On March 30, attorney Rachael E. Koss of Adams Broadwell Joseph & Cardozo, representing Safe Fuel and Energy Resources California (SAFER), sent the Benicia City Council this letter of opposition to Valero’s oil trains project.
First, Valero’s argument that the City should not consider Project impacts from crude slate changes because emissions would not exceed its permit limits has already been rejected by the California Supreme Court. The California Environmental Quality Act (“CEQA”)l requires the City to determine whether a project would change the existing environment by increasing emissions as compared to actual existing emissions — not whether the Project will change the environment by exceeding hypothetical emissions allowed under permit limits. This was precisely the issue before the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District.2 The Court rejected the argument that “the analytical baseline for a project employing existing equipment should be the maximum permitted operating capacity of the equipment, even if the equipment is operating below those levels at the time the environmental analysis is begun.”3 The Court held that CEQA requires the baseline to reflect “established levels of a particular use,” not the “merely hypothetical conditions allowable under the permits…”4 Following the Supreme Court decision, the court in Communities for a Better Environlnent v. City of Richmond5 similarly rejected the city’s use of a hypothetical baseline, which failed to reflect actual operational conditions. “The [Supreme Court] stated that using hypothetical, allowable conditions as a baseline ‘will not inform decision makers and the public of the project’s significant environmental impacts, as CEQA mandates.”’6 Thus, Valero’s argument has already been rejected by the California Supreme Court.
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.”
BREAKING: Sacramento Area Council of Governments (SACOG) highly critical of Valero oil train EIR
The Benicia Independent is in receipt of a Sacramento Area Council of Government letter sent on February 4, 2016 to the City of Benicia, but not as yet posted on the City’s website. The letter is severely critical of the City’s Final EIR, and calls for the Benicia Planning Commission to “provide full and adequate responses to our comment letters,” and “to fully evaluate all measures to mitigate the significant environmental impacts that this Project will inevitably have on our communities and our residents.”
The letter is signed by SACOG Immediate Past Chair Don Saylor. SACOG represents 22 cities and 6 counties in the Sacramento area.
The letter begins by summarizing two previous letters sent to Benicia, one in 2014 commenting on the original Draft EIR, and another in 2015 commenting on the Revised DEIR. The 2015 letter claimed that the City did not adequately respond to their first letter. “…we submitted a second comment letter citing the mandate in the California Environmental Quality Act (CEQA) to describe all mitigation measures that could, if implemented, minimize significant environmental effects. (CEQA Guidelines, §§ 15 I26(c), 15126.1 (a).) We urged the City to adopt all feasible mitigation measures that will protect our communities before the catastrophic events forecast by the RDEIR occur. We noted that nearly one quarter of our region’s population lives within one-half mile of the crude oil shipments.”
This new 2016 letter continues with criticism of the Final Draft EIR, “…we appreciate that the City finally acknowledges the substantial risk to our region resulting from the crude oil shipments. However, the FEIR still fails to adopt a single mitigation measure to address the impacts of the Project and the FEIR fails to adequately respond to our letters.”
The letter concludes with five detailed examples of “the inadequacies and misstatements in the Responses to our comment letters.”
Taken together, these inadequacies point out what may be understood as “fatal flaws,” indicating that the EIR should be revised and recirculated yet again, or thrown out for a fresh start.
Or … as in my opinion, the project should simply be dropped.
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.