Category Archives: Federal pre-emption

Editorial: Celebrate, but watch on the tracks!

By Roger Straw, December 22, 2016

Why did Valero decide not to go to court?

rds2_2016-09-08
Roger Straw, The Benicia Independent

On December 20, Benicia’s City Attorney announced that she had been advised by Valero’s attorney that the refinery is no longer planning to sue the City of Benicia over its failed Crude By Rail proposal.

While this is welcome news, worthy of celebration and thanksgiving, Valero’s decision surely was more nuanced than the simple reason given, that it wants to maintain good relations with the City.

Everyone in the city is happy about that – we all want good relations, and no one wanted the issue to drag on in the courts, at great expense in time and money.

But it must be noted that a Benicia lawsuit by Valero would have failed, on multiple grounds. Valero’s best legal advice must have been to quit, or risk additional losses. That advice would’ve been resisted if at all possible, not only for local refinery interests, but on behalf of the wider oil and rail industries.

Valero Benicia was a potential precedent-setting case, with implications for major corporate financial holdings all across the US and Canada. There must have been immense pressure on Valero to sue. The industries needed to win a case claiming that federal preemption laws are enough to overrule local land use regulatory authority.

But with immense activist opposition setting the pace; with California’s Attorney General weighing in and a dozen environmental attorneys, engineers and environmental analysts offering significant commentary during the review process; and with the Federal Surface Transportation Board denying Valero’s last-ditch petition, a lawsuit had little chance of success.

Valero lost that argument here, but no one should rest easy. The oil and rail industries will surely look for another situation where they can more successfully press their unlimited right to endanger health and welfare under federal preemption laws.

The growing movement against oil trains needs to remain active and alert.

For more, see

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    Benicia decision being felt in Albany NY

    Repost from the Albany Times-Herald

    Ruling on oil trains hailed

    Federal action seen as boost to local, state control over projects

    By Brian Nearing, Thursday, September 29, 2016 10:03 pm

    ALBANY  >  A federal ruling on a oil-by-rail facility in California could hand state and local officials in New York and across the country a powerful legal tool to oversee the projects, which have been controlled primarily by federal rules.

    The federal Surface Transportation Board this month sided with officials in Benicia, a small city near San Francisco, in a dispute with an oil refining company over a proposed storage terminal for crude oil brought in by tanker trains. The Valero Refining Company had argued it was exempt from a city denial because it was functioning as a rail carrier, and governed by federal transportation rules — a legal concept called “preemption” — but the federal board rejected the claim.

    “Valero is not a rail carrier, nor is it acting under the auspices of a rail carrier,” according to the federal decision. Critics of oil train traffic directed in recent years to two oil terminals at the Port of Albany hailed the ruling as a victory for more state and local control.

    “This puts the state Department of Environmental Conservation in a very strong position to require the oil terminals to explain the full impacts of their operations,” said Chris Amato, an attorney for the not-for-profit environmental group Earthjustice.

    This month, the DEC announced it was requiring one terminal operator, Global Partners, to answer additional environmental questions on its request to construct a crude oil heating terminal that could be used to process Canadian tar sands oil.

    “Nothing in the opinion suggests that DEC’s current course of action with respect the Port of Albany should be altered,” a DEC statement said.

    Critics of earlier DEC environmental approvals for the Global and Buckeye oil terminals have been urging the state to rescind its approvals, but the state had responded that such authority rested with the federal government, not the state.

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      Ruling by Little-Known Federal Agency Paves Way for Communities to Say No to Oil-by-Rail

      Repost from Desmog Blog

      Ruling by Little-Known Federal Agency Paves Way for Communities to Say No to Oil-by-Rail

      By Justin Mikulka, September 28, 2016 – 03:58
      Oil tank care behind a fence with sign reading 'Think first'
      Oil tank care behind a fence with sign reading ‘Think first.’ Main image credit: Justin Mikulka

      The community of Benicia, [California,] in the crosshairs of history, made one of those decisions that will make a difference for the country. They stood up and said the safety of our communities matters.”

      That was Yolo County Supervisor Don Saylor talking to The Sacramento Bee about the vote by the Benicia City Council to deny a new oil-by-rail facility that oil company Valero was seeking.

      But that vote would have been meaningless if not for a recent decision on September 20 by the Surface Transportation Board (STB) that gave Benicia the legal authority to have some say over what happens within its borders.

      Created in 1996, the STB is a federal agency which serves as “an independent adjudicatory and economic-regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.”

      The STB decision helped clear up some of the gray areas around the issue of “pre-emption,” in which railroads are not subject to any local or state authorities or laws because local and state laws are “pre-empted” by federal law.

      In 2013 the STB ruled in favor of Norfolk Southern Railway Company, saying once again that federal pre-emption of state laws protected the rail company from lawsuits filed in the state of Virginia.

      The basic idea of pre-emption is that for interstate commerce to work, the federal government needs to be the sole regulator of railroads.

      As we have reported previously on DeSmog, pre-emption can effectively place rail companies above local law. This has led to developments such as the case of Grafton, Massachusetts, where the construction of the largest propane transloading facility in the state occurred without the need for local approval, construction permits, or even environmental review.

      Regarding the Grafton facility, the New England Center for Investigative Reporting wrote that, “Residents were dumbfounded: The location was in the middle of a residential neighborhood, less than 2,000 feet from an elementary school and atop the town’s water supply.”

      This above-the-law approach has served rail companies well. And until the recent STB decision, it also appeared to protect oil companies who were moving oil by rail.

      But this latest decision about Benicia appears to deliver a real blow to oil companies when it comes to oil-by-rail transfer facilities. Since the companies who receive the oil from the rail cars aren’t railroads, the STB ruled that they are not protected by federal pre-emption. In the decision the STB refers to Valero as a “a noncarrier” which is why the STB ruled they are not able to claim pre-emption.

      This allowed Benicia to say no to an oil-by-rail facility in their community. And it has also changed the discussion about this industry as a whole.

      San Luis Obispo County, California, has now delayed further the decision about a new oil-by-rail facility in order to consider the latest STB ruling.

      Ethan Buckner was one of the organizers for environmental advocacy group Stand, which was working to stop the Benicia facility.

      This is a victory for the right of communities to say no to refineries’ dangerous oil train projects. The federal government has said once and for all that there is nothing in federal law that prevents cities from denying these oil companies’ dangerous rail projects,” Buckner said. “The oil industry keeps telling communities they have no right to say no to oil trains, but this ruling once and for all refutes this.”

      Jackie Prange was one of the lawyers working on the Benicia case for the Natural Resources Defense Council and explained the potential impact of the STB decision to the San Francisco Chronicle.

      We’re pleased with the decision and the implications it will have across the country,” said Prange. “This issue is live in a number of sites across the country. This is definitely a decision that I think cities in other states will be looking to.”

      They are definitely paying attention in San Luis Obispo County, as well as in Albany, New York.

      Albany is the largest oil-by-rail hub on the East Coast.

      Opponents of its oil trains recently had cause for celebration. On September 16, the state’s Department of Environmental Conservation announced that the two companies operating oil-by-rail facilities at the Port of Albany would now be required to undergo full environmental reviews before the agency would renew the companies’ permits.

      Chris Amato is a lawyer for Earthjustice who has been working on this issue for years. He believes the STB decision supports what Earthjustice has been saying all along about Global Companies, which owns one of Albany’s oil-by-rail facilities.

      The decision by the Surface Transportation Board confirms what we have been saying since 2014: that Global’s claim that state regulation of their operations is pre-empted by federal railroad law is simply wrong,” Amato explained to DeSmog. “Global can no longer attempt to shield their operations from scrutiny under their flawed legal theory.”

      Opponents of the Albany oil-by-rail operations have been asking the state to step in for years, but the state has also hidden behind the issue of federal pre-emption. In 2014 the Albany Times Union reported that “Gov. Andrew Cuomo has been deflecting calls for the state to block the trains, saying rail transportation is controlled by the federal government, not the state.”

      It would appear that the STB ruling negates New York’s current position and offers an option for the state to have authority over oil-by-rail facilities in Albany.

      While the amount of oil moving by rail is roughly half of what it was two years ago, that is mostly due to the current low price of oil. And it hasn’t stopped oil companies’ continued efforts to build out more oil-by-rail infrastructure.

      Meanwhile, oil trains continue to derail and explode, as happened in Mosier, Oregon, in June, and opposition to the oil-by-rail industry continues to grow.

      This STB decision appears to be a game-changer in the oil-by-rail story. With it, perhaps now more politicians will agree that “the safety of our communities matter” — much more so than oil company profits.

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        COURTHOUSE NEWS SERVICE: Refinery Town decision may have huge ramifications for nation’s energy infrastructure

        Repost from Courthouse News Service

        Refinery Town Says No to Valero’s Oil-by-Rail Plan

        By Matthew Renda, Friday, September 23, 2016 5:14 PM PT
        Courthouse News Service
        Courthouse News Service

        BENICIA, Calif. (CN) — The City Council of a small city of 27,000 in California’s San Francisco Bay Area made a decision this week that may have huge ramifications for the nation’s energy infrastructure.

        The five-person Benicia City Council voted unanimously to reject the Valero Crude Oil by Rail Project — a substantial setback for an oil and gas industry that operates several refineries nearby and setting an interesting precedent for local government’s assertion of jurisdiction over oil and gas routes.

        The Valero Crude Oil by Rail Project would have allowed the oil company, which operates a large refinery in Benicia, to bring in crude oil by rail rather than exclusively by ship as the current arrangement dictates.

        However, Benicia City Council ended a divisive community fight over the issue by finding the project is too dangerous for the community. The potential for contamination of the Sulphur Springs Creek and other watersheds in the event of a derailment proved too much for the council members to brook.

        “I have seen stories piled on top of the other about what wasn’t working and what is particularly troubling is the lack of financial resources provided in the case of a catastrophic event,” Mayor Elizabeth Patterson said during deliberation on Wednesday night. “The money comes in too late, people have to go out of business and people have to move away.”

        Leading up to the decision, several questions about whether the City Council even had jurisdiction hovered over the matter, with project proponents asserting that the federal government regulates rail and any decision made by the city government is preempted.

        However, the Surface Transportation Board wrote the city on Wednesday before the meeting saying while the federal government does regulate interstate commerce and the railroad, the proposed $70 million rail depot was within the regulatory purview of the city.

        While many local residents applauded the decision, environmental groups talked about its reverberations.

        “This is a victory for the right of communities to say no to refineries’ dangerous oil train projects,” Ethan Buckner with the group Stand — formerly ForestEthics — said. “The federal government has said once and for all that there is nothing in federal law that prevents cities from denying these oil companies’ dangerous rail projects.”

        In the series of meetings leading up to the decision, Valero touted its safety record and said the train project carried minimal risk and would bring jobs and economic activity to the region.

        “After nearly four years of review and analysis by independent experts and the city, we are disappointed that the City Council members have chosen to reject the crude by rail project,” Valero said in a statement. “At this time we are considering our options moving forward.”

        Valero is the largest employer in the city, according to a recent comprehensive financial report compiled by the city’s finance team.

        However, Patterson said the city’s general plan calls for a more diversified economy that relies heavily on small businesses, many of which would be hampered by the crude oil by rail project, particularly if something went wrong.

        “We have to be less dependent on the refinery as we pivot into an era of attracting different kinds of businesses,” she said.

        In 2014, trains transporting crude oil spilled about 57,000 gallons of the environmentally hazardous substance, more than any other year since the Pipeline and Hazardous Materials Safety Administration began keeping track in 1975.

        The Columbia River, one of America’s most scenic rivers as it carves out the border between Oregon and Washington state, was spoiled by 42,000 gallons of oil when a train derailed due to a defective bolt on the track.

        While many celebrated the possibly precedent-setting decision undertaken by the small city body, Councilman Mark Hughes resigned himself to certain litigation and its associated expense.

        “Regardless of the decision tonight, I believe a lawsuit will be filed,” Hughes said.

        So whether Benicia’s decision will be the first in an onslaught of local entities attempting to regulate elements of the oil and gas industry out of their communities or whether that will be left to federal and state authorities may be a matter for the courts to decide.

        There are five major refineries in the Bay Area including the Valero refinery in Benicia: Chevron in Richmond, Tesoro outside of Concord, Phillips 66 in Rodeo and Shell in Martinez also operate and contribute significantly to both the local economy and air pollution.

        The five refineries process about 800,000 barrels of crude oil per day and along with other oil and gas companies generate about $4.3 billion in local tax revenue, according to a 2014 study performed by Los Angeles County Economic Development Corporation and commissioned by the Western States Petroleum Association.

        But Ralph Borrmann, public information officer for the Bay Area Air Quality Management District, told Courthouse News recently that the refineries are responsible for anywhere from 4 to 41 percent of the pollutants in the area, depending on which pollutant is identified.

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