Repost from SFGate

BREAKING NEWS: Judge says suit to stop Richmond oil shipments filed too late

By Bob Egelko, September 5, 2014

A judge on Friday dismissed a lawsuit by environmental groups over shipments of volatile crude oil to the Richmond rail terminal, saying they had waited too long to challenge regulators’ approval of the project – approval they discovered only after the deadline for going to court.

Trains from the Midwest have been carrying the oil to the terminal of the Kinder Morgan energy company since early February. The environmental law firm Earthjustice learned of the shipments from news reports in mid-March and sued later that month, saying air-quality regulators should have conducted an environmental study of the potential for toxic emissions as well as the explosions that have occurred elsewhere.

But the Bay Area Air Quality Management District had decided in July 2013 to let Kinder Morgan receive crude oil instead of ethanol, which had been delivered to the terminal since 2009.

Acting under its legal authority, the district made no public announcement of the new permit, but – according to Friday’s ruling – its action started the clock ticking on a 180-day deadline for a lawsuit.

That deadline expired two months before the suit was filed, said San Francisco Superior Court Judge Peter Busch.

“I understand the deep concern,” Busch said in a courtroom filled with opponents of the shipments, some of whom wore “Stop Crude by Rail” stickers on their shirts. But he said courts must follow “the Legislature’s determination of the appropriate time period to impose finality.”

Lawmakers’ decision

In setting that firm timetable, he said, “the Legislature contemplated circumstances where the public wouldn’t know” a project had been approved.

Communities for a Better Environment, the Asian Pacific Environmental Network, the Sierra Club and the Natural Resources Defense Council filed the suit.

Their lawyer, Suma Peesapati of Earthjustice, argued that the 180-day timeline should have started much later, either when the public learned of the oil shipments or when Kinder Morgan halted them for two weeks to bring in oil trucks with stronger protections against vapor release.

According to documents now available, Peesapati told the judge, the district and the energy company had studied the project for a year and initially agreed that it was likely to harm air quality, a conclusion that would have required a full environmental study and public input. Then, she said, the district reversed course and “cooked the books” to cover its tracks.

“There was a bait and switch,” Peesapati said. “The public had no way of knowing.”

5 months of tests

Lawyers for the district and Kinder Morgan said they had acted safely and legally. John Lynn Smith, the company’s lawyer, said it conducted five months of tests before beginning the shipments, and used trucks that kept vapor releases to their levels during the ethanol deliveries.

Busch said neither the commencement of the oil shipments nor the truck substitution made significant changes in the project the air district had already approved.

Peesapati said the environmental groups would consider an appeal. The district’s approval process “was biased in favor of Kinder Morgan at every turn,” she said.