Repost from the Sacramento Bee

California Attorney General Kamala Harris challenges Benicia oil plan

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’

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.

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.”