Appeals Court Doesn’t Stop Crude Oil Rail Shipments Through Richmond
July 19, 2016 9:22 PM
Protesters against fracked oil trains held a demonstration outside the Kinder-Morgan rail yard in Richmond on September 4, 2014. (CBS)
SAN FRANCISCO (CBS SF) — A state appeals court upheld dismissal of a lawsuit in which environmentalists sought to challenge crude oil rail shipments through Richmond.
A trial judge’s dismissal of the lawsuit was upheld in court Tuesday in San Francisco. The court said Communities for a Better Environment, known as CBE, and other groups missed a state law’s six-month deadline for challenging a lack of environmental review for the shipments.
A three-judge panel said the California Environmental Quality Act didn’t allow an exception to the deadline even though the groups said they couldn’t have discovered the project sooner.
“Ultimately, CBE’s arguments about the proper balance between the interests of public participation and of timely litigation are better directed to the Legislature, not this court,” Court of Appeal Justice Jim Humes wrote for the court.
The panel unanimously upheld a similar ruling in which San Francisco Superior Court Judge Peter Busch dismissed the lawsuit in 2014.
The crude oil is carried by the Texas-based Kinder Morgan energy company in railroad tanker cars from North Dakota’s Bakken shale formation to Kinder Morgan’s Richmond terminal, where it is transferred to tanker trucks.
The shale oil is extracted through hydraulic fracturing, or fracking, and horizontal drilling.
The environmental groups contend that shale crude oil, which is lighter than other types of crude oil, is dangerous because it is more explosive in the event of a derailment. They also say fumes emitted during the oil transfers harm human health.
The groups sued the Bay Area Air Quality Management District in March 2014 after discovering that the agency had quietly issued a permit for the project in July 2013 without requiring an environmental impact report.
The permit allowed Kinder Morgan to change its previous ethanol facility to the crude oil facility.
In addition to CBE, the plaintiffs were the Natural Resources Defense Council, Asian Pacific Environmental Network and Sierra Club. They were represented by the Earthjustice law firm.
They argued that a report should have been required under the CEQA law, while the air district and Kinder Morgan contended no report was needed because granting the permit was a ministerial rather than discretionary decision.
But the issue of whether there should have been an environmental report was never reached in court because Busch ruled, and the appeals court agreed, that the lawsuit was filed too late.
The appeals court said, “We acknowledge that if there were any situation in which it would be warranted to delay the triggering of a limitations period in the manner CBE urges, it would be one in which no public notice of the project was given and the project’s commencement was not readily apparent to the public.”
But the panel said that case law set by the California Supreme Court and other courts established that the Legislature made a “clear determination” that CEQA challenges must be filed within the deadline.
Company charged in crude oil spill that fouled beaches
By Brian Melley, Associated Press, Updated May 18, 2016 2:01 pm
FILE – In this May 21, 2015, file photo, an oil-covered bird flaps its wings amid at Refugio State Beach, north of Goleta, Calif. Plains All American Pipeline said in a statement Tuesday, May 17, 2016, that a California grand jury has indicted the company and one of its employees in connection with the pipeline break.
A Texas pipeline company responsible for spilling more than 140,000 gallons of crude oil on the California coast last year was indicted on dozens of criminal charges in the disaster that closed popular beaches and killed sea lions and birds, prosecutors said Tuesday.
Plains All American Pipeline and one of its employees face 46 counts of state law violations in the May 19, 2015, spill that initially went undetected until oil began pouring onto a pristine beach on the Santa Barbara coastline and into the ocean.
Initial investigations by federal regulators found the 2-foot-wide underground pipeline was severely corroded where it broke on land.
Plains is charged with four felony counts of spilling oil in state waters and could face fines of up to $2.8 million if convicted of all the charges, prosecutors said.
“The carelessness of Plains All American harmed hundreds of species and marine life off Refugio Beach,” California Attorney General Kamala Harris said in a statement. “This conduct is criminal, and today’s charges serve as a powerful reminder of the consequences that flow from jeopardizing the well-being of our ecosystems and public health.”
Plains said the spill was an accident and believes no criminal behavior occurred.
“We will demonstrate that the charges have no merit and represent an inappropriate attempt to criminalize an unfortunate accident,” the company said.
The spill came two weeks before Memorial Day weekend last year and forced the state to close popular beaches as an oil sheen spread over miles of the Pacific Ocean. More than 300 dead animals, including pelicans and sea lions, were found in the aftermath, and tar balls from the spill drifted more than 100 miles away to Los Angeles beaches.
The Houston company faces three dozen misdemeanor counts of harming wildlife.
A Plains employee and the company also are accused of failing to report the spill quickly enough to state emergency officials. An investigation by federal regulators found that it took hours for Plains to recognize what happened and notify officials.
A worker removes oil in 2015 at Refugio State Beach, north of Goleta. An underground pipe, owned by Plains All American Pipeline of Texas, spewed 140,000 gallons of oil into the Pacific. Jae C. Hong / Associated Press 2015
Associated Press Published 3:12 pm, Tuesday, May 17, 2016
WASHINGTON — The speeding Amtrak train that crashed in Philadelphia last year, killing eight people, most likely ran off the rails because the engineer was distracted by word of a nearby commuter train getting hit by a rock, federal investigators concluded Tuesday.
The National Transportation Safety Board also put some of the blame on the railroad industry’s decades-long delay in installing Positive Train Control, equipment that can automatically slow trains that are going over the speed limit.
Engineer Brandon Bostian was apparently so focused on the rock-throwing he heard about over the radio that he lost track of where he was and accelerated full-throttle to 106 mph as he went into a sharp curve with a 50 mph limit, investigators said at an NTSB hearing convened to pinpoint the cause of the May 12, 2015, tragedy. About 200 people aboard the Washington-to-New York train were injured.
“He went, in a matter of seconds, from distraction to disaster,” NTSB member Robert Sumwalt said.
Bostian, who has been suspended without pay since the crash for speeding, did not attend the hearing. He and his lawyer did not immediately return calls and emails seeking comment.
Had Positive Train Control been in use along the stretch of track, “we would not be here today,” said Ted Turpin, an NTSB investigator.
“Unless PTC is implemented soon,” NTSB Chairman Christopher Hart warned, “I’m very concerned that we’re going to be back in this room again, hearing investigators detail how technology that we have recommended for more than 45 years could have prevented yet another fatal rail accident.”
Amtrak noted that Positive Train Control is already in place on most of its portion of the Northeast Corridor and that it has also installed inward-facing video cameras on locomotives.
The problem of people throwing rocks at trains is so common that train crews have a term for it: “getting rocked.” But it is a danger railroads are almost powerless to stop. No one was ever arrested in the rock-throwing in Philadelphia.
Investigators said they believe Bostian was accelerating because he thought he had already passed the sharp Frankford Junction curve. After the curve, the tracks open up into a straightaway where the speed limit is 110 mph.
During the investigation, authorities ruled out cell phone use on Bostian’s part, as well as drugs or alcohol.
By John D. Sutter, Wed March 9, 2016 10:56 PM ET
Meet the teen suing Obama over climate change 01:14
Eugene, Oregon (CNN) > Nearly two dozen kids — ages 8½ to 19 — appeared in federal court here on Wednesday morning. They wore nose rings and braces. Suits too big in the shoulders. Some doodled, others took copious notes. The backs of some heads barely peeked above the courtroom’s wooden benches. But these plaintiffs, however young and small, united behind a massive cause that should inspire any of us old folk: They’re suing the U.S. government — and President Barack Obama — for failing to act rapidly to stop climate change.
It’s the future suing the present.
The climate kids versus the feds.
“We sat in this courtroom today, and we have filed this lawsuit, because the leaders we have elected to take care of our planet, and to take care of our country for our generation and those to follow, are failing to do their job,” said Xiuhtezcatl Tonatiuh, a 15-year-old from Colorado who is one of the 21 young plaintiffs. “My generation is going to be inheriting the crisis we see all around us today. We are standing up not only for the environment and the Earth and the atmosphere but for the rights we have to live in a healthy, just and sustainable world.”
“We are the generation that gets to rewrite history,” he added, speaking to a crowd of more than 100 outside the courthouse. “The pen is in our hands, and we are rewriting history today.”
Related article: Meet the 15-year-old kid who is suing Obama over climate change
The climate-kids suit, which got a pretrial hearing on Wednesday before Judge Thomas Coffin, is part of a years-long campaign by a group called Our Children’s Trust.
The organization, with the support of former NASA climate scientist James Hansen and others, asserts Congress and the President have done far too little to stem the climate crisis. So they’ve taken to courts, filing petitions and complaints on behalf of young people in all 50 states, saying governments are failing to protect them and future generations from the harms of global warming.
This is the second U.S. federal court case they’ve filed (the first failed), and they’re also working internationally. The government argued before Coffin on Wednesday that the suit should be dismissed. It’s unclear when he will reach a decision.
‘This case is about survival’
“At its core, this case is about survival and whether the federal defendants can continue to threaten it,” said Julia Olson, lead attorney for the kids.
That may sound like hyperbole, but it isn’t. Scientists and the U.S. government have known for decades that burning fossil fuels and chopping down rainforests moves CO2 from the ground into the atmosphere — and too much of it makes the Earth hotter and hotter. The consequences are stark, from rising seas that could swallow island nations to deadly heatwaves, mass extinctions in the natural world and the spread of diseases.
Lives and property are at risk, and since climate change only gets worse as we pump more pollution into the atmosphere, young people have far more at stake than older folks.
For future humans, the very habitability of the planet is in jeopardy.
On 6 degrees of climate change (Opinion)
The federal complaint in Oregon, which the government and fossil fuel industries have asked the judge to dismiss, says the constitutional rights of these young people — including the right to life, liberty and property — are being violated. Furthermore, the climate kids’ attorneys also say they’re being discriminated against as young people who have the most to lose as climate change gains steam over time but who have little or no voice in the political process.
“This is an intergenerational issue,” Hansen, former director of the NASA Goddard Institute for Space Studies and current head of the climate science program at Columbia’s Earth Institute, told me. “It’s a case where our actions will affect our grandchildren and their children.”
Children speak to their fears of a difficult future
His granddaughter, Sophie, is among the plaintiffs. Pretty much all of them can list specific ways in which climate change is messing up their lives.
One young man, Alex Loznak, 19, grew up on a farm his ancestors settled after crossing the Oregon Trail. He’s worried it may not survive or won’t be as productive because of drought. Levi Draheim, the 8½-year-old (his mom told me he likes it when you include the ½) fears his family’s property in Florida, where he lives, will be swallowed up by the rising tides associated with warmer temperatures and melting glaciers.
Others have witnessed wildfires and hurricanes.
“There’s no way that it can’t work,” Victoria Barrett, a 16-year-old from New York, said of the lawsuit. “We are going to be here when (older generations) are not.
“We’re going to be dealing with the issues they leave behind.”
The suit names a lot of old people and institutions as defendants. There’s President Obama, several federal agencies, including the Department of Energy and the Environmental Protection Agency, and the heads of some of those agencies. The complaint is asking the court to order the U.S. government to develop a plan to fight catastrophic climate change — and to stop contributing to the problem.
While there have been some reforms, one quarter of fossil fuels extracted in the United States in 2013 came from public lands, the suit says, and the government is actively working to permit the production, use and export of these dangerous fuels, according to the complaint.
Climate change: ‘Two degrees’ may decide the future
There are scholars who think only courts will do the trick.
“We are at a point with climate where nature’s math — the carbon math — counts,” said Mary Wood, faculty director of the Environmental and Natural Resources Law Program at the University of Oregon and who is not directly involved in the case. “And we have to be sure everything adds up. Only a court is positioned to do that. The administration is not doing that. Its efforts, while important, fall short. … The time for slow incremental steps is over.”
The attorneys for the climate kids also are trying to prove that the atmosphere is an asset held in public trust by the government and that federal agencies have a duty to protect it.
On this and other points, the feds made their opposition abundantly clear.
‘No constitutional right to a pollution-free environment’
“There simply is no constitutional right to a pollution-free environment,” a U.S. Department of Justice attorney said, arguing these matters should be left to the president and Congress.
“The federal courts are not a proper forum in which to raise generalized grievances about federal policies,” the DOJ attorney said. He added that there is a “massive gap” between the harms the plaintiffs are alleging and the federal government’s actual actions; that companies and governments outside the United States contribute to the problem, too; and that young people should not be treated as a special class for discrimination in this or other cases.
The message: Sorry, kids, maybe next time?
An attorney representing fossil fuel industry associations also generally sided with the Obama administration in court. So, really, it was Obama and Dirty Energy versus the future.
The symbolism was striking, and it wasn’t lost on the young plaintiffs.
“It was a lot of big words. It was hard to follow,” Avery McRae, a 10-year-old plaintiff wearing a peacoat and gold-colored slippers, told me after court. “They (the defense and intervening attorneys) care more about their business than they do about the future of our generation.”
McRae, who’s from Eugene, Oregon, where the motion to dismiss the case was heard, became interested in climate change after she read a book about snow leopards and found out that climate change was among the factors threatening their survival.
“A few years ago, when she was young,” her mom told me (as if she’s not young now), McRae took that knowledge and held a party in honor of the imperiled snow leopards, raising $300 for a conservation group.
She then did the same for wolves and salmon.
Wednesday morning, the 10-year-old was drawing horses and singing along to musicals before going to federal court. Her mother, Holly McRae, told me it was almost “sad” to see her bright-eyed daughter sitting in such a sterile, wood-paneled environment in front of a federal judge. “It was surreal, really,” said her father, Matt McRae.
But they’re also immeasurably proud.
They hope her presence will help compel the judge to reject the government’s motion to dismiss the case — and to move it to trial.
Maybe it will be an important step toward climate justice.
As she watched the proceedings, Holly McRae thought about what the judge must be seeing as he heard oral arguments from the three attorneys.
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