By Roger Straw, June 8, 2016
(Be sure to scroll down for two videos: the 45 minute Council discussion, and a segment of the same video: 20 minutes of public comment.)
Benicia City Staff receives Council authority to hire an outside attorney to file a response to Valero’s petition to STB
On June 2, 2016, the Benicia City staff released a 5-page report to City Council for Council’s June 7 meeting. In the report, staff asked Council to “provide direction on whether to file a response to Valero’s petition to the Surface Transportation Board related to the crude by rail project and preemption.”
On June 7, City Council received the report and (if I understand correctly) directed staff to hire an outside attorney to file with the STB, and to consider additional attorney candidates other than those mentioned in the report.
The Benicia Herald reported on the Council’s June 7 meeting here. Minutes for the June 7 meeting are not available as of this writing. A video of the Council’s 45-minute STB/attorney discussion is available below.
The following video shows only the 20 minute PUBLIC COMMENT portion of the video above:
Valero wins one; attorneys wrangle; opponents get testy
Catching up on recent events
Sorry, I had to take a little break. When the Benicia City Council voted 3-2 to put off a decision on Valero’s crude by rail proposal (CBR), it was just a bit too much.
I was deeply discouraged by the majority’s need for yet more information. Three Council members wish to hear from the federal Surface Transportation Board (STB) before making the decision whether to permit a rail offloading rack on Valero property – a project that would foul California air and endanger lives and properties from here to the border and beyond, a project that would clearly contribute to the ongoing effects of global warming.
So I was one discouraged 3½ year supposedly-retired volunteer. I was in no shape last week to send out my Friday newsletter.
Here, as best I can summarize, is news from the last 2 weeks:
Valero wins one
You will recall that Valero appealed the Planning Commission’s unanimous February decision on crude by rail to not certify the environmental report and to deny the land use permit. Then at the Benicia City Council’s opening hearing on the appeal on March 15, Valero surprised everyone by asking for a delay in the proceedings so that it could ask for guidance from the federal Surface Transportation Board (STB).
City staff recommended against Valero’s request, rejecting the proposed delay as unnecessary and risky, given that the City and Valero could end up with a “stale” environmental report that requires yet another time-consuming revision and more hearings.
Opponents also argued against the delay, noting that the request would be carefully framed by Valero in its own favor, submitted for review to an industry-friendly STB, and result in a judgement that would still be subject to final review in a court of law. Opponents also pointed out the possibly that the delay was a Valero political tactic, given that this is an election year with three members of City Council up for re-election.
At the most recent City Council hearing on April 19, contract attorney Bradley Hogin disclosed that he was not involved in the staff decision to recommend against the delay, and that he disagreed with his employers. Given every opportunity by Council members, Hogin argued at length in favor of the delay. During verbal questioning, Council did not give similar opportunity to Hogin’s bosses to argue against the request for delay.
And guess what, 3 members of Council were convinced by the pleasant instruction of their outside attorney Hogin that we would do well to hear from the STB before rushing (3 years into the process) to judgement.
Win one for Valero. Council will resume consideration in September.
The attorneys wrangle
We are asked to believe that the big issue here after 3 years of environmental review has nothing at all to do with the earth or the health and safety of you, me, our neighbors or the lands and wildlife.
Supposedly, according to Valero’s attorney and contract attorney Hogin, it’s all about “federal preemption.” Supposedly, our city officials have no legal authority to impose conditions or mitigations or deny a permit in this case.
However, according to California’s Attorney General and environmental attorneys, “federal preemption” does not prohibit City government from making such land use decisions based on local police powers and the legal requirement to protect public health and safety. Federal preemption protects against state and local authorities regulating railroads. A refinery, says our Attorney General, is not a railroad. Go figure.
Anyway, Valero’s attorney has written several letters on preemption and taking issue with the Attorney General. The Attorney General has written several letters, sticking by its argument. Environmental attorneys have written several letters making similar arguments.
In addition to the letters, Valero’s attorney and Mr. Hogin have testified at length under questioning by City Council members. Environmental attorneys have been given only 5 minutes each to speak at hearings, with little or no back and forth questioning from City Council members.
Everyone I have talked to expects this decision to end up in court, whether or not the STB issues a ruling, and regardless of which way they rule.
Benicians for a Safe and Healthy Community gets testy
Like me, I suspect, members of our local opposition group, Benicians for a Safe and Healthy Community (BSHC) were highly disappointed and discouraged by the Council vote to delay for Valero and the STB.
In interviews and online statements that followed the April 19 Council vote, some BSHC members were quick to presume that the 3 Council members who voted for delay would also support Valero when it comes to a final vote in September.
Of course, a 3-2 vote favoring Valero in September is not the only possible outcome. Some would say that the next 5 months might best be spent respectfully reminding Council members of facts of the case, and encouraging them to make the right decision.
Those of us who have spent countless hours opposing Valero’s dirty and dangerous proposal have known all along that it is an uphill battle, that the odds are against us, that big business prevails all too often against the interests of health, safety and clean air. But look what happened at our Planning Commission. There is hope.
It seems to me that the presumption of a negative outcome can only serve to harden Council members’ attitudes and opinions. But I may be wrong.
Some will continue to argue that Council members should be made to feel the public’s disappointment, that outrage and pessimism is understandable, and that an obvious implication is that unhappy voters will have their say in November.
I’m convinced that hardball politics and small-town respect for decision makers will need to co-exist over the next few months. Come September, we shall see.
Benicia council calls a timeout on oil train issue
Special to the Enterprise by Elizabeth Lasensky, April 24, 2016
On Tuesday night, a majority of the Benicia City Council voted to allow the Valero refinery a continuance on hearings on its oil train project request. Valero wants the delay to petition the federal Surface Transportation Board for clarification on federal pre-emption and indirect pre-emption of its project.
Although Valero is an oil refinery, now calling itself a “shipper,” the crude oil will be traveling in rail cars on Union Pacific tracks. However, the project itself will be on Valero property within the city of Benicia.
The Surface Transportation Board’s website states this about its oversight:
“The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction and line abandonments); certain trucking company, moving van and non-contiguous ocean shipping company rate matters; certain intercity passenger bus company structure, financial and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission.
“The agency has authority to investigate rail service matters of regional and national significance.”
Federal pre-emption dates to the founding of the railroads. Only the federal government has regulatory authority over railroads. Cities and states cannot create regulations regarding railroads.
The majority of the Benicia City Council members commented that they did not have enough information on pre-emption to move forward with a vote on the environmental impact report and the use permit. Benicia Mayor Elizabeth Patterson attempted to point out that there is sufficient evidence to know how the STB would rule and that the council should move forward. In her view, there are other issues and projects on which city staff need to spend time.
By making this decision, the council chose to ignore three years of work and a unanimous opposition decision by its own Planning Commission; public comments by many of their own residents; countless hours of staff time; testimony by up- and down-rail elected officials, agencies and citizens; comments and recommendations by experts from various air quality boards; opinions by lawyers from several nonprofit agencies; and expert comments from the office of California Attorney General Kamala Harris.
Based on their questions and comments, it was apparent that those council members had not read the EIR and the subsequent public comments. Rather, they chose to accept the opinion of the city’s contract attorney in lieu of doing their homework.
By allowing Valero this delay to submit a petition to the Surface Transportation Board, the council has opened the door to abdicating its authority to determine its own land-use policy within the city boundaries. The EIR likely will become stale and all the work that went into that document might need to be redone. Further, any opinion offered by the STB still could be challenged in court.
Whether or not an opinion has been made by the STB, the Benicia City Council will reconvene hearings on Sept. 21. Two members insist they must have this information to make a decision and want to reconsider what to do if the decision is not returned by this date.
Up- and down-rail communities, agencies and activists will be closely following the process.
— Elizabeth Lasensky is a Davis resident and oil train activist.