MARILYN BARDET: Comment at Benicia City Council on 3/22 – Valero’s request for a delay

By Marilyn Bardet, March 22, 2016

Benicia City Council on March 22, public comment – Valero’s request for a delay

Valero’s request for delay in the appeal process to acquire a declaration from STB on the scope of preemption interferes with local politics with far-reaching ramifications.

On March 15th, at the opening hearing of Valero’s appeal of the Planning Commission’s long deliberations and unanimous decisions to deny certification of the FEIR, and to deny the Crude-By-Rail Project a permit for construction, it was very clear that Valero’s attorney John Flynn surprised everybody — our City Staff, and all of you, Mayor and councilmembers, and the public — by announcing a request for an indefinite delay in the appeal process, to enable Valero to solicit an opinion from the Surface Transportation Board, an agency under the Federal Dept. of Transportation, on the scope and breadth of preemption law. What a surprise indeed, since the role of the STB is to exclusively address rail carrier companies’ concerns and controversies, not those raised by oil companies.

We can’t forget how you expressed your dismay and discomfort:
Councilmember Hughs, you’d remarked how you were “caught off guard”, showing by your words and expression the effect of Valero’s unexpected request on the whole council. Councilmember Campbell, you’d reacted with stronger language, declaring that Valero’s request felt like “a threat.”

You’d each asked Mr. Flynn why Valero had waited so long to petition the STB, especially if the STB’s opinion were considered crucial to public discussion of Valero’s project. Afterall, our City Staff, ESA consultants, or Valero’s attorneys, could have solicited the STB two years ago when the Draft EIR was being developed. Letters submitted to the City by Valero’s attorneys, Mr Flynn and Mr. Walsh, were included in the Revised DEIR’s Appendix H. Those letters made explicit their case that Preemption renders the requirements of CEQA, the California Environmental Quality Act, largely irrelevant with regard to any significant direct or indirect impacts cited in the DEIR that would be associated to Project-related rail operations. Valero has repeatedly made this case over the last three years.

So, why do they appear to express such doubt in their own legal opinions now?

Whatever reply the STB might deliver to Valero at any future point in time would not stand to legally resolve the controversy over preemption’s authority, nor ipso facto neutralize requirements of CEQA, which call for thorough discussion of significant impacts of a project, for feasible and effective mitigations plans that would reduce or eliminate those impacts, and also, very importantly, for feasible alternatives to the Project. It’s worth remembering that the FEIR declared that the Environmentally Superior Project would be the “No Project Alternative.”

We must ask: why is soliciting STB for an opinion so necessary to “everyone” right now, as Valero’s attorney asserted?

When questioned, Mr. Flynn admitted that it could take one month for their office — presumably with green light from corporate, in San Antonio — to prepare and file their official request to the STB, and that it could take anywhere from 3 – 6 months to receive a reply, with no guarantee that one would be forthcoming even then. Presumably, Valero would be summarizing, on their own terms to STB, the views of legal experts who have testified against the broad view of preemption that Valero stands by.

In the wake of their unwelcomed request for delay, general confusion has been sown for our City Staff, this council, and our community at large and for all those communities “uprail.”However, huge political stakes have been put into play by Valero’s delay maneuver. There are many questions raised by their request, and far-reaching local and statewide political ramifications, should you approve a delay.

We know that the controversy swirling around preemption is relevant to the decisions to be made in other cities and regions in California and across the US faced with proposed crude-by-rail projects, including in San Luis Obispo County.

Most important to our City and our community:

It appears that Valero is willingly going out on a limb to interject their interests into local politics for the upcoming campaign season, and to reach beyond it.

Do you feel the set up?

Valero’s delay appears to aim to suspend or neutralize further discussion of the Project in the political arena, based on a dubious need to hear from STB, thus to focus almost exclusive attention on Preemption while avoiding discussion of local impacts under land use jurisdiction of the City of Benicia.

So let’s take stock of where we stand right now.

The City retains authority under CEQA over the land use decision governing the siting of the Project on Valero’s private property and the significant impacts that can be fairly anticipated associated to its proposed location.

Our City Attorney and Mr. Hogin are obligated to advise council on your options with regard to Valero’s request for delay. Your mandate is to preserve the independent and legitimate authority of our City on issues of land use, and thereby you must aim to preserve the welfare and wellbeing of our community.

In my view, and that of many others, you must proceed to a fair and objective determination on the most momentous and critical land use issue in decades to come before our planning commission and now this council. (Some say since WWII !)

We hope you will make a wise decision on April 4th and reject Valero’s bid for delay, with respect for public involvement and continuing public hearings on their appeal.

Thank you for your attention. — Marilyn Bardet, Benicia