Valero delay tactic – unnecessary interference in local politics

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has asserted that under federal preemption, requirements of the California Environmental Quality Act (CEQA) would be superseded, hence that any impact evaluations or determinations regarding mitigations directly or indirectly involving rail would be considered irrelevant and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.

— Marilyn Bardet, Benicia