Tag Archives: EarthJustice

Enviros Sue California State Lands Commission Over Tesoro Terminal Lease

Repost from Law360

Enviros Sue Calif. Land Agency Over Tesoro Terminal Lease

By Juan Carlos Rodriguez, April 20, 2015, 5:59 PM ET

New York — Two environmental groups on Friday sued the California State Lands Commission for allegedly renewing Tesoro Refining and Marketing Co.’s lease at an oil receiving facility near San Francisco bay without adequately considering the business’ impacts on the surrounding area.

The Center for Biological Diversity and Communities for A Better Environment alleged the CSLC violated the California Environmental Quality Act in March when it renewed the 30-year lease for Tesoro’s Avon Marine Terminal. The CSLC’s Final Environmental Impact Report was faulty for a variety of reasons, including that it doesn’t specify what kind of oil will be imported to the terminal, the petition for a writ of mandate said.

It said the Avon Terminal imports crude oil feedstocks to Tesoro’s nearby Golden Eagle Refinery and exports refined petroleum products, like gasoline, diesel, and jet fuel.

“The EIR for the Avon Terminal fails as an informational document as it is conspicuously silent about the types of crude oil feedstocks that will be handled at the terminal and the additional risks that may be created by Tesoro’s plans to process lower quality and heavy crudes at the Golden Eagle Refinery,” the petition said.

It said that Tesoro plans to process increasing quantities of lower quality crude oil feedstocks at the Golden Eagle Refinery, including Bakken crude. The environmental groups said transporting and processing Bakken crude creates numerous health and safety risks because it’s highly volatile and is dirtier than most other crude feedstocks, releasing high levels of benzene, volatile organic compounds, and toxic air contaminants when processed.

The Avon Terminal EIR is deficient in other ways as well, according to the groups. They said that in analyzing the environmental effects of renewing the Avon Terminal lease, the EIR considers only the Avon Terminal’s effects and fails to consider the combined effects of Tesoro’s integrated facilities, including those of the refinery and another nearby terminal.

“This artificial isolation of the Avon Terminal improperly masks the full extent of the effects of Tesoro’s integrated refinery operations,” the petition said.

The EIR also underestimates the annual number of ships that will dock at the relicensed Avon Terminal over its thirty-year lease, resulting in an underestimation of the air, water, wildlife, and other impacts of the Avon Terminal’s future operations, according to the petition.

“As a result of these and related deficiencies, the EIR fails to fully inform the public and decision-makers of the project’s significant health, safety, and environmental impacts and fails to analyze and mitigate these impacts as the California Environmental Quality Act requires,” the petition said.

Contra Costa County hosts four of the five major petroleum refineries in northern California, and the fifth is nearby, the petition said, making it the second largest refining center in the western U.S. It said residents in the area suffer from high rates of asthma and many are ill-equipped to deal with these burdens, as more than half the residents are low-income minorities.

“Tesoro’s operations also affect wildlife. The project area provides habitat for state and federally listed species, such as coho and Chinook salmon and steelhead; delta smelt; green sturgeon; black and Ridgway’s rails; salt marsh harvest mouse; and three endangered plant species,” the petition said.

The environmental groups are asking the CSLC to void the EIR for the Avon Terminal lease approval; set aside and withdraw approvals of the project; and refrain from granting any further approvals for the Avon Terminal lease approval until the commission complies fully with the requirements of CEQA.

The CSLC declined to comment on the lawsuit Monday.

The plaintiffs are represented by Irene V. Gutierrez and Trent W. Orr of Earthjustice and Roger Lin.

Counsel information for the CSLC was not available Monday.

The case is Center for Biological Diversity et al. v. California State Lands Commission, number 15-0569 in the Superior Court of the State of California in and for the County of Contra Costa.

–Editing by Emily Kokoll.

Washington’s Swinomish sue to halt Bakken oil trains

Repost from High Country News

Washington’s Swinomish sue to halt Bakken oil trains

Many communities fight transport of crude oil through their towns; some find legal footing to succeed.

By Kindra McQuillan, April 16, 2015, Web Exclusive

To the Coastal Salish people living on Washington’s Swinomish Reservation, water remains an important aspect of daily life. Their ancestors fished for salmon at the mouths of Northwestern rivers and gathered shellfish on Pacific tidelands; modern Swinomish people still pursue these activities from their small reservation on the Puget Sound. Many fish for their own subsistence, and many work as employees of the Swinomish Fish Company, which serves international markets.

The Swinomish Reservation is surrounded by water. Swinomish Channel and Swinomish Reservation. Photograph courtesy of Joe Mabel

Even so, for more than 20 years, the Swinomish have consented to strictly regulated use of a railroad that crosses waters on either side of their island reservation. The track, operated by Burlington Northern Santa Fe LLC, crosses a swing bridge over Puget Sound’s Swinomish Channel, passes several Swinomish businesses, and then crosses a trestle over Padilla Bay, originally on its way to Anacortes, where it historically delivered lumber. A legal agreement between the tribe and the company limited the amount of traffic that would cross the reservation and waterways to Anacortes and required the company to inform the tribe about its cargo.

In the 1990s, the last section of railroad to Anacortes was removed, and the tracks ended on March Point, which houses two oil refineries. Burlington Northern fell behind on their annual reports, and the tribe assumed the trains were carrying supplies to the refineries.

But in 2012, reservation residents began to see 100-car trains—four times as long as the agreed maximum length. Then an Anacortes newspaper reported that the trains were carrying Bakken crude, a volatile oil that has figured in numerous train explosions in recent years, some of them deadly.

Burlington Northern had not informed the tribe that the cars carried this new, dangerous cargo, and ignored tribal requests to desist. So last week, the tribe filed a lawsuit in federal court. The suit asks the court to reinforce the original car limit and to prohibit the transport of Bakken crude via rail across the reservation.

“It’s not a matter of if another train will blow up; it’s a matter of when,” Brian Cladoosby, chairman of the Swinomish tribe, recently told me. “We want to make sure it doesn’t happen in our backyard.”

Police helicopter view of Lac-Mégantic, Quebec, the day a Bakken oil train derailed, killing 47 people in 2013. Photograph courtesy of Sûreté du Québec.

But while many Western communities are grasping for protection against dangerous shipments of crude oil, the Swinomish tribe has a unique instrument for getting it done.

The instrument has to do with the way tribal trust lands work. Tribal trust land, unlike much off-reservation land, requires consent from both the federal government and the tribe before utilities and railroad companies can build infrastructure. But for a century, Burlington Northern and its predecessor companies broke this law by maintaining a railway on the Swinomish reservation without consent from either. In the late 1970s, the tribe sued the company for a century of trespass, reaching a settlement in 1991 that gave the company an easement for continued use of the railway, albeit with a few restrictions: No more than one train could cross the reservation per day in each direction, none could have more than 25 cars, and Burlington Northern would have to inform the tribe of the trains’ cargo at least once per year.

Then came the Bakken boom, and with it a dramatic increase in traffic as trains rushed to carry oil from the Bakken to the West Coast, where ports could take the fuel to international markets. After seeing the traffic increase on their reservation, “the tribe had conversations with Burlington Northern,” says Stephen LeCuyer, director of the office of tribal attorney. “But in the meantime the tribe was seeing explosive derailments of Bakken oil trains, and reached the conclusion that they would not consent to an increase of over 25 cars per day.” After the tribe brought their concerns to Burlington Northern, the company said it wanted to negotiate. Meanwhile, the oil trains kept rolling.  That led to last week’s suit.

Burlington Northern has yet to file their case, but in a statement, company spokesperson Gus Melonas argues that it has a legal obligation to carry the oil.  “As a common carrier, we are obligated under federal law to move all regulated products, which ensures the flow of interstate commerce,” he said in a statement.

“The Easement Agreement includes a mechanism to address rail traffic volumes to meet shipper needs, and we have been working with the Swinomish Tribe for several years to resolve this issue.” The mechanism Melonas refers to is a stipulation in the agreement, wherein the tribe agrees not to “arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.”

To the tribes, this mechanism is null. Given the dangerous nature of Bakken crude, the tribe is confident it’s not making an arbitrary decision “in any way,” LeCuyer says.

Their complaint was filed with the U.S. District Court for the Western District of Washington, and was formally served on April 10. Burlington Northern must now file a response within 21 days of the formal complaint. At that point, the court will issue a schedule for hearings, and the case will eventually be decided by U.S. District Judge Robert Lasnik.

Jan Hasselman, an attorney with Earthjustice, an environmental law group that has handled many cases related to oil transportation, said the Swinomish argument appears “airtight.”

“BNSF made an agreement with them, and it violated that agreement,” he said. But Hasselman added that the case wouldn’t likely set a precedent for other communities. “Their agreement is pretty unique,” he said. “But this is yet another example of communities all across the country in different ways rising up to the threat of crude oil transportation.”

Last week, the National Transportation Safety Board issued urgent recommendations calling for the improvement of unsafe oil-tank train cars. Politicians like Sen. Maria Cantwell, D-Washington, and Seattle Mayor Ed Murray, D, are calling for greater oil train safety.

Earlier this year, Washington’s Quinault tribe was able to slow shipping of crude-by-rail near their reservation by challenging oil terminals that were being built without an environmental impact statement.

Meanwhile, the Swinomish Tribe is also testifying against a Canadian pipeline that would carry crude oil to ports in the Salish Sea, the body of water that encompasses the Strait of Georgia, the Strait of Juan de Fuca, and the Puget Sound. Alternative forms of oil transportation, like pipelines and barges, may be safer to human communities, but they would still put fisheries at risk.

“We, of course, always have concern about tankers hitting our reefs,” Cladoosby says. “Thank God that has never happened. We live on an island surrounded by water. We’ve lived here since time immemorial, and the Creator has blessed us with every species of wild salmon. We work very hard to take care of it.”

Swinomish Chairman Brian Cladoosby and his father. Photograph courtesy of Flickr user Ecotrust.
Kindra McQuillan is an editorial intern with

High Country News.

Environmentalists play ‘Whac-A-Mole’ to stall crude-by-rail projects

Repost from Environment & Energy Publishing (EEnews.net)

Environmentalists play ‘Whac-A-Mole’ to stall crude-by-rail projects

By Ellen M. Gilmer and Blake Sobczak, March 20, 2015
(Second of two stories. Read the first one here.) [Subscription required]

When an oil company’s expansion plans for Pacific Northwest crude by rail suffered a major setback last month, environmentalists spread the news just as quickly as they could Google “Skagit County Hearing Examiner.”

The little-known local office about an hour north of Seattle holds the keys to land use in the area, and environmental attorneys saw it as the best shot to stall a rail extension considered critical for the delivery of crude oil to a nearby Shell Oil Co. refinery, but potentially disastrous for nearby estuaries and communities.

The effort was successful: After environmental groups appealed a county-level permit for the rail project, Skagit County Hearing Examiner Wick Dufford sent the proposal back to the drawing board, ordering local officials to conduct an in-depth environmental impact statement to consider the broad effects of increased crude-by-rail throughout the county.

“The environmental review done in this case assumes that the whole big ball of federal, state and local regulations will somehow make the trains safe. And that if an accident happens, the response efforts described on paper will result in effective clean up, so that no significant adverse effects are experienced,” Dufford wrote. “There is no proven basis for such conclusions.”

The decision was an incremental but significant victory for environmental groups, sending a signal to industry that its increasing reliance on railed-in crude could face formidable hurdles.

Skagit County is just one piece of a larger plan to expand crude-by-rail across the country to better connect refineries and ports with prolific oil plays like North Dakota’s Bakken Shale. The use of rail to deliver crude oil has skyrocketed in recent years, rising from 9,500 tank cars of crude in 2008 to nearly 500,000 carloads in 2014, according to industry data. Projects in Washington and other refinery hubs aim to expand facilities and extend rail spurs to handle even more crude deliveries.

Shell spokesman Curtis Smith said the company is “confident that we can satisfy any remaining issues associated with the project” to add rail capacity to its Puget Sound Refinery in Skagit County.

“This project is critical to the refinery, the hundreds of employees and contractors who depend on Shell, and the regional economy,” he said. “We do not feel it should be held to a different standard than the crude-by-rail projects of the neighboring refineries that have been approved.”

Smith added that “we all share the top priority of safety.”

But the new reality of crude-by-rail traffic has environmentalists on edge. Oil train derailments in Illinois, West Virginia, North Dakota and other places have led to fires, spills and, in one case, lost lives. A 2013 crude-by-rail explosion in Lac-Mégantic, Quebec, killed 47 people, prompting regulators in the United States and Canada to review the inherently piecemeal rules governing crude-by-rail transportation.

The federal government has authority over certain details, such as standards for tank cars used to haul crude. But most expansion plans and related environmental concerns are left to local agencies situated along oil routes. The result is a hodgepodge of permitting decisions by local authorities following varying state laws, while a team of environmental lawyers challenges expansion projects one by one.

“It’s a little bit like Whac-A-Mole because there isn’t a big permitting scheme,” said Earthjustice attorney Kristen Boyles, who represented six environmental groups in the Skagit County appeal. “It makes it difficult and makes it frustrating for the public.”

State laws in play

So far, the Whac-A-Mole approach is working well for environmentalists.

After three oil refineries in Washington went unopposed in building facilities to receive rail shipments of crude oil, Boyles said environmentalists and community advocates began tracking local land-use agencies more closely.

Earthjustice and the Quinault Indian Nation successfully challenged two proposed crude projects in Grays Harbor County, southwest of Seattle, leading a review board to vacate permits and require additional environmental and public health studies. A third Grays Harbor project is also preparing a comprehensive environmental review.

The next project on environmentalists’ radar is in Vancouver, Wash., just across the Columbia River from Portland, Ore., where Savage Cos. and Tesoro Refining and Marketing Co. have proposed building a new terminal to transfer railed-in crude oil to marine tankers bound for West Coast refineries. The Sierra Club, ForestEthics and several other groups earlier this month moved to intervene in the state agency review process for the project, citing major threats to the Columbia River and public health.

The key to all of these challenges is Washington’s State Environmental Policy Act (SEPA). Similar to the National Environmental Policy Act, SEPA requires government agencies to conduct a broad environmental impact statement for any major actions that may significantly affect the environment.

For projects in Skagit County, Grays Harbor and now Vancouver, state and local officials considering challenges look to SEPA to determine how rigorous environmental review must be, based on whether projects are expected to have major impacts. To Dufford, the Skagit examiner, the answer is plain.

“Unquestionably, the potential magnitude and duration of environmental and human harm from oil train operations in Northwest Washington could be very great,” he wrote.

Down the coast in California, environmentalists have an even stronger tool: the California Environmental Quality Act. Considered the gold standard in state-level environmental protection laws, CEQA has already proved useful in halting a crude-by-rail expansion project in Sacramento.

In Kern County, a team of environmental attorneys is also relying on CEQA to appeal construction permits for the Bakersfield Crude Terminal, a project that would ultimately receive 200 tank cars of crude oil per day. The local air quality board labeled the construction permits as “ministerial,” bypassing CEQA review, which is required only for projects considered discretionary. A hearing is set for next month in Kern County Superior Court.

Earthjustice attorney Elizabeth Forsyth, who is representing environmental groups in the Bakersfield case, said the state environmental law has been powerful in slowing down the rapid rise of crude-by-rail operations.

“In California, we have CEQA, which is a strong tool,” she said. “You can’t hide from the law. You can’t site your project out in some town that you think won’t oppose you.”

Unified strategy?

Still, the one-at-a-time approach to opposing crude-by-rail growth is undoubtedly slow-going, and progress comes bit by bit.

Boyles noted that Earthjustice attorneys from Washington to New York frequently strategize to “unify” the issues and make broader advances. On tank cars, for example, environmental groups have come together to press the Department of Transportation to bolster safety rules.

“That at least is some place where you could get improvements that could affect every one of these proposals,” she said.

But for expansion projects, the effort must still be localized.

“You have this giant sudden growth of these sort of projects, and that’s the best we can do at this point to review each of them and comment,” said Forsyth, the California lawyer, who said the end goal is to empower local agencies to control whether proposals move forward and to mitigate the impacts when they do.

Though labor-intense, advocates say the approach has paid dividends. Projects that would have otherwise flown under the radar are now under rigorous review, and industry players no longer have the option of expanding facilities quietly and without public comment.

“If you hadn’t had these citizens challenging these projects,” Boyles said, “they’d be built already; they’d be operating already.”

The delays have set back refiners seeking to use rail to tap price-advantaged domestic crude — particularly in California.

“The West Coast is a very challenging environment,” noted Lane Riggs, executive vice president of refining operations at Valero Energy Corp., which has faced staunch environmentalist opposition at a proposed oil-by-rail terminal in Benicia.

Riggs said in a January conference call that “we’re still pretty optimistic we’ll get the permit” for the 70,000-barrels-per-day unloading terminal at its refinery there, although he added that “timing at this point is a little bit difficult.”

Facing pressure from concerned locals and the Natural Resources Defense Council, Benicia officials last month opted to require updates to the rail project’s draft environmental impact review, further delaying a project that was originally scheduled to come online in 2013.

A Phillips 66 crude-by-rail proposal in San Luis Obispo County, Calif., has encountered similar pushback. If approved, the project would add five 80-car oil trains per week to the region’s track network. The potential for more crude-by-rail shipments has drawn opposition from several local city councils and regional politicians, despite Phillips 66’s pledge to use only newer-model tank cars (EnergyWire, Jan. 27).

Some town leaders have also separately taken action against railroads bringing oil traffic through their neighborhoods, although federally pre-emptive laws leave cities vulnerable to legal challenges (EnergyWire, March 19).

‘Business as usual’

Local, often environmentalist-driven opposition is seen as “business as usual” within the refining industry, according to Charles Drevna, president of the American Fuel and Petrochemical Manufacturers.

“This is just another extension of the environmental playbook to try to obfuscate and delay,” said Drevna, whose trade group represents the largest U.S. refiners. “We’ve been dealing with that for years, and we’re going to continue to be dealing with it.”

While Drevna said he doesn’t see lawsuits “holding up any of the plans” for refiners to improve access to North American oil production, environmentalists chalk up each slowdown to a victory.

In New York, a plan to expand a key crude-by-rail conduit to East Coast refiners has been held in limbo for over a year at the Port of Albany, owing to an environmentalist lawsuit and closer public scrutiny.

The proposal by fuel logistics firm Global Partners LP would have added a boiler room to an existing facility to process heavier crude from Canada. But advocacy groups including Riverkeeper have challenged the company’s operating air permit, calling for more review by New York’s Department of Environmental Conservation (EnergyWire, Jan. 13, 2014).

“All of the actions we’ve taken with Earthjustice and others have really ground to a halt DEC’s repeated approvals of these minor modifications,” said Kate Hudson, watershed program director for Riverkeeper. “We have not seen tar sands. … The river has been spared that threat for a year-plus, at this point.

“We certainly have no regrets,” she said.

Top 10 Questions About Oil Trains: Industry Lobbies for Weak Rules While Derailment Fire Rages

Repost from The Huffington Post

Top 10 Questions About Oil Trains: Industry Lobbies for Weak Rules While Derailment Fire Rages

By Todd Paglia, ForestEthics, 03/19/2015 1:59 pm EDT
DERAILMENT
DERAILMENT Marvin Beatty via Getty Images

On Friday, March 6, while an oil train explosion in Illinois was still sending flames and black smoke into the air, railroad agents were in Washington, DC lobbying to weaken new train safety standards. Safer brakes are “extremely costly…” they told White House officials, and explained in great detail why speed limits are impractical. Like the auto industry resisting seatbelts, the rail industry is on the wrong track when it comes to safety.

In the last month, there have been six derailments of crude oil trains in the U.S. and Canada — three of them ignited, sending flames and mushroom clouds hundreds of feet into the air. Luckily, these were in relatively remote locations and no one was killed.

These disasters are not an aberration — oil train traffic is skyrocketing, which means more derailments and more explosions. The oil and rail industries hope to increase further the amount of crude oil barreling down the tracks in the coming years. Before that happens, ForestEthics has some questions we’d like to see the Obama administration ask the army of lobbyists who are trying to push the bar on safety even lower than it already is:

When did trains start exploding?
Rail transportation of crude oil is growing rapidly and dangerously — from fewer than 10,000 carloads in 2008 to nearly half a million in 2014 — for two reasons: Bakken oil from North Dakota and Canadian tar sands. The North American boom means oil companies are trying to tails and mine more of this extreme oil, crude that is high in carbon, difficult and expensive to produce, and dangerous to transport.

Are cities and towns with rail lines safe?
With the exception of Capitol Hill (the rail industry seems to be sparing Washington, DC) most routing is done specifically throughout cities and towns. No, the oil and rail industries are probably not purposely targeting us, it’s just that the rails in populated places tend to be better maintained and rated for heavier cargoes. The sane thing to do would be to stop hauling crude oil if it can’t be transported safely. A far distant next best is to make these trains as safe as possible and require rerouting around cities and water supplies.

What is the government doing?
Not nearly enough. While 100-plus car trains full of an explosive crude roll through our towns, the U.S. government is barely moving, bogged down by nearly 100 of Washington’s most expensive K-Street lobbyists. In fall 2014, ForestEthics, Earthjustice, and the Sierra Club sued the Department of Transportation to speed up new safety standards on oil trains. We called the trains an imminent danger to public safety. The federal government responded by once again delaying their decision on new rules that have been in the works for years.

What is the slowest speed at which an oil explosion could happen?
An oil tank car can catch fire and explode in an accident at zero miles per hour. Assuming a slightly raised rail bed, an oil car that tips over while standing still (this can and has happened on poorly maintained rails) will strike the ground going approximately 16 miles per hour — more than fast enough to breach the tank, spark, and ignite if it hits a rock, a curb, any hard protrusion.

Do firefighters know when and where oil trains are moving?
First responders do not know when, where, how much oil, and what kind is coming through their town. The US Department of Transportation ordered that railroads and oil companies make this information public. But only for trains carrying more than a million gallons of Bakken crude, and even this information is not being made public on a consistent basis.

How do you extinguish oil train fire?
You don’t put out an oil train fire; nobody does. Oil fires require specialized foam, which fire departments do not have in nearly sufficient supply to fight the fire from even a single 30,000 gallon tank car. All firefighters can do is evacuate those in danger, move outside the one mile blast zone and let the fire burn out, which can take days. In Illinois, firefighters unloaded their equipment to fight an oil train fire, realized the danger and left behind $10,000 in equipment getting out of harm’s way. You can prevent these fires by banning oil trains — but you can’t fight these fires once they happen.

The older oil cars are definitely unsafe, what about the newer ones?
The antiquated DOT-111 tank cars make up 80 percent of the fleet in the U.S. — U.S. rail safety officials first called them “inadequate” to haul crude oil more than 20 years ago. The jury is now in on the newer CPC-1232 tank cars and they are not much safer. The derailments and explosions in West Virginia and Illinois were 1232s traveling at or below the speed limit. In fact, the former head of the federal rail safety agency said in a radio interview that the recent derailments and fires were “the last nail in the coffin” for the CPC-1232 as an alternative to DOT-111 for oil transport.

We know that Bakken crude explodes; does tar sands explode?
Ordinarily it might not, but to move tar sands by rail (or pipeline for that matter) you have to mix in highly flammable, toxic diluents (light petroleum products like propane.) So if it’s on a train or in a pipeline the flashpoint for tar sands crude is lower than for Bakken oil. The oil train explosion on February 16, 2015 in Ontario, Canada occurred in -40 degrees F weather — proving that this stuff can ignite even in arctic cold. So not only is tar sands the dirtiest oil on Earth, but also it may well be the most dangerous too.

Do I live in the Blast Zone?
ForestEthics used oil rail routes from industry, Google maps, and census data to calculate that 25 million Americans live in the oil train blast zone — the dangerous evacuation zone in the case of an oil train derailment and fire. You can use the map to see if your home, office, school, or favorite natural area, landmark or sports stadium is in danger. Visit www.blast-zone.org.

What’s the solution?
The solution is to ban oil trains. If you can’t do something safely, you shouldn’t do it at all. This cargo is too dangerous to our families, our cities, our drinking water, our wildlife and our climate. The extreme crude carried on trains is only a tiny fraction of the oil we use each day as a nation. So while we transition our economy to clean energy and get beyond all oil, we should leave this extreme oil from Alberta and North Dakota in the ground.

See original post on ForestEthics.org and share your concern with President Obama on rail safety here.