Tag Archives: California Attorney General Kamala Harris

Are California foie gras, oil train court cases on parallel tracks?

Repost from McClatchyDC News
[Editor: Despite the curious analogy to foie gras, this is a SERIOUS discussion of Federal pre-emption and California’s attempt to regulate crude by rail.  Apologies for the auto-play video.  – RS]

Are California foie gras, oil train court cases on parallel tracks?

By Curtis Tate, January 15, 2015
US NEWS RAIL-SAFETY 1 WA
On April 30, 2014, a CSX train carrying Bakken crude oil derailed in downtown Lynchburg, Va. No one was injured or killed but three tank cars went into the James River, spilling 30,000 gallons of oil and igniting a fire. CURTIS TATE — TNS

WASHINGTON — Perhaps the only imaginable connection between trains and foie gras, the famous French delicacy obtained by force-feeding duck or geese to fatten up their livers, would be as an appetizer in the dining car of the luxury Orient Express.

Ah. Pas vrai.

A California court recently overturned the state law against selling foie gras because poultry regulation is a federal concern. And that’s just what the railroad industry is arguing about a state law enacted last year requiring it to develop oil spill response plans.

The law came about as an expected increase in crude oil transported to California by rail raised concerns about public safety and emergency response.

Like the restaurants that serve foie gras and the industry that supplies it, railroads have decided they won’t be forced to swallow a state law that they think is pre-empted by a federal one.

In the foie gras case, a producer and a restaurant that served it argued that California’s attempt to choke off sales ran afoul of the federal Poultry Products Inspection Act. Last week, a U.S. district judge agreed, citing the Supremacy Clause of the Constitution, which gives Congress the ability to displace state laws.

Similarly, the Association of American Railroads, the rail industry’s principal advocacy organization, and two of California’s major railroads, Union Pacific and BNSF, argue that the Federal Rail Safety Act derails the state’s oil spill response requirements.

According to some attorneys who know the issue well, California’s law is heading to the end of the line.

“I don’t think the court will struggle with this,” said Kevin Sheys, a Washington attorney who advises railroads but has no involvement in the California case. “The law will be struck down.”

Environmental groups, however, argue that other federal laws apply to the railroads. Patti Goldman, a Seattle-based attorney with Earthjustice, an environmental group, said the Clean Water Act and the Oil Pollution Act, the latter passed in response to the Exxon Valdez oil tanker disaster, gave states the power to enact stricter oil spill response requirements than federal ones.

That’s in contrast to the Federal Rail Safety Act, which doesn’t allow states much room to exceed what’s required at the federal level. A court decision that weighs more heavily on the rail safety act would favor the railroads. A reliance on federal water pollution laws would favor the state.

“The structures for pre-emption in there are almost polar opposite,” Goldman said. “The federal government sets a minimum standard, and the states can go further. All of that is a structure that is meant to preserve state authority.”

Sometimes pre-emption works in California’s favor. Opponents of the state’s $68 billion high-speed rail system tried to slow down the project by arguing that it was subject to the California Environmental Quality Act and required extensive impact reviews.

But in a 2-1 ruling last month, the federal Surface Transportation Board said the project was exempt from the state law. Last week, state and federal officials, including Gov. Jerry Brown, broke ground on the project in Fresno.

As a more practical matter, railroads have largely prevailed in pre-emption cases because courts have been sympathetic to the notion that a patchwork of 50 different state laws could unreasonably burden interstate commerce.

In a notable case in Washington, D.C., a decade ago, a federal court struck down a local law that prohibited the shipment of hazardous materials by rail within two miles of the Capitol. A busy CSX freight line runs only blocks away, and the law would have forced lengthy and expensive detours of hazardous cargo.

But a massive increase in the transportation of crude oil by rail in recent years, and with it an increase in high-profile accidents, has exposed gaps in safety and emergency preparedness. California is bracing for a big increase in crude by rail, and last year the legislature extended the state’s oil spill response requirements to cover inland waterways.

That, naturally, affected railroads, which historically followed rivers because of the level terrain for heavy trains, including California’s Feather and Sacramento rivers.

The Association of American Railroads declined to comment on the California case, but spokesman Ed Greenberg noted that railroads “have extensive emergency plans in place, which include procedures in working with local first responders” and have “stepped-up emergency response capability planning and training.”

David Beltran, a spokesman for California Attorney General Kamala Harris, who’s defending the law, wouldn’t comment on the case beyond what’s in court filings.

State Sen. Jerry Hill, a San Mateo Democrat, said the attorney general’s office had assured him that the law wouldn’t be pre-empted when it came before his committee last year.

“We feel comfortable based on the legal opinions we have,” Hill said.

He thinks it’s premature to predict that the law will be invalidated. But Hill said that he and others who supported it should be prepared for that outcome.

“Everyone would regroup and try to find a way to meet the goals that we’re trying to achieve,” he said.

Harris, who’s said she’ll run next year for the U.S. Senate seat of retiring Democrat Barbara Boxer, also defended the foie gras ban. She tried to have that suit dismissed by arguing that she had no present intent on enforcing the law while reserving the right to do so.

That prompted a quip from Judge Stephen Wilson in his 15-page ruling striking it down: “Defendant seeks to have her paté and eat it, too.”

Harris made a similar argument in the rail case.

“I think it’s going to be decided the same way,” said Mike Mills, an oil and gas attorney in Sacramento. “I don’t see a different outcome.”

Mills said the California case might put a federal solution on a faster track.

The U.S. Department of Transportation issued an Advance Notice of Proposed Rulemaking in August for a new regulation that would require railroads hauling crude oil to have comprehensive oil spill response plans. The rule would apply uniformly across all states, and it would achieve what California tried to do on its own.

“Oftentimes, litigation will produce a decision that forms the basis for new legislation,” Mills said. “Potentially, it could happen.”

The Fight to Stop a Boom in California’s Crude by Rail

Repost from The Huffington Post
[Editor: Our friend here in Benicia, Ed Ruszel, has been featured in numerous online blogs and news outlets in this story by Tara Lohan.  This is an abbreviated version.  The article mistakenly gives a link to The Benicia Independent rather than Benicians for a Safe and Healthy CommunityBSHC can be found at SafeBenicia.org.  – RS]

The Fight to Stop a Boom in California’s Crude by Rail

By Tara Lohan, 01/08/2015

Ed Ruszel’s workday is a soundtrack of whirling, banging, screeching — the percussion of wood being cut, sanded and finished. He’s the facility manager for the family business, Ruszel Woodworks. But one sound each day roars above the cacophony of the woodshop: the blast of the train horn as cars cough down the Union Pacific rail line that runs just a few feet from the front of his shop in an industrial park in Benicia, California.

Most days the train cargo is beer, cars, steel, propane or petroleum coke. But soon, two trains of 50 cars each may pass by every day carrying crude oil to a refinery owned by neighboring Valero Energy, which is hoping to build a new rail terminal at the refinery that would bring 70,000 barrels a day by train — or nearly 3 million gallons.

And it’s a sign of the times.

Crude-by-rail has increased 4,000 percent across the country since 2008 and California is feeling the effects. By 2016 the amount of crude by rail entering the state is expected to increase by a factor of 25. That’s assuming the industry gets its way in creating more crude-by-rail stations at refineries and oil terminals. And that’s no longer looking like a sure thing.

Valero’s proposed project in Benicia is just one of many in the area underway or under consideration. All the projects are now facing public pushback–and not just from individuals in communities, but from a united front spanning hundreds of miles. Benicia sits on the Carquinez Strait in the northeastern reaches of the San Francisco Bay Area. Here, about 20 miles south of Napa’s wine country and 40 miles north of San Francisco, the oil industry may have found a considerable foe.

2015-01-08-16000050785_df993da9dc_z.jpg

Photo by Sarah Craig

A recent boom in “unconventional fuels” has triggered an increase in North American sources in the last few years. This has meant more fracked crude from North Dakota’s Bakken shale and diluted bitumen from Alberta’s tar sands.

Unit trains are becoming a favored way to help move this cargo. These are trains in which the entire cargo — every single car — is one product. And in this case that product happens to be highly flammable.

This is one of the things that has Ed Ruszel concerned. He doesn’t think the tank cars are safe enough to transport crude oil in the advent of a serious derailment. If a derailment occurs on a train and every single car (up to 100 cars long) is carrying volatile crude, the dangers increase exponentially. In 2013, more crude was spilled in train derailments than in the prior three decades combined, and there were four fiery explosions in North America in a year’s span, the worst being the derailment that killed 47 people and incinerated half the downtown in Lac Megantic, Quebec in July 2013.

Public Comments

In Benicia, a Draft Environmental Impact Report (DEIR) regarding the Valero project was released in June 2014 and promptly slammed by everyone from the state’s Attorney General Kamala Harris to the local group Benicians for a Safe and Healthy Community because it left out crucial information and failed to address the full scope of the project.

One of the biggest omissions in Valero’s DEIR was Union Pacific not being named as an official partner in the project. With the trains arriving via its rail lines, all logistics will come down to the railroad. Not only that, but the federal power granted to railroad companies preempts local and regional authority.This preemption is one of the biggest hurdles for communities that don’t want to see crude-by-rail come through their neighborhoods or want better safeguards.

The DEIR also doesn’t identify exactly what kind of North American crude would be arriving and from where. Different kinds of crude have different health and safety risks. Diluted bitumen can be nearly impossible to clean up in the event of a spill and Bakken crude has proved more explosive than other crude because of its chemical composition. It’s likely that some of the crude coming to Valero’s refinery would be from either or both sources.

Public comments on the DEIR closed on Sept. 15, and now all eyes are on the planning department to see what happens next in Benicia.

But the Valero project is just the tip of the iceberg in California.

In nearby Pittsburgh, 20 miles east of Benicia, residents pushed back against plans from WestPac Energy. The company had planned to lease land from BNSF Railway and build a new terminal to bring in a 100-car unit train of crude each day. The project is currently stalled.

But Phillips 66 has plans for a new rail unloading facility at a refinery in Nipomo, 200 miles south of the Bay Area in San Luis Obispo County, that would bring in five unit trains of crude a week, with 50,000 barrels per train.

Further south in Kern County in the heart of oil country, Plains All American just opened a crude by rail terminal that is permitted for a 100-car unit train each day. Another nearby project, Alon USA, received permission from the county for twice as much but is being challenged by lawsuits from environmental groups.

Closer to home, unit trains of Bakken crude are already arriving to a rail terminal owned by Kinder Morgan in Richmond. Kinder Morgan had been transporting ethanol, but the Bay Area Air Quality Management District allowed Kinder Morgan to offload unit trains of Bakken crude into tanker trucks.

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Photo by Sarah Craig

With all this crude-by-rail activity, some big picture thinking would be helpful. As Attorney General Kamala Harris wrote about the Benicia project, “There’s no consideration of cumulative impacts that could affect public safety and the environment by the proliferation of crude-by-rail projects proposed in California.”

A longer version of this story appeared on Faces of Fracking.

San Francisco Chronicle: How crude-by-rail — and other debates — are censored

Repost from SFGate, Opinion Shop

How crude-by-rail — and other debates — are censored

By Lois Kazakoff, January 2, 2015
Valero seeks to modify its Benicia refinery to bring in two 50-car trains a day of crude oil.
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.

Vallejo Times-Herald: Valero’s controversial crude oil plans ranked 4th in top 10 stories of 2014

Repost from The Vallejo Times-Herald

Times-Herald’s Top 10 local stories of 2014

By Times-Herald staff report, 01/01/15

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.