Tag Archives: Exxon Valdez

Alabama controversy over tank farm expansion – lessons for us all

Repost from New American Journal
[Editor:  This is a telling tale of local governance confronting – or not confronting – difficult issues, and serves as instructional material for others who take up local advocacy.  Good graphics.  – RS]

Tank Farm Harvest Plans in Mobile — Crude Oil Is the Crop — But What Gets Plowed Under?

By David Underhill, March 31, 2015 
Tank farm city, with more scheduled: Glynn Wilson

MOBILE, Ala. – The tank farms became a hot potato, singeing any official who touched them.

Residents near sites for new or expanding tank farms fired complaints at the city’s planning commission, which readily tossed the heated hassle to the city council. A majority poised to pass a moratorium on construction of tank farms, until promoters of these projects maneuvered to whittle away that majority.

That spawned a citizens’ committee to study the issue and make recommendations to the planning commission, which appointed a subcommittee to receive these recommendations. That subcommittee is now juggling the spud before lobbing it back to the full planning commission, which will fling it again to the city council, which will … who knows.

Last week the subcommittee’s three members met to ponder. Joining them were the planning commission’s lawyer and head staffer. Although this happened in public it wasn’t a public meeting. Citizens could sit and listen but not participate.

The audience sorted themselves, as usual, into factions: the tank farm evangelists in one clump and the unbelievers in another. There were few, if any, neutral observers.

Discussion began with the easy issues: Does the city have satisfactory procedures for deciding whether and where to locate tanks holding hazardous materials? How should the public be informed about impending decisions on these matters? Should the concerns of nearby residents have a prominent role in the proceedings? Can noxious fumes be captured rather than released from tank farms? Must the operators of such facilities provide timely, accurate information to fire departments and other emergency services about dangerous substances on hand?

All agreed that any deficiencies in such issues could be fixed by adjustments to current practices.

Consensus By Garble

Then came the hard part. It was the same item that had flustered the citizens’ committee, which tried to achieve consensus about its recommendations — and largely succeeded — with one contentious exception.

Buffer zones: How broad a safety strip should separate tank farms from homes, schools, churches, hospitals, businesses? The wider the strip the less danger if something goes explosively wrong. But the wider the strip the less land remains for the tanks.

Most of the proposed new and expanding tank farms are squeezed between the waterfront and commercial or residential districts. Broad buffer zones would leave so little land for tanks along the shore that the planned facilities must shrink drastically, perhaps to the vanishing point.

This applies in the north Mobile neighborhood of Africatown, settled by the human cargo from the last slave ship to arrive in the U.S. The huge tank farm intended there would squat between the waterfront and a dense residential area.

Some on the citizens’ committee wanted a setback half a mile wide to protect Africatown. Others, more attuned to industry’s wishes, wanted a lot less.

This conflict strained the quest for consensus and garbled the passages about buffer zones in the committee’s final report. Now the same wrangle vexes the planning commission’s subcommittee and it too has found no easy solution, as the discussion at last week’s meeting revealed.

Consensus By Punting

Nobody on the subcommittee wanted to specify a number for the width of buffer zones. They said projects would differ by location and each should be considered on its own merits. Maybe, they suggested, a minimum width could be required with an option for wider setbacks where warranted by circumstances.

But they shied from saying what that minimum should be. Instead they instructed the staff to produce maps showing the sectors of the city zoned for heavy industry — where tank farms might locate — with surrounding buffers in 500 foot increments. These maps will illustrate where the desires of tank farm developers collide with people living and working within 500, 1,000 or 1,500 feet (and maybe more increments).

And the subcommittee speculated about stretching the buffers with words. Must the setback be measured from the boundary of a tank farm site to the boundary of a nearby residential zone? Or might it be measured from the porch of the nearest inhabited home to the position of the tanks within the site. Then the necessary buffer could be created by moving the tanks to the farthest part of the site and putting offices and other support facilities in the part closest to residences.

The maps will not say what the width of a buffer ought to be or where it should be measured from. The subcommittee will have to decide this and they are not ready to do so. They will meet again next month to study the maps. And they instructed their attorney to draft a prospective report to the full planning commission about any changes their deliberations may require in the city’s zoning or other regulations.

Consensus By Omission

This was a deft juggling of the hot potato. But the subcommittee didn’t dare to even touch the truly searing produce.

They recognized that approving tank farms implies approving the transport of substances to fill those tanks. In Mobile that means trains pulling long, hazardous chains of tanker cars brimming with crude oil. Subcommittee members remarked upon fiery accidents elsewhere by such trains (opponents call them bomb trains and the neighborhoods along their routes blast zones) and fretted about repeats here. But the subcommittee pleaded impotence. They said railroads are regulated by others, who have the responsibility to oversee safety.

Blast zone around proposed oil train unloading facility, downtown Mobile

But the trains wouldn’t be coming to town without tank farms to receive their cargoes. And the subcommittee, as a branch of the planning commission, does have a say in whether these tank farms exist. Yet the members were hesitant about linking tank farm decisions to dangers from trains.

They have the legal authority to attend to the health and safety of the people. But they acted like their main responsibility is fostering economic development. And they said repeatedly, in various phrasings, that expanding waterfront tank farms equals economic development.

To them, anybody prepared to invest any big wad of money in anything is welcome. They didn’t consider (not out loud, at least) the elementary idea that devoting the waterfront to tank farms prevents other uses of the shoreline that might be more desirable development.

While subcommittee members did note risks from tank farms, they said repeatedly that a balance must be found between economic development and public safety. This might be a valid approach if the benefits and hazards of tank farms were spread evenly across the city. But they are not. The hazards are highly concentrated in certain neighborhoods, and the benefits go mainly to investors elsewhere collecting profits. This is an inherent imbalance.

And if the benefits and hazards were distributed evenly across the community that still doesn’t assure a balance between development and safety. Weighing such a balance assumes that pluses and minuses can be calculated like a mathematical formula and a solution found. But what if circumstances make this impossible? Then the choice isn’t to have both development and safety — it’s one or the other.

Massively deadly chemical (Bhopal, India) and nuclear (Chernobyl, Ukraine; Fukushima, Japan) accidents left ruins surrounded by evacuated wastelands. Nothing comparable has happened yet with petroleum but a couple years ago in Canada an oil tanker train derailed and burned the center of a town (Lac-Megantic, Quebec) to cinders. Scores of residents died. The plans being made for oil storage and transport in Mobile contain the potential for similar or worse disasters. How could that balance development and safety?

The subcommittee made no attempt to balance economic development against the greatest environmental hazard. It was simply ignored. The city already has a throng of large petrochemical storage tanks and the planned expansions would add dozens. Most of these are near the waterfront just a few feet above sea level. The battering waves of a major hurricane could come ashore on a storm surge 20-30 feet deep. And they would bring chunks of debris serving as piercing projectiles.

Loose the contents from just a few of these tanks and the Exxon Valdez and BP’s offshore oil well become footnotes. The story history books will tell is the fate of Mobile’s river and bay.

Is such a catastrophe unlikely? Yes. Is it possible? Yes. Planners need to take this into account. The subcommittee didn’t address it in the slightest.

An Offer They Can’t Refuse?

Another awkward topic ignored was the temptation to evict. Although the subcommittee spoke openly about fashioning buffers by backing dangerous tanks away from the boundaries of industrial zones abutting residential ones, they did not mention the obvious prospect of doing the opposite.

This discussion pertained specifically to Africatown, where a giant tank farm wants to arise across the street from homes. Creating a broad buffer there by pushing the tanks back from the street and toward the water might leave so little land available for tanks that the project dies.

Mega tank farm plans across street from Africatown homes

But if the houses are removed then the buffer would be created on the other side of the street, and the tanks could fill the whole industrial tract as originally designed. While the residents might be defiant about clinging to their ancestral homes, what happens when they begin receiving pressure to leave plus attractive prices for selling out?

This would amount to eviction, achieved by financial means. Or legal means might be used. A state’s power of eminent domain has been expanding. Previously the government could compel the sale of private property only for plainly public uses, like highways and parks. Lately private developments like shopping centers and pipelines have been declared public enough for the land they need to be seized under eminent domain. Why couldn’t that reasoning apply to homes located where a tank farm needs a buffer zone?

My Brother’s Keeper?

The tanker trains arriving in Mobile come on the Canadian National railroad from the tar sands mining moonscape of Alberta province. But extensive tar sands strata underlie north Alabama. Prospectors are taking technical and regulatory steps toward extracting these deposits.

Activists in Mobile assume the motive behind much of the urge for expanding tank farms is to hold tar sands coming by train from upstate for transfer into ships. In that case, local officials who allow tank farm expansion are also allowing large swaths of the mining region to be gouged and polluted — because those tar sands won’t be mined unless the output can get to market by boat.

If the planning commission’s subcommittee cared about this they should have said so. They didn’t. Their decisions will influence whether north Alabama becomes a replica of wrecked Alberta. But they behaved like they care about nothing except the benefits or detriments inside the Mobile city limits.

In this loudly Christian area their attitude was: Hell, no! I’m not my brother’s keeper. Eff them. I’m looking out for me.

This myopia is especially astonishing in a port that will drown when the oceans rise. Continuing to dump annual megatons of greenhouse gasses into the air by burning fossil fuels will melt the polar ice and flood every seafront.

Even if all the tank farms anticipated here are built, Mobile’s contribution to this tonnage will be trivial. Every separate place’s will be trivial.

Just as during World War II in the U.S. everybody with a yard was expected to have a Victory Garden, and nobody’s individual Victory Garden won the war. Perhaps not even all the Victory Gardens together freed enough cropland to feed the soldiers. But these gardens displayed purpose and resolve. That’s what Mobile’s refusal to host more fossil fuel tanks would do.

Yet the subcommittee acted like they don’t care to be even their own port city’s keeper. In Florida, at least, officials have an excuse for such behavior. The governor has ordered them to delete from their vocabularies all such terms as global warming, climate change, melting icecaps, rising seas.

In Mobile officials do this voluntarily. Perhaps their silence springs from fear of political retribution if they acknowledge that those global trends result from fossil foolishness. But even if these officials stand among the dwindling corps who sincerely deny the obvious, they still ought to address it.

This has become a subject that no longer submits to silence. Too many people have become too anxious about it for deniers in authority to merely ignore it. They need to address it, if only to swat it aside. But the subcommittee said nothing.

When this issue reaches the full planning commission, they also will be tempted to maintain a politically safe silence. Then the city council.

To avoid singeing their fingers on the hot potato, they will let the planet continue to cook.

Imagine the reaction if they said instead that they will not permit the expansion of tank farms on the Mobile waterfront. And challenged all other port cities to do the same.

It would be a revolutionary act. Also sane and healthy.

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
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.”