Category Archives: Benicia City Council

Bakken Crude, Benicia City Council, Benicia city staff, Benicia Planning Commission, California Attorney General Kamala Harris, Climate Change, Crude By Rail, Federal pre-emption, Fossil fuels, Global warming, Valero Benicia Refinery, Valero Crude By Rail

SAN FRANCISCO CHRONICLE EDITORIAL: Benicia – stop the oil trains

Repost from the San Francisco Chronicle

Stopping oil trains is right thing for Benicia and planet

San Francisco Chronicle EDITORIAL, April 15, 2016

California’s efforts to lead on global climate change will come down to a local decision next week. Will the Benicia City Council allow 100-car oil tanker trains a day to roll into the Valero Refinery? The council should vote no to keep the state — and the world — on track toward reducing climate-warming fossil fuels.

Like the battle in Oakland to keep a port developer from shipping trainloads of Utah coal to China, the Benicia battle is emotional, divisive and very, very local. Since discussions between the city and refinery began in 2013, townspeople have packed the City Council chambers for each crucial vote in the permitting process.

Stop Crude By Rail yardsignValero’s refinery, its stacks and cooling towers visible for miles, spreads across the northern edge of Benicia, a riverside town of 28,000 in Solano County. Valero is the source of jobs and a significant portion of the city’s tax base. Yet, drive through the streets and you will see “Stop Crude by Rail” signs everywhere.

This local decision counts because Benicia is a link in the global oil market. Oil trains would transport crude from the Bakken oil shale in North Dakota, as there are no pipelines from that region to deliver petroleum to refineries. Currently, Valero brings in most of the crude it refines via oceangoing tanker, which will continue regardless of the vote on the permit to retrofit the refinery for rail delivery.

Because of the small city’s important role in addressing global climate change, California Attorney General Kamala Harris has interceded twice in the permitting process. In 2014, at the urging of mayors of California cities along the rail lines, she required the city to redraft the environmental impact report to address rail safety and environmental impacts.

Last week, in a letter to the city, she disagreed with Valero’s view (also held by city consultants and staff) that Benicia was legally prohibited from denying the permit because federal rail transport law preempts local authority. Not so, the AG said: Federal law applies to railroads, not refineries. “Under federal law, the City retains its authority to take discretionary action to approve or deny Valero’s Project.”

The City Council must use its legal authority to do the right thing for Benicia — and the planet. Deny the permit.

Benicia City Attorney Heather McLaughlin, Benicia City Council, Benicia city staff, Crude By Rail, Federal pre-emption, Local Regulation, Public permitting, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

EAST BAY EXPRESS: Attorney General Harris: Benicia Has Power to Reject Oil Facility

Repost from the East Bay Express

Attorney General Harris: Benicia Has Power to Reject Oil Facility

By Jean Tepperman, April 15, 2016
Kamala Harris
California Attorney General Kamala Harris

In a strongly-worded letter sent Thursday to City of Benicia officials, California Deputy Attorney General Scott J. Lichtig wrote that Valero, the City of Benicia’s planning staff, and an outside attorney advising the city have all incorrectly interpreted the law, and that Benicia has the duty to regulate land use, and must weigh in on a proposal to expand a controversial Valero oil facility.

As the Express reported earlier this week, Valero’s original proposal was presented in 2013 as a simple plan to build a couple of rail spurs from the main railroad line to its refinery, and the city announced its intention to approve the plan without doing an environmental impact review. A torrent of opposition greeted this announcement, however. As a result, the city was forced to conduct three environmental impact reviews and hold public hearings. Then, last February, Benicia’s planning commission unanimously reversed approval for the project. Now the oil facility is pending a final decision by the city council.

But Valero and Bradley Hogin, a contract attorney advising the city, have claimed that the federal government’s authority over railroads means that local governments are not allowed to make regulations that affect rail traffic — even indirectly. And when they’re deciding on a local project, cities are not allowed to consider the impact of anything that happens on a rail line. The legal doctrine Hogin is referring to is called federal preemption. Assuming the city is preempted from blocking it’s oil-by-rail project, Valero has asked the Benicia City Council to delay consideration of the project while it seeks an opinion from the Surface Transportation Board, the federal agency that regulates railroads.

The Attorney General’s letter sent yesterday included a simple response to this interpretation of the law: “we disagree.”

The letter from Harris’s office not only disagreed with Valero and Hogin’s legal opinions, but also stated that to the contrary, the California Environmental Quality Act (CEQA) actually requires the city to consider indirect impacts of the project.

“A failure to include all of a project’s potential environmental impacts . . . or to disregard that information in making a decision like the one regarding Valero’s [project], not only would defeat the purpose of CEQA, but would be an abuse of discretion,” Lichtig wrote.

Harris’ letter explained at some length that federal authority over railroads applies only to railroads. The Surface Transportation Board, the federal agency that regulates railroads, “preempts state or local regulation only if the activity at issue is performed by a rail carrier,” the letter said.

Because Valero is proposing to build the project on its own land — rail spurs and related equipment to connect its refinery to the main railroad line — the Surface Transportation Board has no jurisdiction, Harris concluded.

The attorney general’s letter “clearly shows that Valero’s request for a delay was a distraction, designed to delay the inevitable vote to deny this project,” commented Andres Soto of Benicians for a Safe and Healthly Community.

The city council is planning to reconsider the Valero project on April 18 and 19. Opponents expect the letter to strengthen their case that the council should immediately vote to deny project approval, rather than wait on the federal Surface Transportation Board to weigh in, as Valero has requested.

“This letter has immense implications for similar oil-train fights in San Luis Obispo and around the country, where the issue of federal preemption has been at the forefront of local permitting battles,” wrote Ethan Buckner of STAND.earth, another organization that is opposing the Valero crude-by-rail project.

Benicia City Council, Benicia city staff, California Attorney General Kamala Harris, Crude By Rail, Environmental Impacts, Interstate Commerce Commission Termination ACT (ICCTA), Surface Transportation Board, Valero Benicia Refinery, Valero Crude By Rail

VALLEJO TIMES-HERALD: Attorney general letter disagrees with Valero, Benicia city staff

Repost from the Vallejo Times-Herald
(Also appearing in the East Bay Times, the San Jose Mercury News, the Santa Cruz Sentinel and the Monterey Herald)

Attorney general letter disagrees with Valero, Benicia city staff

By Irma Widjojo, 04/15/16, 5:43 PM PDT

Benicia >> The Office of Attorney General Kamala Harris has sent a strongly worded letter to the City of Benicia regarding Valero Benicia Refinery’s proposed crude by rail project.

In the letter, dated Thursday, Harris’ office disagrees with the city staff and Valero’s conclusion that Interstate Commerce Commission Termination ACT, or ICCTA, prohibits the city from taking rail-related impacts into account while deciding on the project.

The issue of preemption has been the crux of the discussion regarding the project. In March, the Planning Commission has denied the use permit application and declined to certify the project’s Environmental Impact Report, or EIR.

In its appeal, Valero states that it agrees with the city staff’s conclusion that the city is legally prohibited from making that decision based on the 11 “unavoidable and significant” rail-related impacts, which were included in the report.

In the letter written by Deputy Attorney General Scott Lichtig, the office said the conclusion is incorrect.

“… ICCTA does not preempt or constrain the city’s discretionary decision-making authority where, as here, the city is exercising that authority with respect to a project taken by an oil company that is not subject to the jurisdiction of the Surface Transportation Board,” the letter states.

In 2014, the office also sent a letter to the city urging it to correct “deficiencies” in the draft EIR.

“In fact, for Benicia to turn a blind eye to the most serious of the project’s environmental impacts, merely because they flow from federally regulated rail operations, would be contrary to both state and federal law,” according to the most recent letter.

On Monday, or if necessary Tuesday, the city council is set to meet to make a decision on Valero’s appeal and its request to postpone the decision making until the company receives a possible declarative order from the State Transportation Board regarding the issue of preemption in the project.

Many public members have spoken in support or opposition to the project in the beginning of the month, and the public comment session will continue on Monday.

When everyone is heard, Valero will have five minutes to make its case, followed by questions from the council before it makes its decision.

Valero is seeking the permit to build infrastructure on site to allow the company bring in two 50-car trains a day carrying up to 70,000 barrels of North American crude oil. The company’s oil is now being transported into the city by marine vessels and pipeline.

Each meeting is set for 7 p.m. at City Hall, 250 E. L St.

Benicia City Council, Benicia Planning Commission, California Attorney General Kamala Harris, Crude By Rail, Federal Regulation (U.S.), Local Regulation, Public permitting, Valero Benicia Appeal, Valero Benicia Refinery, Valero Crude By Rail

CALIFORNIA ATTORNEY GENERAL: “For Benicia to turn a blind eye…”

By Roger Straw, April 14, 2016, 5:28 PM PDT

California Attorney General Kamala Harris: letter disagrees with City of Benicia staff, consultants and Valero

Today the City of Benicia received a letter from California Attorney General Kamala Harris disagreeing with City staff, consultants and Valero Refinery.

The letter asserts that Benicia’s Planning Commission and City Council have every right to deny a land use permit for Valero’s proposed Crude by Rail offloading rack.

Significant excerpts:

“For Benicia to turn a blind eye to the most serious of the Project’s environmental impacts, merely because they flow from federally-regulated rail operations, would be contrary to both state and federal law.”

“City Staff has asserted that Benicia is “legally prohibited” from denying the Project based on the rail-related impacts disclosed in the Revised Draft EIR. Valero agrees with City Staff, asserting, ‘the City Council’s hands are, in effect, tied by the law of federal preemption.’

“We disagree that the City is prohibited from considering the Project’s eleven significant and unavoidable rail-related environmental impacts when exercising its local land use authority.

“Where, as here, an oil company proposes a project that is not subject to STB regulation and over which a public agency retains discretionary permitting authority, it would be a prejudicial abuse of discretion for that agency not to consider all of the project’s foreseeable impacts in exercising its authority.

“A failure to include all of a project’s potential environmental impacts in the CEQA analysis, or to disregard that information in making a decision like the one regarding Valera’s Use Permit, not only would defeat the purpose of CEQA, but would be an abuse of discretion.”

“Under federal law, the City retains its authority to take discretionary action to approve or deny Valero’s Project. In exercising that authority, state law requires the City to analyze and disclose the Project’s direct and indirect environmental impacts, and thus to be fully informed of the consequences of its action. The. City has done that here, and its action has not interfered with federally regulated activities. Valero’ s assertion that the Planning Commission’s action was illegal is without merit.”

To download the full 5 page letter, click here.