Repost from the Davis Enterprise FORUM

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.