At the September 20, 2016 City Council meeting, the Council denied the use permit for the Valero Crude By Rail project and requested a revised resolution be brought back for final approval at the October 4th Council meeting. Per the Council’s direction, the proposed resolution incorporates some General Plan policies as well as issues raised by the state Attorney General, the Bay Area Air Quality Management District and Caltrans.
The agenda also included the following important documents:
Various attachments – letters submitted previously for the record by the California Attorney General, Bay Area Air Quality Management District and the California Department of Transportation (Caltrans). (Be patient – a very large download.)
A 9/28/16 letter from the law firm Adams Broadwell Joseph & Cardozo offering proposed findings for denial of the permit. Along with Adams Broadwell, the letter was submitted by attorneys representing Natural Resources Defense Council, Center for Biological Diversity, Communities for a Better Environment and the Sierra Club, STAND, San Francisco Bay Keeper and Benicians For a Safe and Healthy Community.
It will be an important Council meeting tonight. Plan to attend if you can – 7pm in Council Chambers, 250 East L Street, Benicia.
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.
On March 31, five environmental attorneys and a host of experts and others (including Benicians for a Safe and Healthy Community) sent the Benicia City Council this strong 3-page letter of opposition to Valero’s oil trains proposal. (For a much longer download, see the Letter with Attachments [13 MB, 214 pages].)
Jackie Prange, Staff Attorney for Natural Resources Defense Council;
Roger Lin, Staff Attorney for Communities for a Better Environment;
George Torgun, Managing Attorney for San Francisco Baykeeper;
Clare Lakewood, Staff Attorney for Center for Biological Diversity;
Elly Benson, Staff Attorney for Sierra Club.
Others signing the letter:
Ethan Buckner, ForestEthics;
Katherine Black, Benicians for a Safe and Healthy Community;
Janet Johnson, Richmond Progressive Alliance;
David McCoard, Sierra Club SF Bay Chapter;
Jessica Hendricks, Global Community Monitor;
Colin Miller, Bay Localize;
Denny Larson, Community Science Institute;
Nancy Rieser, Crockett-Rodeo United to Defend the Environment;
Steve Nadel, Sunflower Alliance;
Kalli Graham, Pittsburg Defense Council;
Richard Gray, 350 Bay Area and 350 Marin;
Bradley Angel, Greenaction for Health and Environmental Justice;
Sandy Saeturn, Asian Pacific Environmental Network
The City Council can, and must, uphold the Planning Commission’s unanimous decision to deny the use permit for the Valero crude-by-rail project. Federal law does not preempt the City from denying the permit for this project. Furthermore, the City should not tolerate Valero’ s delay tactic of seeking a declaratory order from the Surface Transportation Board (STB). As explained below, the STB does not have jurisdiction over this project and will almost certainly decline to hear Valero’ s petition for the very same reason that preemption does not apply. Finally, even if preemption were to apply here, the project’s on-site impacts, especially the increases in refinery pollution, require the City to deny the permit.
Repost from the East Bay Express [Editor: I am posting this excellent review by Jean Tepperman belatedly, with thanks for East Bay Express’ regional coverage of a Benicia story with huge regional and national implications. I’ve not read a better review of the Feb. 8-11 Benicia Planning Commission hearings. – RS]
Benicia Blocks Oil-By-Rail Plan
By Jean Tepperman, February 12, 2016
The little town of Benicia is looking to become the next link in the chain barring crude oil from traveling by rail to the West Coast. After four evenings of contentious hearings, the Benicia Planning Commission on Thursday unanimously rejected Valero refinery’s proposal to build a rail spur that would allow it to import up to 70,000 barrels a day of “North American crude oil” — meaning extra-polluting crude from Canada’s tar sands and the highly explosive crude from North Dakota’s Bakken shale fields. Both fossil fuels have been involved in numerous derailments, explosions, and fires, including a 2013 fire and explosion in Lac Megantic, Quebec that killed 47 people.
Starting on Monday, planning commissioners, led by Commissioner Steve Young, grilled staff members about their decision to recommend approval of the Valero project, identifying inconsistencies and pointing to problems that the project would create, from blocking traffic to increasing pollution to potential oil spills and other emergencies that the city would not be able to cope with. The central issue that emerged, however, was whether the city had the authority to make decisions about the project.
The staff report actually said the benefits of the project did not outweigh the potential harm. Shipping crude oil by rail, the staff found, would have “significant and unavoidable” impacts on air quality, biological resources, and greenhouse gas emissions. These impacts would conflict with air quality planning goals and state goals for reducing greenhouse gas emissions. But the city can’t prevent any of this, the staff report said, because only the federal government has the authority to regulate railroads.
Bradley Hogin, a lawyer whom the city hired on contract to advise on this project, said federal law prevents local governments from interfering with railroads, a principle referred to as “preemption.” According to the interpretation of “preemption” described by Hogin and city staff, local governments are not permitted to take actions that “have the effect of governing or managing rail transport,” even indirectly. And they are not allowed to make decisions about a project based on impacts of rail shipping connected with that project.
“Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said environmental activist Marilyn Bardet in an interview. “They were going to create a legal precedent on preemption here.”
Bardet reported that public testimony by representatives of environmental organizations and “two young women from the Stanford-Mills Law Project made it clear that “there are many people who would disagree with Hogin’s interpretation.”
Roger Lin, lawyer with Communities for a Better Environment, said in an email that, contrary to Hogin’s claims, the California Environmental Quality Act actually requires local governments to consider “indirect or secondary effects that are reasonably foreseeable and caused by a project, but occur at a different time or place.” Valero is not a railroad, he said, so the “preemption” doctrine does not bar the city from using its land-use power to reject the project.
However “preemption” is interpreted, Bardet said, “the commissioners seemed uncomfortable with being told they would have to approve the project based on considerations they couldn’t accept.” Late in the hearing process, commission chair Donald Dean said, “I understand the preemption issue on a theoretical legal level, but I can’t understand this on a human level.”
Bardet expressed appreciation for the commissioners’ concern. “My sense was that these guys are real human beings,” she said. “They all listened carefully. None of them was asleep.”
Project opponents packed the hearing room for four straight nights, filling two overflow rooms on the first night. People came from “uprail” communities, including Davis and Sacramento, as well as allies from across the Bay Area, Bardet said.
Opposition to the project has been led by a community group, Benicians for a Safe and Healthy Community, formed in 2013 when the city seemed ready to approve the project without requiring any environmental impact study. “We joined with other refinery communities in the Bay Area Refinery Corridor Coalition” and in a coalition working to persuade the Bay Area Air Quality Management District to pass tough new regulations on refinery pollution, Bardet said. She said support from the National Resources Defense Council and Communities for a Better Environment was also important. “The grassroots came alive together,” she said.
Many of these organizations, like the Benicia group, are concerned, not only about the hazards of shipping crude by rail, but by the impact of refining the extra-polluting crude oil from Canada’s tar sands, Bardet said. She noted that the city’s environmental review of the project made no mention of this issue, although it is well established that refining dirty crude oil, like oil from tar sands, emits more health-harming pollution as well as more greenhouse gases.
Valero is expected to appeal the planning commission decision to the city council, which could meet to decide on the issue as early as mid-March. “The city council is going to be hard-pressed to reject the views of their own planning commission,” Bardet said.
She emphasized the significance of this decision for the national and international issue of shipping crude oil by rail. “The whole world is watching,” she said. “I just got a message from a guy in New Jersey congratulating us.”
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