Category Archives: Public permitting

EAST BAY EXPRESS: Attorney General Harris: Benicia Has Power to Reject Oil Facility

Repost from the East Bay Express

Attorney General Harris: Benicia Has Power to Reject Oil Facility

By Jean Tepperman, April 15, 2016
Kamala Harris
California Attorney General Kamala Harris

In a strongly-worded letter sent Thursday to City of Benicia officials, California Deputy Attorney General Scott J. Lichtig wrote that Valero, the City of Benicia’s planning staff, and an outside attorney advising the city have all incorrectly interpreted the law, and that Benicia has the duty to regulate land use, and must weigh in on a proposal to expand a controversial Valero oil facility.

As the Express reported earlier this week, 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 its 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.

But Valero and Bradley Hogin, a contract attorney advising the city, have claimed that 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. The legal doctrine Hogin is referring to is called federal preemption. Assuming the city is preempted from blocking it’s oil-by-rail project, Valero has asked the Benicia City Council to delay consideration of the project while it seeks an opinion from the Surface Transportation Board, the federal agency that regulates railroads.

The Attorney General’s letter sent yesterday included a simple response to this interpretation of the law: “we disagree.”

The letter from Harris’s office not only disagreed with Valero and Hogin’s legal opinions, but also stated that to the contrary, the California Environmental Quality Act (CEQA) actually requires the city to consider indirect impacts of the project.

“A failure to include all of a project’s potential environmental impacts . . . or to disregard that information in making a decision like the one regarding Valero’s [project], not only would defeat the purpose of CEQA, but would be an abuse of discretion,” Lichtig wrote.

Harris’ letter explained at some length that federal authority over railroads applies only to railroads. The Surface Transportation Board, the federal agency that regulates railroads, “preempts state or local regulation only if the activity at issue is performed by a rail carrier,” the letter said.

Because Valero is proposing to build the project on its own land — rail spurs and related equipment to connect its refinery to the main railroad line — the Surface Transportation Board has no jurisdiction, Harris concluded.

The attorney general’s letter “clearly shows that Valero’s request for a delay was a distraction, designed to delay the inevitable vote to deny this project,” commented Andres Soto of Benicians for a Safe and Healthly Community.

The city council is planning to reconsider the Valero project on April 18 and 19. Opponents expect the letter to strengthen their case that the council should immediately vote to deny project approval, rather than wait on the federal Surface Transportation Board to weigh in, as Valero has requested.

“This letter has immense implications for similar oil-train fights in San Luis Obispo and around the country, where the issue of federal preemption has been at the forefront of local permitting battles,” wrote Ethan Buckner of STAND.earth, another organization that is opposing the Valero crude-by-rail project.

CALIFORNIA ATTORNEY GENERAL: “For Benicia to turn a blind eye…”

By Roger Straw, April 14, 2016, 5:28 PM PDT

California Attorney General Kamala Harris: letter disagrees with City of Benicia staff, consultants and Valero

Today the City of Benicia received a letter from California Attorney General Kamala Harris disagreeing with City staff, consultants and Valero Refinery.

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.”

To download the full 5 page letter, click here.

SACRAMENTO BEE: California Attorney General Kamala Harris challenges Benicia oil plan

Repost from the Sacramento Bee

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
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)
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.”

New postings of individual comment letters

By Roger Straw, April 14, 2016

INFLUX OF IMPORTANT NEW LETTERS

[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]

MOST RECENT COMMENTS:

Recent expert and officials’ comments OPPOSING crude by rail:
Recent COMPOSITE public comments on the City’s website, including expert reports and public letters

City Council hearing – March 15, 2016