[Note from BenIndy contributor Roger Straw: I was contacted by award-winning E&E Politico reporter Sean Reilly on August 12. Sean wanted to know about the two letters sent by then CA Attorney General Kamala Harris during Benicia’s long and controversial consideration of Valero Benicia Refinery’s “Crude by Rail” proposal. Sean’s excellent article appears below. Note that the Benicia Independent was deeply involved and some say instrumental in helping to defeat the refinery’s (and the rail industry’s) dangerous plan to run mile-long trains loaded with heavy and potentially explosive tar-sands crude oil over the mountains and into our small town. Local activists, commission members and electeds were at the heart of the opposition, but we couldn’t have stopped the CBR proposal without a LOT of help from environmental organizations, activists, staff and electeds from other cities near and far, and experts and attorneys in many fields — including the two letters from our then-Attorney General, Kamala Harris. For more, see our Crude By Rail PERMANANT ARCHIVE.  And please show your appreciation for E&E News / Politico by subscribing here.  – Roger Straw (Oh, and P.S. – go Kamala!!]

How Harris stood up against an oil giant as Calif.’s top lawyer

E&E News, by POLITICO, By Sean Reilly | 08/16/2024

Her stance on a pivotal crude-by-rail decision, considered a precedent-setting move, is seen as emblematic of her environmental priorities.

Kamala Harris skewered both a refinery’s plan to use trains to move potentially huge amounts of oil to a San Francisco Bay Area refinery and local oversight of the project when she served as California’s attorney general.

Although the episode did not draw the national spotlight accompanying Harris’ work on a landmark emissions cheating settlement with automaker Volkswagen and other higher-profile initiatives, some see it as an equally telling example of her environmental priorities as the state’s top lawyer.

Harris “didn’t have to get involved,” Craig Segall, a lawyer for the California Air Resources Board at the time who is now vice president of Evergreen Action, a climate policy group, said in a phone interview and ensuing text exchange.

That she did, Segall said, meshed with a focus on community health and getting ahead of emerging problems. The oil industry was also advancing “truly radical legal arguments,” he added, that would have made it hard for communities to address crude by rail in the future.

Under the plan unveiled by Valero Energy more than a decade ago, Union Pacific trains would have unloaded up to 70,000 barrels of crude each day at a refinery in Benicia, a waterfront city on the Bay Area’s northern shore.

After an impassioned 3 ½ year battle that played out largely at the local level, the project went down to defeat in 2016.

At the outset, however, that outcome was not preordained in a community where Valero wields considerable economic heft.

Shadowing the fracas was the 2013 crude-by-rail inferno that killed 47 people in Canada. In a scathing critique issued the next year, Harris’ office faulted the city’s draft environmental review for “severely” underestimating the risk of an accident.

Among other purported lapses, the review also relied on “improper standards of significance, unenforceable mitigation measures, and inadequate analyses” and failed to assess the possible air pollution impacts of changes to the refinery’s crude oil mix, a Harris deputy wrote in the 15-page broadside.

“I would say it was very important, if not crucial, largely because of the timing,” Benicia Mayor Steve Young said of the letter in a recent interview. Young, a member of Benicia’s planning commission at the time, evolved into a fierce critic of Valero’s plans. He later won election to the City Council before becoming mayor.

Up to that point, Young said, the controversy had been framed as a regional issue revolving around residents’ health and safety worries. “But when the AG’s office stepped in, it was seen as a disinterested third party that had an expert opinion.”

The city eventually issued a revised version of the environmental review that addressed many of the attorney general’s objections; the planning commission ultimately voted to reject Valero’s permit application.

Harris’ intervention, which was closely covered by local news outlets, is warmly remembered by other Bay Area critics of the project. “Her support for a safe and healthy world was incredibly important,” Benicia blogger Roger Straw wrote in a 2020 post urging a vote for Harris when she was seeking the vice presidency as a running mate to Joe Biden.

Harris served as California attorney general from 2011 to 2017 before joining the U.S. Senate and then becoming part of the Biden administration. She is now the Democratic nominee in this year’s presidential race against former President Donald Trump, a Republican.

The Union Pacific trains that were to have brought oil to the Benicia refinery would have rumbled through downtown Sacramento, the California state capital where the attorney general’s office and other state agencies are headquartered.

To what extent, if at all, that motivated Harris’ involvement is unclear. Her campaign did not reply to emails seeking her rationale for weighing in on the Valero project. The deputy who signed the letter now works for the California Environmental Protection Agency, which declined to allow an interview with him and instead referred questions to the attorney general’s office.

There, a spokesperson said the agency often issues feedback letters in the course of monitoring projects for compliance with the state’s Environmental Quality Act but otherwise had no comment on its role in the Benicia project.

A representative of Texas-based Valero did not respond to phone and email messages. Throughout a prolonged campaign to persuade Benicia city officials to issue the needed approvals, the company consistently maintained that the endeavor was safe, records show.

Its decades-old Benicia plant is one of several refineries in the Bay Area, with a workforce totaling more than 400 employees and the ability to turn 170,000 barrels of crude each day into products like gasoline, jet fuel and asphalt. It is the city’s largest private employer, Young said, and also accounts for a large chunk of the local tax base.

The company went public with its crude-by-rail plans in early 2013, portraying them as crucial to maintaining the refinery’s competitiveness by allowing it to substitute North American oil for foreign crude delivered by ship, according to an article at the time in the San Antonio Express-News.

The project was part of a surge in energy industry zeal for train transport, as oil production took off in areas like North Dakota’s Bakken Shale formation. In part because of its concentration of refineries, California stood to be disproportionately affected.

Public opposition

Just months later, however, came the disaster at Lac-Mégantic, Quebec, when a short-line train carrying Bakken crude derailed and exploded. For foes of the Benicia project, the tragedy was “critical” to mobilizing public opposition, Andrés Soto, an activist at the time, said in an interview.

Initially, however, the city’s response to Valero’s proposal was positive. While the project would at least temporarily lead to more air pollution and other environmental effects, they could all be “mitigated,” a May 2013 staff study found. The project had the backing of labor advocates and some residents, public hearing transcripts show.

But opponents successfully pressed for the broader review released in draft form in mid-2014. It offered a more detailed look at the potential effects but again found that fixes were possible.

While “significant and unavoidable impacts to air quality” loomed, for example, there were ways to address them, the draft found.

The local dispute was unfolding against a much bigger backdrop. From 2012 to 2013, the volume of rail-carried oil shipments into California had soared roughly 500 percent from 1 million barrels to 6.3 million barrels and was set to grow further, a state panel found in a report that argued for across-the-board action by government and business.

Railroads were pushing back. In a lawsuit, Union Pacific and other industry challengers sought to strike down a recently enacted California rail safety law, arguing that federal law preempted “this entire regime.”

The suit was eventually thrown out, but Harris’ office weighed in again after Valero appealed the planning commission’s decision to the Benicia City Council and took the preemption issue to the Surface Transportation Board, or STB, a federal agency that helps regulate freight rail transportation.

While the company contended that federal law barred Benicia from considering “rail-related impacts,” Harris’ office replied in April 2016 that the city nonetheless had permitting authority over Valero’s plans for building tank car unloading racks and other facilities, the letter said.

Valero “is not a ‘rail carrier’ constructing a project subject to SIB’s exclusive jurisdiction,” the response said. ”It is an oil company engaged in a project entirely removed from STB’s regulation.”

In an order issued five months later, the Surface Transportation Board reached a similar conclusion, writing that the record “does not demonstrate” that Valero is a rail carrier. Soon after, in a meeting preserved on video, the City Council voted 5-0 to deny the permit.

Then-Mayor Elizabeth Patterson called the decision a precedent-setting move for the state. The audience, seemingly packed with Valero critics, cheered.

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SEAN REILLY, E&E News by Politico