Category Archives: Local Regulation

Local elections, Local Regulation

San Francisco Chronicle OPINION: Can local legislators speak freely to voters? It depends

Repost from The San Francisco Chronicle, INSIGHT

Can local legislators speak freely to voters? It depends

By Peter Scheer, Friday, January 2, 2015

Local government, Republicans and Democrats agree, is the most democratic (with a small d) form of government. The closer government is to the people, the theory goes, the more accountable it is to voters and the more responsive to the public will. Congress is the most remote, hence least accountable; your local city council is the closest, therefore most attuned to your needs and interests.

Except in California and several other states where elected, local officials can find themselves in trouble for doing exactly what elected local officials are supposed to do. Things like communicating regularly with citizens; staking out clear positions on issues that constituents care about; listening to voters’ complaints about the status quo and promising, if elected (or re-elected), to make specific changes.

These communications are the lifeblood of democracy. They enable voters to make meaningful choices among candidates, while providing elected officials the information they need to represent the people’s interests. The resulting feedback loop between politicians and voters is political expression of the highest order, entitled to the fullest, most robust First Amendment protection.

And yet this paradigm of government accountability is under a cloud of uncertainty.

The cause: legal rulings that force legislative bodies to function like courts when they make decisions that are — to use the applicable legalese — “quasi-judicial” in nature. In such cases, the members of a city council, school board or county board of supervisors must be impartial and unbiased, more like judges than legislators.

What does this mean for a newly elected (or re-elected) city council member? Suppose the council will decide whether to approve expansion of a controversial housing development. If the member told voters during the election that she opposed expansion (because that is what she believed), then she may be forced — on grounds of bias — to abstain from the vote and all deliberations.

The upshot is that her constituents will be disenfranchised, which is no small penalty.

This collateral damage to free speech rights might be tolerable if local officials at least had a clear understanding of when it’s OK to act politically — that is, doing what voters want — and when, instead, they must act as disinterested judges, watching what they say and disregarding what voters say. But the fact is that the distinction between legislative acts and quasi-judicial acts is anything but clear.

Take, again, the real estate example. … If the proposed housing expansion comes before the city council as a zoning code amendment — ostensibly a legal change of general applicability but also necessary for the project to go forward — the council is probably free to proceed in legislative mode, taking politics into account and honoring members’ election promises. On the other hand, if the issue comes up as a vote on an application for a permit or license, the council members probably have to put on their judicial robes (figuratively speaking), ignore what voters say, and exclude from the process those council members who have spoken out on the issue.

The line separating legislative from quasi-judicial decisions is barely discernible to lawyers who practice in the government arena — much less to the amateur politicians who predominate on legislative bodies of cities, counties, school districts and the like.

Moreover, even in cases where the line is ultimately visible, elected officials may have no way of knowing, well in advance of the decision, whether the issue will be presented to the council as a legislative matter or a quasi-judicial matter.

Faced with this uncertainty, many council members do the only safe thing: They censor themselves.

Unsure whether they will have to act like judges on a particular issue, they will act more like judges than politicians on all issues. They will curb their interaction with voters. They will refrain from making political promises. When asked by reporters and voters to comment on a local controversy, they will resort to vague generalities, avoiding specifics at all costs.

The court rulings creating this uncertainty are not new. Some have been on the books for years. What is new is that lawyers representing local governments are relying on these rulings in their advice to local officials. Because their job is to keep their clients out of trouble, the lawyers are warning public officials to curb their comments, and their candor, about local issues.

The result is a cumulative weakening of democracy, and a diminishing of political discourse and debate on the local issues that citizens care most about.

Peter Scheer is the executive director of the First Amendment Coalition.
Local Regulation, Parked trains, West Sacramento CA

Another city says no to hazardous rail tank cars

Repost from The Sacramento Bee
[Editor: Significant quote: “…city officials said Union Pacific has been parking a dozen ethanol train cars at times on side tracks, some near the Ironworks Lofts housing area, where they wait until there is room to shuttle them onto the Buckeye property….City officials say UP frequently moves train cars back and forth across 15th Street at Jefferson Boulevard to make room in its yard.”  Does this sound like something we can expect on nearby rails and street crossings outside of Valero if the City approves crude-by-rail?  – RS]

West Sacramento says no to ethanol trains

By Tony Bizjak, 12/21/2014
A tanker truck is filled from railway cars containing crude oil on railroad tracks in McClellan Park in North Highlands on Wednesday, March 19, 2014. Several crude oil and ethanol trains have been involved in crashes and explosions nationally in recent years, prompting concerns in cities along rail lines.
A tanker truck is filled from railway cars containing crude oil on railroad tracks in McClellan Park in North Highlands on Wednesday, March 19, 2014. Several crude oil and ethanol trains have been involved in crashes and explosions nationally in recent years, prompting concerns in cities along rail lines. | Randall Benton

The city of West Sacramento and a Texas-based gasoline company are battling over whether it’s riskier to ship large amounts of ethanol through city streets on trains or on tanker trucks – a dispute that last week spilled into court.

Every day, six train cars full of the fuel additive arrive at a mixing terminal on West Sacramento’s riverfront south of Highway 50.

Saying the city is uncomfortable with trains, some of which sit unattended with their volatile cargo outside the terminal for days, the West Sacramento City Council refused on Wednesday to renew the company’s rail transport permit. The company, Buckeye Terminals, mixes the ethanol with gasoline at its South River Road plant for sale at Northern California gas stations.

Councilman Bill Kristoff noted that the train cars often park in the city’s Bridge District near a residential area, and that city officials are not allowed to know exactly what the cars carry. “I don’t understand the rail business well enough to know why all of these cars have to stay in our community for as long as they stay, and at the same time we don’t get to know what’s in them,” he said. “That is sort of alarming to me.”

Several crude oil and ethanol trains have been involved in crashes and explosions nationally in recent years, prompting concerns in cities along rail lines.

Buckeye officials quickly fired back, suing the city and contending that the permit denial creates a greater risk to the public because it likely will force the company to quadruple the number of tanker truck deliveries it receives daily at the plant, as a replacement for the rail deliveries.

In the lawsuit, filed Friday in Yolo Superior Court, the company accuses the city of failing to conduct adequate traffic studies in the new development areas along South River Road. Those studies, if done, would show safety risks where ethanol trucks mix with traffic, said Braiden Chadwick, a Buckeye attorney.

“The last thing anyone wants to see is a car vs. tanker truck (crash); that is a bad combo,” Chadwick said. “It is just a recipe for disaster.”

City officials declined to comment on the lawsuit, saying they are reviewing it.

West Sacramento’s decision to stop the ethanol trains represents another step in a decades-long effort by city leaders to transition the old industrial waterfront south of the Raley Field ballpark into modern live-work neighborhoods with condominiums, row houses, offices, hotels, restaurants and entertainment venues. The city previously ushered industrial companies out of the Bridge District around Raley Field and shut down a rail line along the waterfront to clear the site for redevelopment.

The city has accelerated those efforts in the Pioneer Bluff area near the Buckeye facility in recent months. A row of unused cement company silos is being torn down on the riverfront. The city has shut its sewer treatment plant. It also is planning to close its corporation yard to open space for waterfront development. The city opened a new bridge this month to connect South River Road to the Southport area, bringing more vehicles past the Buckeye site.

Although the Buckeye facility does not fit West Sacramento’s plans for the area, the permit refusal “is absolutely not intended to try to drive Buckeye out of the district,” Mayor Christopher Cabaldon said. Buckeye is one of several fuel-related industries still operating in the area south of Highway 50.

“The existing Buckeye facility is absolutely welcome to remain and operate at its existing site to the extent that it is complying with the terms of its permits (and) that it is not invading the public right of way,” Cabaldon said.

Buckeye’s attorney disagreed, saying the city’s actions suggest it is trying to squeeze the company out. “The confluence of events lead us to that conclusion,” Chadwick said. “It looks like they are trying to make operations of the Buckeye facility more difficult.”

Buckeye’s rail shipment permit for ethanol expires at the end of this month. The company had sought a permit to continue train deliveries of six cars a day through 2019. The site has been an ethanol station since 2002, when the city agreed to the first of a series of limited permits to allow a previous terminal owner to receive rail shipments of the additive. Buckeye bought the facility a few years ago. The company mixes the ethanol with gasoline that is piped to West Sacramento from the Bay Area.

The dispute is part of a growing national debate over the safety of rail transport of flammable commodities. Federal transportation officials are contemplating additional safety regulations for train transports after several explosive crashes in recent years. The federal focus has been on crude oil shipments to refineries. But safety experts say ethanol trains also should be subject to more requirements, citing crashes that caused explosions and fires.

Testifying this week before the West Sacramento City Council, Fire Chief Rick Martinez expressed a preference for tanker truck ethanol shipments over rail shipments, acknowledging both have risks.

Martinez noted that the city has almost no legal control over rail operations, so it cannot prohibit trains with hazardous commodities from parking overnight next to residential areas. The federal government pre-empts city regulation of rail activities. But, Martinez said, the city can manage the risk of tanker truck shipments, controlling where the trucks drive, and at what speed, and can prohibit those trucks from sitting unattended overnight.

Martinez and other city officials said Union Pacific has been parking a dozen ethanol train cars at times on side tracks, some near the Ironworks Lofts housing area, where they wait until there is room to shuttle them onto the Buckeye property. The parking area runs from Raley Field under the Pioneer Bridge to 15th Street. City officials say UP frequently moves train cars back and forth across 15th Street at Jefferson Boulevard to make room in its yard.

Martinez said his department also has noted ethanol train cars parked along Jefferson Boulevard.

“This practice puts the adjacent residential neighborhood at increased risk from a hazardous materials incident,” Martinez said in a recent memo. “By removing the ethanol rail cars from their current location, the risk potential is significantly reduced.”

Buckeye attorney Chadwick contends that increasing the number of tanker trucks making daily ethanol deliveries is a risky move. He said the trucks would have to make left turns on South River Road to get to the plant, and would have to deal with more traffic as the city turns the Pioneer Bluff area and the Bridge District into populated communities.

Buckeye officials say they currently receive ethanol on two to three tanker trucks a day, in addition to the six rail cars. A city staff report suggests as many as four trucks may arrive on weekdays. The city analysis says Buckeye could bring in nine additional tanker trucks daily to its plant after rail shipments are halted this month.

Chadwick said that number is low, and that his company estimates 15 or more additional tanker trucks would be needed daily. He said he did not know what route the trucks would use to get to West Sacramento, but said they likely would arrive via area freeways.

The lawsuit, he said, maintains the city failed to adequately study how much extra traffic would use South River Road, and how that traffic would mix with daily ethanol trucks trying to make left turns.

“Buckeye views that lives might be at risk here,” Chadwick said. “Help us keep the facility safe, because we are not going anywhere.”

Crude By Rail, Derailment, Explosion, Local Regulation

Berkeley Rent Board opposes crude oil transports by rail through city

Repost from The Contra Costa Times

Berkeley Rent Board opposes crude oil transports by rail through city

By Tom Lochner, 12/16/2014

BERKELEY — The city’s Rent Stabilization Board added its voice to a growing body of opposition to crude oil trains rolling through the East Bay this week, warning that derailments could trigger explosions that could damage affordable rental housing stock as well as schools, health care agencies and businesses.

“An accident is not a question of if, but when and where,” board member John Selawsky said before voting to support a resolution co-sponsored by Alejandro Soto-Vigil, James Chang, Paola Laverde-Levine and vice Chairwoman Katherine Harr opposing a plan by Phillips 66 to ship crude oil by rail from outside the state to its Santa Maria refinery in San Luis Obispo County.

Phillips 66 has said it is confident that environmental and public safety issues raised by the project will be addressed in accordance with the California Environmental Quality Act. The company also noted that railroads are federally regulated.

The trains, some 250 a year, each with 80 tank cars, would take several possible routes to Santa Maria, from the south through the Los Angeles basin or from the north via Sacramento, Martinez and along the shore of San Pablo and San Francisco bays through San Jose to the Central Coast, according to a revised draft environmental impact report under review by San Luis Obispo County. An alternate route could go through Stockton and Martinez and down the East Bay shore; yet another, through Stockton and San Jose via the Altamont Pass.

Tuesday’s vote was 8-0 with one abstention, by Judy Shelton, who said she firmly opposes transporting crude oil by rail through Berkeley, but questioned whether the rent board is the proper vehicle for that opposition.

Soto-Vigil noted that the rent board is a body separate from the City Council, and its own legal entity.

“Our mission is to preserve our rental housing stock,” he said.

Chang noted that the council already is on record opposing the project. In March, the council unanimously declared opposition to the transport of crude oil by rail through East Bay cities. And in November, the council signed on to comments to the DEIR by a group of environmental organizations opposing the Phillips 66 project.

Canadian regulation, Crude By Rail, Local Regulation, Rail routing, Risk Assessment

Newly elected mayor of Toronto says he wants oil trains out of his city

Repost from rabble.ca

Newly elected mayor of Toronto says he wants oil trains out of his city

By Roger Annis | December 6, 2014

Newly elected mayor of Toronto says he wants oil trains out of his cityThe Toronto Star has a front page story on Dec. 5 saying newly elected  mayor John Tory wants trains carrying oil and other dangerous cargos through his city to be rerouted through less populated areas. Pretty big news, even if the conservative mayor is an unlikely candidate to carry this fight very far. Indeed, the Star says the mayor was “unavailable” for follow-up comment after delivering his one-off pronouncement on the matter.

Such rerouting would cost billions of dollars in new railway construction. Also, those communities upon which new, dangerous cargo rail lines would be imposed might, just maybe, say ‘no thanks’.

The Star also reports that the rail companies and Transport Canada are continuing to stonewall munipalities (and provinces?) over the release of studies of risk assessments of the movement of dangerous cargos. It writes:

In Toronto, the CP rail line runs through the city along Dupont St., while Canadian National’s line runs across the northern GTA, roughly parallel to Highway 407. Residents in downtown neighborhoods where trains carrying dangerous goods frequently travel have been clamoring for more information since the July 2013 Lac-Mégantic train derailment disaster, which killed 47 people. But neither Transport Canada nor the rail companies will provide the details they want, saying the information is commercially sensitive.”

The newspaper writes further:

Under an April 2014 emergency directive, rail companies must conduct a risk evaluation on every route that carries 10,000 or more tankers bearing dangerous goods per year, along with trains holding 20 or more carloads of dangerous goods.

A Transport Canada spokeswoman told the Star the risk assessments are reviewed by the federal regulator, but are not made public because the information still belongs to the rail companies and the documents “contain sensitive commercial information.”

The railways are sticking to their guns that they will only meet their supposed requirement to provide dangerous cargo information to municipalities on condition that the latter sign confidentiality agreements. CN says 360 municipalities, including Toronto, have signed on. Only one has refused–Windsor, Ontario. (It’s not clear from the Star report if the numbers are for Ontario or for all of Canada.) The Star writes:

Windsor Fire Chief Bruce Montone said he has yet to be authorized by city council to sign the document due to the last clause, which stipulates that the individual signing the agreement agrees that if they violate the agreement, CN can seek an immediate injunction in court.

“We would be giving up our inalienable right under the Charter to argue our case. That’s the piece that’s difficult,” he said. “We acknowledge that they can take injunctive action, and we won’t disagree with that. But who knows what the circumstances might be (for revealing information) …This is removing our ability to undertake due process.”

Unbelievable. What a show of feigned concern over Lac Mégantic that federal Transport Minister Lisa Raitt has been staging during this past year and a half.

One of the very big problems for CN and CP to transport oil from the west to the east is that they gave up their lines through the Ottawa Valley over the past 20 years. CP’s abandonment is quite recent; CN’s was 20 years ago. Oops, now we have a surge of oil rail traffic from western Canada and U.S. to Montreal and points east with nowhere else to direct it but through Toronto, be it via Michigan through Windsor and Sarnia or across and down from northern Ontario. There is an interesting Star article from earlier this year detailing the line abandonments. Excerpt here:

The second malady is line abandonment, which has spread aggressively since the 1970s. CP is ripping up its Ottawa Valley main line and, as a result, sending western crude oil bound for eastern refineries through Toronto, where it meets the flow of crude and ethanol coming from the U.S. via Windsor. This makes the trip 250 kilometres longer, strains CP’s busy southern Ontario network and increases the safety risks.

CN abandoned its Ottawa Valley line back in 1995 and has sent traffic for Montreal and points east through Toronto ever since. Its Toronto-Montreal line is busier than CP’s, handling numerous Via Rail passenger trains and all manner of freight, including U.S. crude oil entering Canada at Sarnia.

Today, another 975 kilometres of track is slated for scrapping. This includes the original CN Maritime main line. When the Plaster Rock derailment closed its primary Maritime freight artery, CN sent all Atlantic Canadian traffic, including crude oil, over this alternate route, proving its strategic value.

If I were a rail or an oil company executive in Canada right now, I would be praying very hard that another oil train disaster does not happen. Their disastrous oil by train expansion projects are hanging on very thin ribbons of steel.

I have a vague recollection from my younger years of a CN rail line that crossed central-northern Quebec and connected to the CN main line somewhere in northern Ontario or in Winnipeg. Turns out my recollection was good, but that line, built originally as the National Transcontinental Railway some 100 years ago and merged into CN rail later, has also been abandoned, in bits and pieces over the years. You can view an historic map of the line here. CN’s present-day route map is here. Like CP Rail, CN’s transcontinental connection in Ontario runs through Toronto.

This news from Toronto recalls the complaints of some mayors in the Vancouver region during the past year about the location of the BNSF rail line that carries coal and some (not a lot) of oil into the region from the U.S. along the Pacific coastline. They want the line moved inland and modernized. But who will pay hundreds of millions of dollars to build a new, rail line that doesn’t have a lot of traffic (less than 20 trains per day in total) unless there is lots of anticipated growth? The largest cargo on the line presently is coal, and we know where the future of that lies, as in ‘not so rosy’.

The business case and financing issues involved in a line relocation inland are troublesome details that the mayors overlook mentioning. I’m thinking here of the previous mayor of Surrey, Dianne Watts, who annointed her successor. When Mayor Watts mentioned last year (faintly echoing the demands of transportation experts going back decades) the creation of a fast passenger rail service to connect Vancouver to the large U.S. cities all the way to California, it sounded like she was serious about moving the rail line. But I can’t help but conjure an image of dazzling baubles being dangled before the citizenry.

Presently, Amtrak takes four hours to reach Seattle. An auto can make it in two and a quarter hours, plus whatever is the border wait time. Amtrak runs supplementary buses that are much faster than the train. Sadly in BC, we have federal and provincial governments that couldn’t give a hoot about rail passenger traffic. They have done nothing to promote it; worse, they have closed services and allowed rail lines and service to deteriorate to the point where closure seems just plain good sense. Who would want to travel in slow, dilapidated passenger trains over slow and dilapidated rail lines except for retired folks with a love of train travel and time on their hands?

The past and present mayors of Surrey are very close to the federal government. Dianne Watts will be a candidate of the Conservative Party in next year’s federal election. This is who we will expect to lead the very big, radical and necessary transition to railway travel to replace trucks and cars on highways? Not a chance.

As for the ‘green’ city council of Vancouver, I’m not aware that its majority party has an opinion on the whole matter. If it does, it didn’t voice it during last month’s municipal election.