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.
Valero’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.
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.
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.”
California Attorney General Kamala Harris challenges Benicia oil plan
By Tony Bizjak, April 14, 2016 4:29 PM
HIGHLIGHTS:
• Harris said Benicia has the right to say no, is not pre-empted by federal law
• Two 50-car oil trains would travel daily through downtown Sacramento
• Valero spokesman: ‘We remain confident our views related to the application of federal pre-emption in this matter’
This train is a crude oil train operated by BNSF. The train is snaking its way west through James, California just outside of the Feather River Canyon in the foothills into the Sacramento Valley. Photo taken June 5, 2014 by Jake Miille
California Attorney General Kamala Harris weighed in on Benicia’s ongoing oil train debate on Thursday, arguing that the city has a legal right to reject a local refinery’s oil train plan and the obligation to review environmental risks.
The debate involves a plan by Valero Refining Co. to ship up to two 50-car trains a day of crude oil through Northern California, including through Roseville, downtown Sacramento and Davis, to its plant on Suisun Bay on the outskirts of Benicia. Valero is seeking city permits to make changes at its refinery to allow it to receive train shipments.
California Attorney General Kamala Harris addresses the California Chamber Capitol Summit in Sacramento, Calif., Wednesday, May 27, 2015. (AP Photo/Rich Pedroncelli)
In a five-page letter Thursday, Harris repeatedly challenged Valero’s assertion – and the opinion of an attorney on hire to Benicia – that the city cannot consider any potential negative impacts of oil trains to cities along the rail line.
“We disagree that the city is prohibited from considering the project’s 11 significant and unavoidable rail-related impacts when exercising its local land use authority,” said Harris, the state’s top law enforcement official, said.
An earlier environmental impact report conducted by Benicia concluded that the trains presented significant and unavoidable risks of oil spill, environmental damage and potential loss of human life if one were to derail while en route to the refinery. Several spills and explosions in recent years, including one in which 47 people were killed, have highlighted the dangers of crude oil trains nationally.
Bradley Hogin, an environmental attorney hired by Benicia, has argued that federal interstate commerce law pre-empts the city from turning Valero’s proposal down because that decision would at least indirectly be telling the Union Pacific railroad company what it can and can’t do.
The Benicia Planning Commission earlier this year rejected Hogin’s opinion and denied Valero’s permit request. Planning commissioners said they did not want to put cities on the rail line at risk, but they also made a point of saying they also were rejecting Valero’s proposal because of local issues, such as flood and traffic concerns.
Valero appealed that decision to the Benicia City Council, which is conducting hearings, including two scheduled for next week.
Numerous attorneys representing environmental and social justice groups have argued that Hogin’s reading of the law is wrong. Sacramento-area officials have sent several letters to Benicia calling on that city to protect communities along the rail line, and a number of Sacramento and Davis residents have testified in Benicia against the plan.
The state attorney general is the highest law enforcement official to weigh in on the matter. Harris, a Democrat, is running for U.S. Senate this year.
Harris argues, in her letter, that federal pre-emption law on rail shipments does not apply because Valero is not a railroad company and is only asking Benicia for permission to make improvements at its local refinery site.
“Both Valero and city staff incorrectly argue that the city’s denial of Valero’s use permit will somehow impermissibly interfere with Union Pacific’s rail operations,” the attorney general said in her letter, written by Deputy Attorney General Scott Lichtig. “The city’s denial of Valero’s use permit is not categorically pre-empted” by federal law because it doesn’t interfere with UP’s federal rights.
In sum, the attorney general’s office said that under federal law Benicia “retains its authority to take discretionary action to approve or deny Valero’s project.”
Valero spokesman Chris Howe responded Thursday in an email to The Sacramento Bee, saying, “We remain confident in our views related to the application of federal pre-emption in this matter.”
In an email to The Bee Thursday evening, Hogin responded.
“City staff disagrees with the Attorney General’s letter,” he wrote. “Based on current law, cities do not have the authority to make permitting decisions based on impacts from rail operations. Cities may only consider local impacts that could result from a shipper’s unloading facility. The status of the permittee as rail carrier or shipper is not the deciding factor; what matters is the nature of the regulation – whether it addresses impacts from a shipper’s unloading facility, or impacts from rail operations.”
Yolo County Supervisor Don Saylor, who has acted as spokesman for the local six-county Sacramento Area Council of Governments, said the Attorney General’s analysis is consistent with SACOG’s own legal analysis. “At this point it seems clear that the significant environmental impacts and public safety risks of this expanded crude oil terminal outweigh the project benefits,” he said.
Ethan Buckner of Stand California, one of several organizations that oppose crude oil shipments, issued a statement lauding Harris.
“Attorney General Harris stood up for democracy and public safety today,” Buckner said. “Valero was hoping to cloud the issue with complicated federal law. … The City Council must now uphold the Planning Commission’s unanimous decision to reject the Valero oil train project.
“And all other cities in California and around the U.S. now know for certain that federal law does not preempt or constrain the city’s discretionary decision-making authority.”
Valero’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.
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