. A busy CSX freight line runs only blocks away, and the law would have forced lengthy and expensive detours of hazardous cargo.

But a massive increase in the transportation of crude oil by rail in recent years, and with it an increase in high-profile accidents, has exposed gaps in safety and emergency preparedness. California is bracing for a big increase in crude by rail, and last year the legislature extended the state’s oil spill response requirements to cover inland waterways.

That, naturally, affected railroads, which historically followed rivers because of the level terrain for heavy trains, including California’s Feather and Sacramento rivers.

The Association of American Railroads declined to comment on the California case, but spokesman Ed Greenberg noted that railroads “have extensive emergency plans in place, which include procedures in working with local first responders” and have “stepped-up emergency response capability planning and training.”

David Beltran, a spokesman for California Attorney General Kamala Harris, who’s defending the law, wouldn’t comment on the case beyond what’s in court filings.

State Sen. Jerry Hill, a San Mateo Democrat, said the attorney general’s office had assured him that the law wouldn’t be pre-empted when it came before his committee last year.

“We feel comfortable based on the legal opinions we have,” Hill said.

He thinks it’s premature to predict that the law will be invalidated. But Hill said that he and others who supported it should be prepared for that outcome.

“Everyone would regroup and try to find a way to meet the goals that we’re trying to achieve,” he said.

Harris, who’s said she’ll run next year for the U.S. Senate seat of retiring Democrat Barbara Boxer, also defended the foie gras ban. She tried to have that suit dismissed by arguing that she had no present intent on enforcing the law while reserving the right to do so.

That prompted a quip from Judge Stephen Wilson in his 15-page ruling striking it down: “Defendant seeks to have her paté and eat it, too.”

Harris made a similar argument in the rail case.

“I think it’s going to be decided the same way,” said Mike Mills, an oil and gas attorney in Sacramento. “I don’t see a different outcome.”

Mills said the California case might put a federal solution on a faster track.

The U.S. Department of Transportation issued an Advance Notice of Proposed Rulemaking in August for a new regulation that would require railroads hauling crude oil to have comprehensive oil spill response plans. The rule would apply uniformly across all states, and it would achieve what California tried to do on its own.

“Oftentimes, litigation will produce a decision that forms the basis for new legislation,” Mills said. “Potentially, it could happen.”

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    Call For Crude-By-Rail Moratorium In California After Train Derailment

    Repost from DeSmogBlog

    Call For Crude-By-Rail Moratorium In California After Train Derailment

    2014-12-09, by Mike Gaworecki

    A train derailment last week has prompted a California state legislator to call for a moratorium on crude-by-rail shipments through the state’s “most treacherous” passes.

    Twelve cars derailed on a Union Pacific rail line along the Feather River northeast of Oroville, CA in the early morning hours of November 5th. The state Office of Emergency Services responded by saying “we dodged a bullet” due to the fact that the train was carrying corn, some of which spilled into the river, and not oil.

    State Senator Jerry Hill (D-San Mateo), a vocal critic of the state’s emergency preparedness for responding to crude-by-rail accidents, does not think California should wait around for a bullet it can’t dodge before taking action. Hill sent a letter to Governor Jerry Brown calling for a moratorium on shipments of volatile crude oil from North Dakota’s Bakken Shale and other hazardous materials via the Feather River Canyon and several other high risk routes throughout California.

    “This incident serves as a warning alarm to the State of California,” Hill wrote in the letter. “Had Tuesday’s derailment resulted in a spill of oil, the spill could have caused serious contamination in the Feather River, flowing into Lake Oroville and contaminating California’s second largest reservoir that supplies water to the California Water Project and millions of people.”

    Hill’s letter goes on to mention the fact that increased use of crude transport by rail due to the fracking boom has also led to many more “fatal and devastating rail accidents involving large crude oil spills,” specifically raising the specter of the derailment and explosion of a train in Lac-Mégantic, Quebec in 2013, which killed 47 people and spilled 26,000 gallons of crude into the Chaudière River.

    There is a need for a moratorium, Hill argues, because a train carrying one million gallons of Bakken crude—the same type of oil that was being transported through Lac-Mégantic—travels through the Feather River Canyon every week, and there are plans for a second of these “bomb trains” (so called due to the highly volatile nature of Bakken crude) to be added soon.

    According to Hill, the trains travel through some of California’s most remote regions where the risk of derailment is especially high and “emergency responders are ill-equipped to quickly respond in these regions to prevent and mitigate major environmental and public health harm.”

    Crude-by-rail has taken off in the U.S. because there is simply not enough space in existing pipelines to transport the glut of oil being produced across North America. This has led to more oil being spilled by train accidents in 2013 than in the previous three decades combined. According to Pipeline and Hazardous Materials Safety Administration data, last year saw some 1.15 million gallons of crude oil spilled by rail incidents, compared to just 800,000 gallons between 1975 and 2012.

    It just so happens that there are no pipelines bringing crude to California, however, so the state is bracing itself for a massive increase in the number of oil trains. In 2011 there were 9,000 carloads of oil shipped by rail into the Golden State, but that number is expected to swell to 200,000 carloads by 2016.

    So far this year, California has imported nearly 4.4 million barrels of oil by rail through September, compared to just 3.3 million barrels from January to September in 2013. To put that in context: the 6.3 million barrels ultimately shipped via rail to California refineries last year represented a 506% increase over the 1 million barrels shipped by rail in 2012, but was still just 1% of total oil shipments into the state. However, crude-by-rail shipments are growing so quickly that they are expected to reach as much as 150 million barrels by 2016, some 25% of total imports.

    When reached for comment, the governor’s office deferred to the California Office of Emergency Services. Kelly Houston, deputy director of the OES, told DeSmog, “We share Senator Hill’s concern about the increase in crude oil coming into California by rail,” but that ultimately any decision on a moratorium would have to come from the Department of Transportation’s Federal Railroad Administration.

    Houston stresses that the state is working to make crude-by-rail shipments safer, pointing to a report released by the state this past June, “Oil by Rail Safety in California,” and the work being done with railroad operators and federal regulators to improve California’s safety and emergency preparedness standards. “We’re going to have an increased risk because we don’t want to stop commerce into the state,” Houston says, “but what we want to do is increase safety and preparedness.”

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      Senator calls on Jerry Brown to halt crude oil trains in ‘treacherous’ California mountain passes

      Repost from the Sacramento Bee
      [Editor: See also KQED News: Call for Suspension of Crude-by-Rail Shipments After Feather River Derailment (including an embedded copy of Senator Hill’s letter).  – RS]

      Senator calls on Jerry Brown to halt crude oil trains in ‘treacherous’ California mountain passes

      By Tony Bizjak, 12/02/2014
      A crude oil train operated by BNSF snakes its way west through James, Ca., just outside of the Feather River Canyon in the foothills into the Sacramento Valley on June 5, 2014.
      A crude oil train operated by BNSF snakes its way west through James, Ca., just outside of the Feather River Canyon in the foothills into the Sacramento Valley on June 5, 2014. JAKE MIILLE SPECIAL TO THE BEE

      Sen. Jerry Hill on Tuesday called on Gov. Jerry Brown to halt the transport of crude oil on trains and other hazardous materials “through our most treacherous passes.”

      The request by Hill, D-San Mateo, comes in reaction to a corn train derailment last week in the Feather River Canyon that sent train cars and corn spilling down an embankment into the river. The cause of the derailment is under investigation.

      The Feather River route through Plumas and Butte counties is used by at least one train a week carrying up to 2.9 million gallons of highly flammable Bakken crude oil from North Dakota. More crude oil trains are expected to be coming into the state in the next few years, most of them traversing mountains passes deemed “high-risk” for derailments by the state Public Utilities Commission. State officials have said they do not believe California is ready to deal with the consequences of a major oil spill and fire.

      “This incident serves as a warning alarm to the state of California,” Hill wrote in a letter to the governor. “Had Tuesday’s derailment resulted in a spill of oil, the spill could have caused serious contamination” in Lake Oroville, the state’s second largest reservoir, a source of drinking water for millions in the state.

      Other “high-risk” derailment sections in Northern California include UP lines outside of Dunsmuir and Colfax.

      Mark Ghilarducci, director of the California Governor’s Office of Emergency Services, said the state cannot stop interstate commerce, but said the state needs to continue to work with the railroads to assure safer shipments. “These trains are going to come through,” he said. “We need to work together with the industry to put every safety precaution possible in place.”

      Several environmental groups filed a petition Tuesday in San Francisco federal court seeking to force the federal government to ban older railroad cars – DOT-111s built before 2011 – from transporting crude oil. The U.S. Department of Transportation last month rejected the groups’ demand. DOT says it’s developing new guidelines that will phase out the older cars.

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        KPIX: State Senator Says Bay Area Not Prepared For Crude Oil Trains

        Repost from 5KPIX TV CBS SF Bay Area
        [Editor: apologies for the video’s commercial ad.  You can pass on choosing an ad – the video will begin if you just wait.  – RS]

        State Senator Says Bay Area Not Prepared For Crude Oil Trains

        Phil Matier talks with state senator Jerry Hill who believes that Bay Area emergency crews are not properly prepared to handle the hundreds of tanker trains bringing shale crude oil from the Dakotas to local refineries. (11/23/14)

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