Take action: Protect California’s communities from explosive oil trains
Last month, decision-makers voted unanimously to reject a proposed crude-by-rail project at the Valero oil refinery in Benicia because it “would be detrimental to the public health, safety, or welfare” of Benicians and communities along the oil train routes. It was the right decision — projects like these, which put more than five million Californians within the blast zones of explosive oil trains, are not worth the risk.
But the oil company behind this project is appealing this decision to the Benicia City Council — so we need to speak out to protect communities like Benicia, Truckee, Davis, and Sacramento, that would be put at risk if this project moves forward.
On February 11, we won a tremendous victory against Valero’s Crude by Rail proposal when the Benicia Planning Commission unanimously rejected approval of the land use permit that would have allowed construction of a rail terminal on Valero property and the daily off-loading of two 50-car trains carrying domestic shale oil and/or Canadian tar sands. Valero took no time in appealing the decision.
Final approval of the project lies with the Benicia City Council. At their first hearing on this proposal on March 15, Valero surprised everyone with their request that the City Council delay consideration of their appeal of the Planning Commission’s decision. This would allow them time, they argued, to petition the federal Surface Transportation Board (STB) for the agency’s perspective on the scope of federal preemption law governing rail operations. They admitted the delay could take at least three months.
Valero is using the Benicia Crude by Rail project as a test case to drastically expand the range of federal preemption of rail regulation. They are claiming that all activity associated with property with rail spurs, such as the off-loading of crude on Valero property, is covered by federal preemption and thus completely exempt from local and state control. Federal preemption means that all California Environmental Quality Act (CEQA) requirements would be superseded. And effects on uprail communities could not be considered at all.
“Make no mistake,” writes Benicia activist Marilyn Bardet, “Valero hopes to bank on setting a precedent, right here in Benicia, that would affect municipalities of every size and stripe across California and the U.S. seeking to protect their communities from the risks of dangerous oil trains plowing through their urban cores and rural landscapes.”
Public hearings will continue on April 4, extending to April 6 and 19, if necessary. We are still not exactly sure what will happen in the April 4 hearing. But we need to show our strength again to make sure the City Council eventually votes with the Planning Commission and in the public interest.
Please come to the April 4th council hearing to voice your concern:
to support the authority and requirements of CEQA—for the public’s right to full disclosure of impacts, for enforceable mitigations and feasible project alternatives;
to support the Benicia Planning Commission’s consensus judgment resulting in a unanimous vote to deny certification of the Final EIR and deny the project permit;
to support Benicia’s authority to protect its health and safety and uphold the Benicia General Plan;
to deny Valero’s appeal and audacious corporate attempt to interfere in local politics for their own gain.
We must stand with Benicia in fighting this attack on local democracy.
Valero’s delay request – what will happen on April 4?
As of this writing, there is much confusion over Valero’s March 15 request at City Council to delay consideration of their appeal of the Planning Commission’s unanimous rejection of their Crude by Rail proposal.
Earlier today, several independent inquiries were sent to City staff asking what will happen next. City Attorney Heather McLaughlin responded to all in a single email, in which she attempted to give some direction to the public. Her answers left much still to be determined. We may learn more later, as she wrote, “Staff will be preparing a staff report for the April 4 [City Council] meeting. We hope to publish it by close of business on March 28.” [Staff reports and Council packets can be found on the City’s City Council page.]
McLaughlin listed questions and gave her answers in bold, below:
Could you please tell me if the City’s code describes the situation of a request for a delay of an appeal by an appellant contesting planning commission decisions made under a CEQA review of a project? If so, what are the rules governing such a request? If there are no rules that address such a request, what authority does the council have to either approve or ignore Valero’s request for delay in a hearing process? Section 1.44.040 (F) of the Benicia Municipal Code allows the City and the appellant to agree to extend the time for hearing an appeal. The City’s agreement would have to be made at a public meeting if the appeal, like here, is to a person or body that holds regular meetings. Regular meeting rules would apply like public comment before taking action.
Would Valero’s request for delay constitute an action under the purview of CEQA, since the CBR Project is still under CEQA review via Valero’s appeal at this point? No CEQA review would be required for delaying the project.
If the City Council agrees to Valero’s requested delay, would this mean that the public hearings and all submissions/comments under CEQA would be continued into the indefinite future until such time as Valero receives whatever word on preemption from the Surface Transportation Board? This decision would be up to the Council. Staff does not have a recommendation at this time.
Would information from the STB on preemption be considered “new information”, and if so, would that response from STB have to be incorporated in a revised FEIR under CEQA? Depending on what an STB decision might say, the City may or may not decide to revise the FEIR. The City Council will make this decision after considering any STB decision.
If the Council continues the hearings and takes public testimony on previously scheduled days (April 4th, 6th, 19th), would future hearings be held after Valero receives info from the STB? In other words, how would the public be informed of new information rec’d, (if any)? The City Council will have to take any future action on the project at one or more noticed meetings. There will be opportunity for public comment until the public hearing is closed.
Will the City Council hold two public hearings on the project to receive public comments – one regarding Valero’s request for a continuance and another on the project? The City Council will determine the process. Staff does not have a recommendation at this point.
Will the City Council first consider Valero’s request to delay the appeal before the public hearing on the appeal begins? Please see the answer to 6RK above.
Will the public have the opportunity to comment on Valero’s request for delay of the appeal? Yes. Public comment will be allowed before the Council decides.
If the request to delay the appeal is granted, will the scheduled public hearing on the appeal be cancelled? Please see response 3MB above.
If the request to delay the appeal is denied, will the public hearing then proceed as scheduled? Yes.
My summary: Every time the City Attorney says Council will decide and staff has no recommendation at this time, it means staff will probably confer (with Council members?) and make a more or less decisive staff recommendation, which the public will not know until March 28. This applies to questions 3, 4, 5, 6, 7, and 9. So – my opinion – there’s not much information here.
What we DO learn, without much surprise, is that:
Question 1: The City attorney upholds Valero’s right under city code to request a delay. See item F: “The time limits in this section may be extended if the applicant(s) and appellant(s) agree.”
Question 2: The City attorney holds that “no CEQA review would be required for delaying the project.” It might be good to get a CEQA expert’s opinion.
Question 8: Public comment will be allowed on the delay.
Question 10: If the delay is denied, hearings on the appeal will proceed as planned.
SO … It seems clear that significant important decisions will be made at the City Council hearing on April 4. Plan to attend – our Council members need to know how we feel about health and safety here in Benicia. You can RSVP on Eventbrite or on Facebook.
Valero delay tactic – unnecessary interference in local politics
Marilyn Bardet
Last night, March 15th, the first hearing of the Benicia City Council was held on Valero’s appeal of the unanimous vote of the planning commission to deny certification of the final EIR and the proposed Crude By Rail Project, a permit for which would allow construction of a rail terminal on Valero property that would serve to off-load two 50-car trains each day loaded with domestic shale oil and/or Canadian tar sands.
After the staff gave its usual synopsis of Valero’s proposal, the planning commission’s chair, Don Dean, gave an excellent overview of the commission’s work over three years of public review, summarizing the arduous process, first begun in 2013, when the public and commissioners questioned City staff’s recommendation to adopt a grossly flawed Initial Study /Mitigated Negative Declaration. The commission’s inquiry continued following the drafting of a full EIR in 2014, that was then followed by review of a Revised EIR in 2015 — all of which entailed long hours of public hearings and study of volumes of written comment letters from Benicia residents and comments and testimony provided by public agencies, environmental organizations and government representatives. (See benindy.wpengine.com/project-review/ for links to the public record.)
After Don Dean’s presentation, it was Valero’s turn to present their appeal. In all previous testimony, and in their official letter of appeal, which had been submitted to the City in the wake of the final planning commission hearing in February, Valero has asserted that under federal preemption, requirements of the California Environmental Quality Act (CEQA) would be superseded, hence that any impact evaluations or determinations regarding mitigations directly or indirectly involving rail would be considered irrelevant and unenforceable. In their appeal letter, Valero went so far as to describe the commission’s decisions for denial as representing an “abuse of discretionary powers”, insisting that commissioners had virtually ignored the full authority of federal preemption.
Thus, it was to be expected that Valero’s Don Cuffel would repeat “the Valero basics” about why the Project would be safe and economically beneficial, while pointing to what Valero considers the various errors of “the opposition”, including those representing opposing legal views presented in the course of public hearings.
But the twist came when attorney John Flynn took the podium and surprised the council, city staff and the public by announcing that Valero was now recommending “a delay” in the appeal process they’d initiated, to allow time for them to petition the federal Surface Transportation Board (STB) for the agency’s perspective on the scope of federal preemption law governing rail operations. They admitted the delay could take at least three months.
Under the dubious premise that delaying their appeal would benefit everybody, Valero argued that getting an opinion from the STB would “help” the City make the correct decision with regard to the limits of their jurisdictional authority imposed by preemption.
But what kind of ‘benefit’ would delaying the appeal process really represent, given that Valero claims that preemption essentially neuters our city council’s authority and obligation under CEQA to protect the health and safety of residents, and thus to uphold most important goals and policies of the Benicia General Plan?
Council members Mark Hughes, Christina Strawbridge, Alan Schwartzman and Tom Campbell, and Mayor Patterson, each questioned why Valero had not petitioned the STB previously, when either the Draft EIR or Revised EIR were being developed. Valero didn’t seem to have an answer.
But “politics” are in the air, and Valero Energy Corp, headquartered in San Antonio TX, is now gambling politically, apparently seeking to produce what could be considered a “pre-trial” test of their own legal opinion on preemption right at the time of our local elections. Interference in local politics in order to push permitting of their dangerous Crude By Rail Project is not acceptable and must be challenged!
Make no mistake: Valero hopes to bank on setting a precedent, right here in Benicia, that would affect municipalities of every size and stripe across California and the US seeking to protect their communities from the risks of dangerous oil trains plowing through their urban cores and rural landscapes.
Valero’s “recommendation for delay” is a bald political tactic:
• Delay is NOT necessary for the City Council to reach an informed decision on the Crude-By-Rail Project;
• Delay does NOT serve City staff or the public;
• Delay ONLY serves the financial and broad political interests of Valero Energy Corporation.
Please come to the April 4th council hearing to voice your concern:
• To support the authority and requirements of CEQA — for the public’s right to full disclosure of impacts, for enforceable mitigations and feasible project alternatives;
• To support our planning commission’s consensus judgment resulting in a unanimous vote to deny certification of the Final EIR and deny the project permit;
• To support the authority of our City to protect our community’s health and safety and uphold the Benicia General Plan;
• To deny Valero’s appeal and audacious corporate attempt to interfere in local politics for their own gain.
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