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.”
Repost from WAMC Northeast Public Radio [Editor: Significant quote: “More than 80 environmental, business, recreational and other organizations along with former members of state agencies, current and former state legislators and both the Plattsburgh and Burlington City Councils have signed a letter to the Vermont and New York Congressional delegation calling for a ‘federal legislatively imposed ban on the transport of oil along Lake Champlain and the Hudson River.'” – RS]
Advocates Call On Federal Officials To Ban Rail Transport Of Bakken Oil
By Pat Bradley, Apr 14, 2016
PAT BRADLEY/WAMC
A coalition of environmental and municipal officials stood in a park overlooking the Saranac River and a rail trestle this morning. They announced a new effort to convince federal representatives from New York and Vermont to ban crude oil transport in order to protect Lake Champlain and the Hudson River.
The group met at MacDonough Park across from City Hall. The park is only a few hundred yards from a rail trestle that daily sees trains carrying crude oil cross over the Saranac River as it empties into Lake Champlain. The advocates say transporting Bakken oil by rail remains an unacceptable risk to Vermont and New York, and is especially hazardous to the sensitive ecosystems of Lake Champlain and the Adirondacks.
More than 80 environmental, business, recreational and other organizations along with former members of state agencies, current and former state legislators and both the Plattsburgh and Burlington City Councils have signed a letter to the Vermont and New York Congressional delegation calling for a “federal legislatively imposed ban on the transport of oil along Lake Champlain and the Hudson River.”
National Wildlife Federation Senior Counsel Jim Murphy outlined a precipitous increase in rail accidents nationally over the past three years and says the oil trains that travel along Lake Champlain are too dangerous. “We have concluded that there is no safe way to transport this oil at this time. The trains that roll along this lake are sometimes twice the length of the train that destroyed Lac Megantic. The danger is just simply too high.”
Plattsburgh Ward One City Councilor Rachelle Armstrong called the oil trains travelling through the city an ominous problem. “Our municipalities need to stand up and become the advocates in a bold and aggressive way so that we bring the attention to bear on this issue that our leaders at the federal level need to recognize.”
The rail corridor along Lake Champlain also passes through the Adirondack Park. Adirondack Council spokesman John Sheehan says the trains pose a significant risk to the largest park in the contiguous United States. “This is also considered to be a biosphere reserve by the United Nations. The danger here is also to a drinking water supply for one hundred eighty thousand people. Lake Champlain serves as water for people from Vermont, New York and Quebec. So we have grave concerns about the environment, about communities and about wild lands here and we’re hoping that the federal government takes them seriously.”
The trains carrying Bakken crude travel 100 miles along Lake Champlain and through the Adirondacks to the Port of Albany. Lake Champlain Committee Executive Director Lori Fisher believes a catastrophic accident is not a matter of if, but when. “In the past we have pushed for a ban on the DOT-111’s. That hasn’t happened. There’s been some movement to upgrade trains to the twelve thirty two’s. They don’t represent a greater safety for our communities. That’s why we see the need to push for a ban on oil transport until it can be safe. We know it’s not safe now and it’s a ticking time bomb and we need to act now.”
The advocates noted that the evacuation zone from an oil train derailment in Plattsburgh includes City Hall, the downtown business area, the Country Government Center and numerous schools.
[Editor: I have not been able to keep up with splitting off important individual letters from the City’s postings of composite documents. Nevertheless, here are a few of the important recent contributions opposing Valero’s dirty and dangerous Crude By Rail proposal and/or critical of the environmental report. – RS]
Public Comments Submitted April 13-14, 25 pages, 0.8 MB (includes letter from California Attorney General disagreeing with Benicia City staff, consultants and Valero)
