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.”
Benicia Oil-by-Rail Battle Hinges on Legal Controversy
Opponents of oil-by-rail shipments want the city to block a proposed Valero facility, but Valero says the city lacks this power.
By Jean Tepperman
Andres Soto said Benicia shouldn’t wait on federal regulators to reject Valero’s oil-by-rail project. BROOKE ANDERSON
An oil-by-rail facility that Valero wants to build at its Benicia refinery has been stalled by opponents concerned about environmental impacts and safety issues for over three years now. But Valero and an attorney working on contract for the City of Benicia claim that the city cannot stop the project because federal railroad law preempts the city’s powers. Project opponents say this is a flawed interpretation of federal law, however, and that Valero’s new oil facility should be cancelled.
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 the company’s 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.
Supporters say the crude-by-rail project is necessary to preserve Valero’s — and Benicia’s — economic viability and the nation’s energy independence. Opponents say it will cause increased air pollution and environmental destruction, and that expanding oil-by-rail transportation increases the risk of catastrophic accidents like explosions and fires due to derailment.
But according to Bradley Hogin, a contract attorney advising the city, 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, claims Hogin. The legal doctrine Hogin is referring to is called federal preemption.
But other attorneys call Hogin’s interpretation of federal laws “extreme” and say that the city has every right to block the project if it so chooses. Environmentalists have also pointed out that Hogin has represented oil companies against environmental and community groups in the past. Project opponents say Hogin is biased in favor of Valero, and is not giving the city accurate legal advice. When asked if Hogin’s previous work suggests that he could be biased, Benicia City Attorney Heather McLaughlin said no. “I think he has had great experience in the refinery industry and I think that’s been helpful for us,” she said.
Hogin’s legal argument that cities are preempted from influencing oil-by-rail projects has major national implications. As the shipment of crude oil via railroad has grown in recent years, so have the number of derailments, oil spills, fires, and explosions, including the 2013 explosion that killed forty-seven people in Lac Megantic, Quebec. As a result, communities across North America have demanded that local authorities stop rail shipments of crude oil through their towns. In addition to Benicia, San Luis Obispo County is currently in the midst of a battle over crude by rail.
“Hogin is making a case that would affect cities across the nation dealing with crude by rail,” said Marilyn Bardet, a founder of Benicians for a Safe and Healthy Community. “They [are trying] to create a legal precedent here.”
Many lawyers, including California Attorney General Kamala Harris, say the exact extent of federal preemption of local authority is still being worked out in the courts. In her legal opinion on the Valero project’s environmental review, Harris cited several cases in which local governments were allowed to implement health and safety regulations involving railroads.
Several lawyers submitted opinions and testified in Benicia City Council hearings held on April 4 and 5 challenging Hogin’s interpretation. And in one of the hearings, Berkeley City Council member Linda Maio told her Benicia counterparts that the city council has the right to make its own land-use decisions. “This is in your town and you’ve been elected to see to the health and safety of your citizens,” said Maio.
Valero and its critics have been arguing about the extent to which Benicia’s authority is preempted by federal law since last summer. After the planning commission rejected Valero’s project in February, the company showed up at the March city council meeting with a surprise request: that the council delay voting on the project until Valero has a chance to make an appeal to the federal Surface Transportation Board (STB), which regulates railroads.
That didn’t sound right to Benicia resident Andres Soto, who works for Communities for a Better Environment, an environmental group opposed to the project, so Soto called the STB and talked to staff attorney Gabriel Mayer. In a report Soto submitted to the city council, he wrote that Mayer told him that the STB is not the final authority on federal preemption, and that the state and federal courts serve that purpose.
Soto also said that the STB deals with disputes among railroads, and since Valero is not a railroad, it’s unlikely the agency would take its case. Many speakers at last week’s hearings urged the city council to deny Valero’s bid for a delay and reject the project immediately.
But project supporters emphasized the economic benefits of bringing crude oil by rail to Benicia. Berman Olbadia of the Western States Petroleum Association, an oil industry lobbying group, said that Valero creates jobs and generates tax revenue. Michael Wolf, of Ageion Energy Services, said that oil by rail reduces California’s dependence on foreign oil.
Later, however, Greg Karras, senior scientist at Communities for a Better Environment, said North American crude would create serious new problems that the environmental reviews for the Valero project did not address. Canadian tar sands produce very heavy oil with an extra load of toxic chemicals, said Karras. In addition, refining tar sands oil would dramatically increase the refinery’s emissions of carbon dioxide, the main pollutant causing global warming. The other major type of North American crude from North Dakota’s Bakken fields produces highly explosive oil. Trains carrying Bakken crude have been involved in a number of fires and explosions.
People from “uprail” communities have also turned out at Benicia hearings to oppose the Valero project. “The oil trains will pass through our downtown and pass my house,” said Frances Burke, a resident of Davis. “We will have the fumes and particulate matter from increased daily trains. I’m also a potential victim of a deadly accident, explosion, or derailment.”
Benicia resident Bardet said the project site is especially dangerous because the crude-oil-offloading tracks would be “adjacent to crude oil storage tanks and Sulphur Springs Creek, in a flood-plain zone and active fault zone, and also directly across from the industrial park along East Channel Road.” According to Bardet, derailment or fire involving flammable crude oil could have catastrophic results.
College student Jaime Gonzalez said the project would further proliferate fossil fuels, which accelerate climate change, and that future generations will bear more of the burden. “The consequences would fall on the shoulders of my generation,” he said.
Hearings will continue April 18 and 19 in Benicia, and the city council will then decide whether to wait for Valero’s federal appeal, or vote to approve or deny the project.
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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