CALIFORNIA ATTORNEY GENERAL: “For Benicia to turn a blind eye…”

By Roger Straw, April 14, 2016, 5:28 PM PDT

California Attorney General Kamala Harris: letter disagrees with City of Benicia staff, consultants and Valero

Today the City of Benicia received a letter from California Attorney General Kamala Harris disagreeing with City staff, consultants and Valero Refinery.

The letter asserts that Benicia’s Planning Commission and City Council have every right to deny a land use permit for Valero’s proposed Crude by Rail offloading rack.

Significant excerpts:

“For Benicia to turn a blind eye to the most serious of the Project’s environmental impacts, merely because they flow from federally-regulated rail operations, would be contrary to both state and federal law.”

“City Staff has asserted that Benicia is “legally prohibited” from denying the Project based on the rail-related impacts disclosed in the Revised Draft EIR. Valero agrees with City Staff, asserting, ‘the City Council’s hands are, in effect, tied by the law of federal preemption.’

“We disagree that the City is prohibited from considering the Project’s eleven significant and unavoidable rail-related environmental impacts when exercising its local land use authority.

“Where, as here, an oil company proposes a project that is not subject to STB regulation and over which a public agency retains discretionary permitting authority, it would be a prejudicial abuse of discretion for that agency not to consider all of the project’s foreseeable impacts in exercising its authority.

“A failure to include all of a project’s potential environmental impacts in the CEQA analysis, or to disregard that information in making a decision like the one regarding Valera’s Use Permit, not only would defeat the purpose of CEQA, but would be an abuse of discretion.”

“Under federal law, the City retains its authority to take discretionary action to approve or deny Valero’s Project. In exercising that authority, state law requires the City to analyze and disclose the Project’s direct and indirect environmental impacts, and thus to be fully informed of the consequences of its action. The. City has done that here, and its action has not interfered with federally regulated activities. Valero’ s assertion that the Planning Commission’s action was illegal is without merit.”

To download the full 5 page letter, click here.