Category Archives: California Environmental Quality Act (CEQA)

BERKELEY MAYOR TOM BATES: Letter opposing Valero Crude By Rail

By Roger Straw, April 18, 2016

BERKELEY MAYOR TOM BATES: Letter opposing Valero Crude By Rail

The Benicia Independent is in receipt of a letter sent today to the City of Benicia by Berkeley, CA Mayor Tom Bates.  Mayor Bates writes in opposition to certification and permitting of Valero’s proposal.

Here is the complete text of Mayor Bates’ one-page letter:

Berkeley_logo
Office of the Mayor

April 18, 2016

Mayor Elizabeth Patterson City Council Members Tom Campbell, Mark Hughes, Alan Schwartzman, Christina Strawbridge Principal Planner Amy Million City of Benicia Benicia, California

Dear Mayor Patterson; Council Members Campbell, Hughes, Schwartzman, Strawbridge; and Ms. Million:

I ask you to uphold the Benicia Planning Commission’s decision to withhold certification from the Valero Refining Company’s Crude-by-Rail project. I believe the risks of this dangerous rail spur far outweigh possible benefits.

I agree with Attorney General Kamala Harris and environmental and community groups and that the Interstate Commerce Commission Termination Act does not prevent the City from assessing the transportation and public-safety risks when considering the project under its land-use authority.[1] The issue is one of local land use not pre-empted by federal regulation.

Another chief reason for not approving the project is that the CEQA analysis did not assess all of the project’s potential environmental impacts, including its impacts on other cities.[3] Allowing up to two 50-car trains of crude oil a day to come into the Valero refinery exposes Benicia and other communities to major safety risks, especially given the history of train derailment in recent times, both nationally and internationally.[2] An oil spill could be catastrophic to the local environment and waterways. Moreover, the transport of crude oil will emit toxic pollutants not adequately assessed in the environmental review, thus contaminating the air breathed by your residents and those of other communities as well.

The Berkeley City Council has reviewed the issue of transporting crude oil on the freight lines in the East Bay and has gone on record in unanimous opposition to such transport because of the unacceptable level of hazardous risk, including to Berkeley. The Union Pacific tracks are embedded in our West Berkeley community where people live, work and go to school.

I ask that you not approve this rail spur until the volatile organics are removed from these crude oil shipments and the railroads are upgraded to modern standards to handle such shipments.

Sincerely,
Tom Bates, Mayor


[1] https://beniciaindependent.com/wp-content/uploads/2016/04/AttyGenl_Kamala_Harris_Comments_Received_April_13-14_2016.pdf
[3] https://beniciaindependent.com/topics/final-draft-environmental-impact-report-feir/
[2] http://ww2.kqed.org/science/2014/07/11/benicia-extends-public-comment-period-on-bay-area-crude-by-rail/

LETTER OF OPPOSITION: Attorney Rachael Koss, for SAFER California

By Roger Straw, March 31, 2016

On March 30, attorney Rachael E. Koss of Adams Broadwell Joseph & Cardozo,  representing Safe Fuel and Energy Resources California (SAFER), sent the Benicia City Council this letter of opposition to Valero’s oil trains project.

SIGNIFICANT EXCERPT:

First, Valero’s argument that the City should not consider Project impacts from crude slate changes because emissions would not exceed its permit limits has already been rejected by the California Supreme Court. The California Environmental Quality Act (“CEQA”)l requires the City to determine whether a project would change the existing environment by increasing emissions as compared to actual existing emissions — not whether the Project will change the environment by exceeding hypothetical emissions allowed under permit limits. This was precisely the issue before the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District.2 The Court rejected the argument that “the analytical baseline for a project employing existing equipment should be the maximum permitted operating capacity of the equipment, even if the equipment is operating below those levels at the time the environmental analysis is begun.”3 The Court held that CEQA requires the baseline to reflect “established levels of a particular use,” not the “merely hypothetical conditions allowable under the permits…”4 Following the Supreme Court decision, the court in Communities for a Better Environlnent v. City of Richmond5 similarly rejected the city’s use of a hypothetical baseline, which failed to reflect actual operational conditions. “The [Supreme Court] stated that using hypothetical, allowable conditions as a baseline ‘will not inform decision makers and the public of the project’s significant environmental impacts, as CEQA mandates.”’6 Thus, Valero’s argument has already been rejected by the California Supreme Court.

Benicia Blocks Oil-By-Rail Plan

Repost from the East Bay Express
[Editor:  I am posting this excellent review by Jean Tepperman belatedly, with thanks for East Bay Express’ regional coverage of a Benicia story with huge regional and national implications.  I’ve not read a better review of the Feb. 8-11 Benicia Planning Commission hearings.  – RS]

Benicia Blocks Oil-By-Rail Plan

By Jean Tepperman, February 12, 2016
Valero Refinery in Benicia. - WIKIMEDIA COMMONS
Valero Refinery in Benicia. – WIKIMEDIA COMMONS

The little town of Benicia is looking to become the next link in the chain barring crude oil from traveling by rail to the West Coast. After four evenings of contentious hearings, the Benicia Planning Commission on Thursday unanimously rejected Valero refinery’s proposal to build a rail spur that would allow it to import up to 70,000 barrels a day of “North American crude oil” — meaning extra-polluting crude from Canada’s tar sands and the highly explosive crude from North Dakota’s Bakken shale fields. Both fossil fuels have been involved in numerous derailments, explosions, and fires, including a 2013 fire and explosion in Lac Megantic, Quebec that killed 47 people.

Starting on Monday, planning commissioners, led by Commissioner Steve Young, grilled staff members about their decision to recommend approval of the Valero project, identifying inconsistencies and pointing to problems that the project would create, from blocking traffic to increasing pollution to potential oil spills and other emergencies that the city would not be able to cope with. The central issue that emerged, however, was whether the city had the authority to make decisions about the project.

The staff report actually said the benefits of the project did not outweigh the potential harm. Shipping crude oil by rail, the staff found, would have “significant and unavoidable” impacts on air quality, biological resources, and greenhouse gas emissions. These impacts would conflict with air quality planning goals and state goals for reducing greenhouse gas emissions. But the city can’t prevent any of this, the staff report said, because only the federal government has the authority to regulate railroads.

Bradley Hogin, a lawyer whom the city hired on contract to advise on this project, said federal law prevents local governments from interfering with railroads, a principle referred to as “preemption.” According to the interpretation of “preemption” described by Hogin and city staff, local governments are not permitted to take actions that “have the effect of governing or managing rail transport,” even indirectly. And they are not allowed to make decisions about a project based on impacts of rail shipping connected with that project.

“Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said environmental activist Marilyn Bardet in an interview. “They were going to create a legal precedent on preemption here.”

Bardet reported that public testimony by representatives of environmental organizations and “two young women from the Stanford-Mills Law Project made it clear that “there are many people who would disagree with Hogin’s interpretation.”

Roger Lin, lawyer with Communities for a Better Environment, said in an email that, contrary to Hogin’s claims, the California Environmental Quality Act actually requires local governments to consider “indirect or secondary effects that are reasonably foreseeable and caused by a project, but occur at a different time or place.” Valero is not a railroad, he said, so the “preemption” doctrine does not bar the city from using its land-use power to reject the project.

However “preemption” is interpreted, Bardet said, “the commissioners seemed uncomfortable with being told they would have to approve the project based on considerations they couldn’t accept.” Late in the hearing process, commission chair Donald Dean said, “I understand the preemption issue on a theoretical legal level, but I can’t understand this on a human level.”

Bardet expressed appreciation for the commissioners’ concern. “My sense was that these guys are real human beings,” she said. “They all listened carefully. None of them was asleep.”

Project opponents packed the hearing room for four straight nights, filling two overflow rooms on the first night. People came from “uprail” communities, including Davis and Sacramento, as well as allies from across the Bay Area, Bardet said.

Opposition to the project has been led by a community group, Benicians for a Safe and Healthy Community, formed in 2013 when the city seemed ready to approve the project without requiring any environmental impact study. “We joined with other refinery communities in the Bay Area Refinery Corridor Coalition” and in a coalition working to persuade the Bay Area Air Quality Management District to pass tough new regulations on refinery pollution, Bardet said. She said support from the National Resources Defense Council and Communities for a Better Environment was also important. “The grassroots came alive together,” she said.

Many of these organizations, like the Benicia group, are concerned, not only about the hazards of shipping crude by rail, but by the impact of refining the extra-polluting crude oil from Canada’s tar sands, Bardet said. She noted that the city’s environmental review of the project made no mention of this issue, although it is well established that refining dirty crude oil, like oil from tar sands, emits more health-harming pollution as well as more greenhouse gases.

Valero is expected to appeal the planning commission decision to the city council, which could meet to decide on the issue as early as mid-March. “The city council is going to be hard-pressed to reject the views of their own planning commission,” Bardet said.

She emphasized the significance of this decision for the national and international issue of shipping crude oil by rail. “The whole world is watching,” she said. “I just got a message from a guy in New Jersey congratulating us.”

Sacramento Area Council of Governments (SACOG) highly critical of Valero oil train EIR

By Roger Straw, February 5, 2016

BREAKING: Sacramento Area Council of Governments (SACOG) highly critical of Valero oil train EIR

SACOGThe Benicia Independent is in receipt of a Sacramento Area Council of Government letter sent on February 4, 2016 to the City of Benicia, but not as yet posted on the City’s website. The letter is severely critical of the City’s Final EIR, and calls for the Benicia Planning Commission to “provide full and adequate responses to our comment letters,” and “to fully evaluate all measures to mitigate the significant environmental impacts that this Project will inevitably have on our communities and our residents.”

The letter is signed by SACOG Immediate Past Chair Don Saylor.  SACOG represents 22 cities and 6 counties in the Sacramento area.

The letter begins by summarizing  two previous letters sent to Benicia, one in 2014 commenting on the original Draft EIR, and another in 2015 commenting on the Revised DEIR.  The 2015 letter claimed that the City did not adequately respond to their first letter.  “…we submitted a second comment letter citing the mandate in the California Environmental Quality Act (CEQA) to describe all mitigation measures that could, if implemented, minimize significant environmental effects. (CEQA Guidelines, §§ 15 I26(c), 15126.1 (a).) We urged the City to adopt all feasible mitigation measures that will protect our communities before the catastrophic events forecast by the RDEIR occur. We noted that nearly one quarter of our region’s population lives within one-half mile of the crude oil shipments.”

This new 2016 letter continues with criticism of the Final Draft EIR, “…we appreciate that the City finally acknowledges the substantial risk to our region resulting from the crude oil shipments. However, the FEIR still fails to adopt a single mitigation measure to address the impacts of the Project and the FEIR fails to adequately respond to our letters.”

The letter concludes with five detailed examples of “the inadequacies and misstatements in the Responses to our comment letters.”

Taken together, these inadequacies point out what may be understood as “fatal flaws,” indicating that the EIR should be revised and recirculated yet again, or thrown out for a fresh start.

Or … as in my opinion, the project should simply be dropped.