How crude-by-rail — and other debates — are censored
By Lois Kazakoff, January 2, 2015
How the crude-by-rail debate is censored… Valero seeks to modify its Benicia refinery to bring in two 50-car trains a day of crude oil. Photo By The Chronicle
When I wrote in November about how the mayor of Benicia was effectively muzzled from speaking about a pending city decision with nationwide importance, I thought the debate was over climate change. Now I learn the real concern is over democracy itself.
My Nov. 18 blog post concerned the City Council’s decision to make public an opinion on whether the mayor should be allowed to speak freely with voters about Valero’s application to convert its Benicia refinery to receive crude from the Baaken Oil Shale by rail. The decision is huge because fracking the crude is only profitable if the oil can reach refineries and the global market. Benicia’s refinery and port are key components to success.
Locally, Benicians and Californians living along the rail lines are fearful of train cars filled with the highly volatile crude rumbling through their communities twice a day. It’s a highly charged dispute that has drawn in Attorney General Kamala Harris, who chastised the city for only studying the effects on Benicia and not the effects along the entire rail line through California.
When the City Council voted to make public the opinion, written by an attorney hired by the city attorney, the decision was Mayor Elizabeth Patterson had overstepped her bounds.
Why? Because local politicians can advocate for new laws, but when they are holding a public hearing or ruling on a permit — acting more like judges than legislators — the permit applicant’s right to appear before an unbiased body trumps the legislator’s right to freely express an opinion.
Peter Scheer, the executive director of the First Amendment Coalition, writes in Sunday’s Insight section that this growing practice of advising City Council members to censor themselves is deleterious not just to political debate over important and engaging local issues but to democracy. By giving City Councils this dual role and then advising them to censor their own speech, we discourage civic participation on the concerns constituents care about most.
Can local legislators speak freely to voters? It depends
By Peter Scheer, Friday, January 2, 2015
Local government, Republicans and Democrats agree, is the most democratic (with a small d) form of government. The closer government is to the people, the theory goes, the more accountable it is to voters and the more responsive to the public will. Congress is the most remote, hence least accountable; your local city council is the closest, therefore most attuned to your needs and interests.
Except in California and several other states where elected, local officials can find themselves in trouble for doing exactly what elected local officials are supposed to do. Things like communicating regularly with citizens; staking out clear positions on issues that constituents care about; listening to voters’ complaints about the status quo and promising, if elected (or re-elected), to make specific changes.
These communications are the lifeblood of democracy. They enable voters to make meaningful choices among candidates, while providing elected officials the information they need to represent the people’s interests. The resulting feedback loop between politicians and voters is political expression of the highest order, entitled to the fullest, most robust First Amendment protection.
And yet this paradigm of government accountability is under a cloud of uncertainty.
The cause: legal rulings that force legislative bodies to function like courts when they make decisions that are — to use the applicable legalese — “quasi-judicial” in nature. In such cases, the members of a city council, school board or county board of supervisors must be impartial and unbiased, more like judges than legislators.
What does this mean for a newly elected (or re-elected) city council member? Suppose the council will decide whether to approve expansion of a controversial housing development. If the member told voters during the election that she opposed expansion (because that is what she believed), then she may be forced — on grounds of bias — to abstain from the vote and all deliberations.
The upshot is that her constituents will be disenfranchised, which is no small penalty.
This collateral damage to free speech rights might be tolerable if local officials at least had a clear understanding of when it’s OK to act politically — that is, doing what voters want — and when, instead, they must act as disinterested judges, watching what they say and disregarding what voters say. But the fact is that the distinction between legislative acts and quasi-judicial acts is anything but clear.
Take, again, the real estate example. … If the proposed housing expansion comes before the city council as a zoning code amendment — ostensibly a legal change of general applicability but also necessary for the project to go forward — the council is probably free to proceed in legislative mode, taking politics into account and honoring members’ election promises. On the other hand, if the issue comes up as a vote on an application for a permit or license, the council members probably have to put on their judicial robes (figuratively speaking), ignore what voters say, and exclude from the process those council members who have spoken out on the issue.
The line separating legislative from quasi-judicial decisions is barely discernible to lawyers who practice in the government arena — much less to the amateur politicians who predominate on legislative bodies of cities, counties, school districts and the like.
Moreover, even in cases where the line is ultimately visible, elected officials may have no way of knowing, well in advance of the decision, whether the issue will be presented to the council as a legislative matter or a quasi-judicial matter.
Faced with this uncertainty, many council members do the only safe thing: They censor themselves.
Unsure whether they will have to act like judges on a particular issue, they will act more like judges than politicians on all issues. They will curb their interaction with voters. They will refrain from making political promises. When asked by reporters and voters to comment on a local controversy, they will resort to vague generalities, avoiding specifics at all costs.
The court rulings creating this uncertainty are not new. Some have been on the books for years. What is new is that lawyers representing local governments are relying on these rulings in their advice to local officials. Because their job is to keep their clients out of trouble, the lawyers are warning public officials to curb their comments, and their candor, about local issues.
The result is a cumulative weakening of democracy, and a diminishing of political discourse and debate on the local issues that citizens care most about.
Repost from McClatchy News [Editor: Once again Curtis Tate has produced an incredible wide-ranging and deep analysis of current issues and developments around crude by rail in the US. This article can serve as a must-read primer on crude by rail. Note that the presentation below is only a rough copy – much better viewing on McClatchy’s website. – RS]
By Curtis Tate, December 31, 2014
TUSCALOOSA, Ala. — Every day, strings of black tank cars filled with crude oil roll slowly across a long wooden railroad bridge over the Black Warrior River.
Curtis Tate / McClatchyDecaying track and bridge conditions on the Alabama southern railroad could pose a risk to Tuscaloosa, Ala., population 95,000. Above, video of trains crossing the bridge.
The 116-year-old span is a landmark in this city of 95,000 people, home to the University of Alabama. Residents have proposed and gotten married next to the bridge. Children play under it. During Alabama football season, die-hard Crimson Tide fans set up camp in its shadow.
But with some timber pilings so badly rotted that you can stick your hand right through them, and a “MacGyver”-esque combination of plywood, concrete and plastic pipe employed to patch up others, the bridge demonstrates the limited ability of government and industry to manage the hidden risks of a sudden shift in energy production.
And it shows why communities nationwide are in danger.
“It may not happen today or tomorrow, but one day a town or a city is going to get wiped out,” said Larry Mann, one of the foremost authorities on rail safety, who as a legislative aide on Capitol Hill in 1970 was the principal author of the Federal Railroad Safety Act, which authorized the government to regulate the safety of railroads.
Almost overnight in 2010, trains began crisscrossing the country carrying an energy bounty that included millions of gallons of crude oil and ethanol. The nation’s fleet of tens of thousands of tank cars, coupled with a 140,000-mile network of rail lines, had emerged as a viable way to move these economically essential commodities. But few thought to step back and take a hard look at the industry’s readiness for the job.
It may not happen today or tomorrow, but one day a town or a city is going to get wiped out.
Larry Mann, principal author of the Federal Railroad Safety Act
In a series of stories, McClatchy has detailed how government and industry are playing catch-up to long-overdue safety improvements, from redesigning the tank cars that carry the oil to rebuilding the track and bridges over which the trains run.
Those efforts in the past year and a half may have spared life and property in many communities. But they came too late for Lac-Mégantic, Quebec, a Canadian lakeside resort town just across the border from Maine. A train derailment there on July 6, 2013, unleashed a torrent of burning crude oil into the town’s center. Forty-seven people were killed.
“Sometimes it takes a disaster to get elected officials and agencies to address problems that were out there,” said Rep. Michael Michaud, D-Maine, a member of the House of Representatives subcommittee that oversees railroads, pipelines and hazardous materials, who’s leaving Congress after six terms.
Other subsequent but nonfatal derailments in Aliceville, Ala., Casselton, N.D., and Lynchburg, Va., followed a familiar pattern: massive fires and spills, large-scale evacuations and local officials furious that they hadn’t been informed beforehand of such shipments.
The U.S. Department of Transportation will issue a set of new rules in January regarding the transportation of flammable liquids by rail.
“Safety is our top priority,” said Kevin Thompson, a spokesman for the Federal Railroad Administration,“both in the rule-making and through other immediate actions we have taken over the last year and a half.”
Nevertheless, McClatchy has identified other gaps in the oversight of crude by rail:
The Federal Railroad Administration entrusts bridge inspections to the railroads and doesn’t keep data on their condition, unlike its sister agency, the Federal Highway Administration, which does so for road bridges.
Most states don’t employ dedicated railroad bridge inspectors. Only California has begun developing a bridge inspection program.
The U.S. Department of Transportation concluded that crude oil from North Dakota’s Bakken shale region posed an elevated risk in rail transport, so regulators required railroads to notify state officials of large shipments of Bakken crude. However, the requirement excluded other kinds of oil increasingly transported by rail, including those from Canada, Texas, Wyoming, Colorado and Utah.
While railroads and refiners have taken steps to reserve the newest, sturdiest tank cars available for Bakken trains, they, too, have ruptured in derailments, and Bakken and other kinds of oil are likely to be moving around the country in a mix of older and newer cars for several more years.
We anticipate that crude by rail is going to stay over the long term
Kevin Birn, director of IHS Energy
Staying power
American railroads moved only 9,500 cars of crude oil in 2008 but more than 400,000 in 2013, according to industry figures. In the first seven months of 2014, trains carried 759,000 barrels a day – that’s more than 200,000 cars altogether – or 8 percent of the country’s oil production, according to the federal Energy Information Administration.
The energy boom, centered on North Dakota’s Bakken region, was made possible by hydraulic fracturing, or fracking, a horizontal drilling method that unlocks oil and gas trapped in rock formations. It was also made possible by the nation’s expansive rail system.
Crude by rail has become a profitable business for some of the world’s richest men. Warren Buffett, the billionaire investor, bought BNSF Railway in 2009. It’s since become the nation’s leading hauler of crude oil in trains. Bill Gates, the Microsoft founder and philanthropist, is the largest shareholder in Canadian National, the only rail company that has a direct route from oil-rich western Canada to the refinery-rich Gulf Coast.
Amid a worldwide slide in oil prices in recent weeks, crude by rail shows few signs of slowing down. The price per barrel of oil has dropped nearly 50 percent since last January. Still, the six largest North American railroads reported hauling a record 38,775 carloads of petroleum the second week of December.
“We anticipate that crude by rail is going to stay over the long term,” said Kevin Birn, director at IHS Energy, an energy information and analysis firm, and a co-author of a recent analysis of the trend.
Regulatory agencies and the rail industry may not have anticipated the sudden increase in crude oil moving by rail. However, government and industry had long known that most of the tank cars pressed into crude oil service had poor safety records. And after 180 years in business, U.S. railroads knew that track defects were a leading cause of derailments.
To be sure, railroads are taking corrective steps, including increased track inspections and reduced train speeds. They’ve endorsed stronger tank cars and funded beefed-up training for first responders.
Ed Greenberg, a spokesman for the Association of American Railroads, the industry’s principal trade group, said railroads began a “top-to-bottom review” of their operations after the Quebec accident.
“Every time there is an incident, the industry learns from what occurred and takes steps to address it through ongoing investments into rail infrastructure, as well as cutting-edge research and development,” he said. “The industry is committed to continuous improvement in actively moving forward at making rail transportation even safer.”
But the industry continues to resist other changes, including calls for more transparency. The dominant Eastern railroads, Norfolk Southern and CSX, sued Maryland to stop the state from releasing information to McClatchy about crude oil trains.
The industry also seeks affirmation from the courts that only the federal government has the power to regulate railroads. The dominant Western carriers, BNSF and Union Pacific, joined by the Association of American Railroads, sued California over a state law that requires them to develop comprehensive oil spill-response plans.
Two wake-up calls by Mother Nature, the passing of a father-figure icon, and a longtime symphony conductor’s surprising ouster were among this year’s news stories in Vallejo.
From a devastating earthquake to the drought, controversial one-year’s notice to Vallejo Symphony maestro David Ramadanoff, to a school board election that isn’t over to a new police chief, a horrific fire truck accident that avoided a fatality, and Valero’s crude oil plans, the 2014 Top 10 Stories list is presented below in its crowning, year-end glory by the Times-Herald staff.
10. The drought
Gov. Jerry Brown declared a statewide drought and the state announced cities would get only 5 percent of their allotment from the State Water Project.
In February, American Canyon council members declared a Stage 1 Drought Emergency and asked all customers to reduce water consumption by 20 percent.
The situation’s seriousness engendered unprecedented cooperation between Napa and Solano counties, with ways considered for Solano to share its reasonably stable Lake Berryessa water source with Napa County in what officials were by March calling a natural disaster. The problems especially impacted American Canyon because it relies most heavily on the State Water Project’s North Bay Aqueduct, which nearly had to be blocked by rocks to prevent falling water levels to allow salt water into the Delta. These plans were abandoned in May.
Stage one drought conditions persisted, however, and by July the state adopted emergency water regulations, and American Canyon officials declared a Drought Emergency Stage 2 mandatory compliance water alert. Authorities enforced a list of prohibited water uses including hosing down driveways, watering lawns, washing cars during the day and filling swimming pools.
Solano County water providers also took action in August to comply with the state’s first-ever emergency regulations mandating water conservation. Benicia mandated outdoor watering restrictions and Vallejo limited landscape watering to three days per week. By October, Benicia had reduced its water use by 18 percent.
9. North Mare Island plans
The future of North Mare Island became a hot-button issue as the city council began a “request for qualifications” process in July for proposals on how to develop more than 150 acres north of G Street.After dismissing three projects for “falling short if the city’s expectations,” the council In November heard information on eight proposals, which include three Indian casino projects, each along the lines of the $800 million Graton Casino & Resort that opened last year in Sonoma County. Other proposals involve industrial parks or mixed-use hotel and conference center projects on the city-owned land between Azuar Street and the Mare Island Strait.
The push to redevelop North Mare Island moved forward in early July when the city council approved the approval a $893,000 contract to demolish three former Navy buildings. The project is part of the city’s overall plan to accelerate the removal of up to 30 abandoned former Mare Island Naval Shipyard structures. Since the base closed in 1996, the buildings have been considered eyesores and an impediment to redevelopment activities.
8. Measure E and the school board election.
The name “Richard Porter” became well know in the city of Vallejo during 2014, as the school teacher early on in the fall sought election to the Vallejo City Unified School District Board of Education, only to change is mind and cancel his campaign.
Porter — who filed candidacy papers in August — suspended his campaign in early September to teach math and science at the Mare Island Health & Fitness Academy. Despite halting his campaign, more than 7,000 Vallejo voters decided to elect him, placing him second out of three available seats.
Due to state law, Porter can not serve on the board of education and teach in the district at the same time. Porter opted to stay as a teacher at the academy — refusing to be seated as a trustee — creating a vacancy on the board.
The board recently decided to seek a provisional appointment to fill the vacancy, while several community members have asked the board to appoint fourth place finisher Ruscal Cayangyang to fill the empty seat.
While receiving over 60 percent approval from the Vallejo electorate during the November election, Measure E — the school district’s $239 million general obligation bond, which would have helped to renovate various school district sites —failed to receive the required 66 percent approval to pass.
7. Vallejo Symphony gives notice to David Ramadanoff
The Vallejo Symphony Orchestra board of directors, citing stagnant season ticket sales and attendance, proclaimed David Ramadanoff’s 31st year leading the VSO as his last, upsetting many musicians and classical music supporters.
The symphony’s Jan. 25 concert at Hogan Auditorium and April 12 at Touro University’s Lander Hall will end Ramadanoff’s tenure in Vallejo while the board seeks a replacement.
6. New police chief Andrew Bidou
Benicia and Vallejo police departments swapped chiefs this year. Andrew Bidou took the Vallejo’s helm in October, replacing Joseph Kreins who led the department for more than two years.
Kreins, who retired from the position, then took over Benicia’s police department as an interim until a permanent chief is hired.
While in Vallejo, Kreins implemented many changes to the department, including community outreach, technology upgrades and policy overhaul.
Bidou, 45, was among 37 candidates for the job. His education and familiarity with the area were cited as reasons he was picked.
5. Fire truck rolls over
The Vallejo Fire Department’s tiller truck was involved in a violent traffic collision in August with three other vehicles, which began in the intersection of Maine Street and Sonoma Boulevard.
“The fire truck was responding to a code 3 (emergency) when a collision occurred with the fire truck and at least another vehicle in the intersection,” said Michael Nichelini, a sergeant with Vallejo Police, hours after the collision. “The (VFD) truck rolled down the street, at least once, after the collision.”
The ladder truck, when rolling, took out various street signs along Sonoma Boulevard finally coming to a rest in the intersection of Pennsylvania Street and Sonoma Boulevard after striking a fire hydrant and crushing another vehicle.
The crushed vehicle was flipped on its roof and the driver in the crushed vehicle required extraction.
Much of Sonoma Boulevard looked like a war zone, as glass and pieces from at least three vehicles and the fire truck were scattered in a two-block radius, while the fire truck was twisted into two directions after the collision and rollover. Firefighters Walter Trujillo, Mitchell Stockli, Frederick Taylor and Daniel Saballos, along with those in the other vehicles, survived the collision.
4. Valero’s crude oil plans
The Valero Benicia Refinery’s controversial proposed rail terminal project fueled debates in the community over crude-by-rail safety issues. If approved, the project would allow Valero to import up to 70,000 barrels of Bakken or Canadian tar sands oil daily by train. In June, the city released the project’s environmental impact report, leading to packed public hearings over the summer. People as far away as Roseville attended to voice opposition or support for the project, which would increase oil train traffic through the Sacramento Valley.
The city also received letters from state and local officials — including State Attorney General Kamala Harris — criticizing the project safety analysis as inadequate.
3. Homeless fires
A series of wild and structure fires were attributed to the homeless population in Vallejo this year.
The blazes destroyed several abandoned buildings on Mare Island, the now-razed “Badge and Pass Office” on Tennessee Street, and acres of vegetation along State Route 29. One of the structure fires also claimed the life of a Benicia man in October at a garage next to 1117 Florida St., which is known to be used by squatters.
Vallejo Fire Chief Jack McArthur said the department is working with police and city to design a reaction to the issue concerning homeless-related fires, and the safety concerns of the homeless population in the city.
2. Philmore Graham dies
Vallejo lost a legend this year. Philmore Graham, founder of the Continental of Omega Boys and Girls Club, died in June. Graham was 75.
He founded the club in 1966 with just five boys in his garage, and later churned out high school and college graduates who brought pride to their hometown, including ballplayer CC Sabathia, former pro football player Bobby Brooks, scriptwriter Gregory Allan Howard, and most recently Denver Broncos running back C.J. Anderson.
“Everything that we are and everything that we do is because of him,” Superior Court Judge Robert Rigsby, who is also an Omega alumnus, said in a June interview.
Graham suffered from Alzheimer’s in his last years, and had moved to Southern California several years ago to be closer to his daughter, Diedre.
1. South Napa earthquake
The magnitude 6 temblor — the strongest to hit the Bay Area in 25 years — rattled walls and nerves at about 3:10 a.m. Aug. 24, causing damage mostly in Napa and Solano counties.
Centered four miles northwest of American Canyon and six miles south-southwest of Napa, the quake caused brick chimneys to crumble all over the area and did particular damage to many of the older, non-reinforced masonry buildings in downtown Napa and Vallejo, including some on Mare Island.
While few and only minor injuries were reported in Vallejo, nearly 200 were hurt in Napa, two seriously, including a child who was critically injured by a collapsing chimney.
The 400 block of Vallejo’s Georgia street was closed for weeks following the partial collapse of a brick building, the repairs to which remain unfinished at year’s end.
There were a few reports of looting in Vallejo, but in American Canyon officials told of residents replacing items that had fallen out of broken store windows.
The governor issued an emergency proclamation extending relief to Napa, Solano and Sonoma counties. In Napa, some 69 buildings were red tagged. In Vallejo, 155 buildings were yellow-tagged for partial use, and 11 were red-tagged as unsafe to occupy. On Mare Island, crews demolished quake-damaged chimneys on historic officers’ mansions on Walnut Avenue.
The Napa Valley wine industry alone suffering estimated losses of $80,300,000.
Curtis Tate / McClatchyDecaying track and bridge conditions on the Alabama southern railroad could pose a risk to Tuscaloosa, Ala., population 95,000. Above, video of trains crossing the bridge.
Two wake-up calls by Mother Nature, the passing of a father-figure icon, and a longtime symphony conductor’s surprising ouster were among this year’s news stories in Vallejo.
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