Category Archives: Valero Benicia Refinery

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, EMC Research, Kari Birdseye, Legal action, Local elections, Research America, Valero Benicia Refinery

Push poll attorney’s preparatory posturing

[Editor – as expected and predicted, the push poll survey companies’ attorney claims it wasn’t a push poll, violated no laws, is protected by the US Constitution, and would cost Benicia a fortune to contest it in court.  Stay tuned, and continue to raise alarms about Valero’s secret dirty meddling in our election.  Content of the attorney’s letter is reproduced below, and downloadable as a PDF copy.  – R.S.]

Email from Benicia City Attorney Heather McLaughlin

Hi all!

Attached is the letter declining to provide the City with the requested information.  We have this items scheduled for Closed Session on Tuesday.

The letter is public information.

Thanks, Heather

KAUFMAN LEGAL GROUP
A PROFESSIONAL CORPORATION
777 S. Figueroa Street, Suite 4050 Los Angeles, CA 90017
main 213.452.6565   fax 213.452.6575   www.kaufmanlegalgroup.com

October 9,2018

Direct: (916) 498-7715

VIA U.S. MAIL & E-MAIL

Heather McLaughlin, City Attorney
City of Benicia
City Hall
250 East L. Street
Benicia, CA 94510

Re: Poll Conducted by EMC Research and Research America

Dear Ms. McLaughlin:

This letter is in response to your letter to Research America and EMC Research dated October 5, 2018. In that letter, you requested two items of information. First is a list of the polling questions used by the professional polling firms for the poll in question. Second is an “itemized invoice showing the dates, times and number of calls made.” You also requested that any future “push” polls that meet the definition of independent expenditure comply with Benicia City Chapters 1.32, 1.40 and 1.42.

As I mentioned in my October 1, 2018 letter to you, the public opinion research poll referenced in your e-mail was conducted by Research America and EMC in full compliance with applicable federal, state and local laws, which do not require campaign advertisement disclaimers on telephone polls. EMC Research and Research America are professional polling companies that conduct surveys based on scientific data and modeling to provide information to campaigns about voter preferences and attitudes. They do not engage in campaign advertising communication-which is exactly what so-called “push” polls are. Contrary to local press reports, the poll at issue was not a “push” poll.

Valero, although under no legal obligation to do so, has identified itself as the entity that commissioned the poll. The purpose of the poll was to gather feedback from local voters on issues relevant to the upcoming election. It involved a robust sample methodology, designed to achieve a random sampling of likely voters from within the City of Benicia. The survey was conducted September 6 through September 20, among a random selection of256 likely voters from within the City of Benicia. This period lies outside the 45-day period referenced in Benicia Municipal Code Chapter 1.40.041.

There are no federal, State or local laws that require disclaimers on polls, whether conducted telephonically or by electronic mail. As previously noted, a recent opinion issued by the California Fair Political Practices Commission (FPPC) at their September 2018 hearing confirmed this. I Polls are not considered campaign communications or “mass mailings” and, thus, do not require campaign advertising disclosures. The Benicia Municipal Code provisions referenced in your letter do not apply to polls. Those provisions, Chapters 1.36, 1.40 and 1.42, only apply to campaign communications. As the FPPC has opined, a poll is not a campaign communication.

Because the poll in question here was not a campaign communication, the professional polling companies are under no obligation to provide you with the information you requested. Polling questions and invoices for polls that show the date, time and number of calls made are confidential, and not subject to compelled governmental disclosure. While the City ordinance may regulate disclosures for campaign communications, they do not regulate polls. Nor should they as a matter of public policy. Polls are not conducted to influence voters; rather, they are targeted to a limited cross-section of voters to form as accurate a representation of the electorate as possible.

Further, the First Amendment of the United States Constitution protects the right of those who paid for the poll to engage in political discourse. Any restrictions on this right by government are examined under an exacting legal standard that prohibits government from passing laws that impermissibly restrict political speech without a showing of a compelling interest.2 Polls are an important part of the process of determining whether and how to potentially engage in political speech. Requiring public disclosure of poll funders, questions and other details impermissibly restricts the ability of individuals to engage in political speech and association. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (on petition for mandamus, blocking discovery order seeking to compel disclosure of internal campaign materials); In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 418 (D. Kans. 2009) (finding privilege against disclosure of internal communications regarding political activities).

This requested disclosure of information is particularly inappropriate where the City is making the request and the poll explored subject responses to statements regarding City Council candidates whose campaigns are being personally supported by current members of the Council. The City should not place itself in the position of immersing itself in the back and forth of electoral politics by attempting to force the public disclosure of confidential poll information. Nor should City resources be used to engage in these activities. These actions serve as a chill on free speech and association rights set forth in the Constitution.

For the above-listed reasons, Research America and EMC Research respectfully decline your request for further information regarding the poll. If the City chooses to issue a subpoena or take other legal action, the companies stand ready to vigorously defend their rights. Finally, since the two polling firms do not engage in campaign communications, we do not expect that any future polls will implicate the disclosure and disclaimer requirements of the Benicia Municipal Code. Please contact me immediately should you have any further questions.

Sincerely,

Gary S. Winuk

GSW:VCC

Air pollution, Air quality violations, Bay Area Air Quality Management District (BAAQMD), Valero Benicia Refinery

Valero to pay huge fines – again – for air quality violations

Repost from the Vallejo Times-Herald
[Editor: These fines are routinely written off by giant Valero as a cost of doing business.  Examples from recent years: Valero Benicia Refinery fined $122,500 in 2016.  And fined $183,000 in 2014.  IMPORTANT: Benicia Mayor Patterson and residents have repeatedly petitioned the Bay Area Air District to channel at least SOME of these fines to the affected community.  The District has suggested responsiveness, but failed to engage meaningfully.  Again in today’s news, the District will keep the fines for its own use, leaving the polluted community adrift in the wind (as it were).  – R.S.]

Valero paying $266,000 for air quality violation

By John Glidden, October 10, 2018 5:45 pm | UPDATED: 7:38 pm
A photo of the Valero Benicia Refinery taken at night in May 2014.

BENICIA — Valero Refining Co. will pay $266,000 to settle 22 air quality violations that took place mostly in 2016 at the Valero Benicia Refinery, the Bay Area Air Quality Management District (BAAQMD) announced this week.

“This settlement helps to ensure that Valero remains vigilant in running its operations according to all air quality regulations,” said Jack Broadbent, executive officer of BAAQMD, in a district news release. “Our air district enforcement and source testing teams, together with a variety of other tools are in place to ensure refineries comply with their permits.”

Eleven of the violations were for exceeding emission limits, with nine of them being detected by monitors which measure emissions from refinery equipment, the air district said in a news release. Officials said the other two violations were discovered by a source test conducted by the facility’s contractor and by a BAAQMD inspector.

Seven additional violations were recorded for hydrocarbon leaks from storage tanks or lines, while two violations were given because there were errors in an inspection database which resulted in missed leak inspections for valves omitted from the database, officials explained in the same release.

Single violations were assessed for a missed calibration on an emissions monitor and a failed monitor accuracy test, officials said.

The Air District said in the same release that violators must respond to a violation notice within ten days and further submit a detailed description of what actions they will take to correct the problem.

Officials said the settlement funds will be by the air district to fund future inspection and enforcement activities.

A representative with Valero couldn’t be reached for comment prior to press deadline.

"Push poll", Benicia City Attorney Heather McLaughlin, EMC Research, Kari Birdseye, Legal action, Lionel Largaespada, Local elections, Local Regulation, Research America, Steve Young, Tom Campbell, Valero Benicia Refinery

Campbell wanted to sue immediately over push poll; Largaespada defends himself

Repost from the Vallejo Times-Herald
[BenIndy Editor: I believe that no current Benicia City Council candidate was involved in nor favors push polls. But the reason for Valero to smear one candidate and lift another is clear. Valero can’t be unaware that Mr. Largaespada stood firm with Valero and against the will of the people during the controversial Crude by Rail debate in 2014-16. Planning Commissioner Kari Birdseye voted with the unanimous decision to stop Valero “in its tracks.” Valero has every reason – and every right – to openly and fairly voice its preference. But to secretly fund dirty tricks to achieve its goal is a tactic that should be soundly criticized by all candidates. I’ll vote for Birdseye, and hope that our next Council will include 3 women for the first time ever.  – RS]

Campbell sought tougher response to push poll incident

By John Glidden, October 8, 2018 at 5:51 pm
Tom Campbell

BENICIA — Days after the Benicia City Council met in closed session directing City Attorney Heather Mc Laughlin to seek answers about a controversial polling incident, speculation swirled on which councilor voted against the move.

Councilman Tom Campbell confirmed he was the lone “no” vote in the Oct. 2 closed session decision.

“I wanted a stronger response than the rest of the council members wanted,” Campbell explained in an email to the Times-Herald.

The City Council authorized Mc Laughlin to contact Research America and EMC Research about their respective roles in a series of phone calls made to residents in September. Research America conducted the polling, which included questions about the city’s current council candidates.

The polling firm said EMC hired them, and just last week, Mc Laughlin confirmed that the Valero Benicia Refinery sponsored the entire polling.

Steve Young

Vice Mayor Steve Young, and other residents, have stated they received one of the survey calls which allegedly smeared council candidate Kari Birdseye while championing fellow council candidate Lionel Largaespada. Young called the survey a “push poll,” a type of survey meant to influence voters instead of gathering objective survey information from those called.

Councilors expressed concern that since the survey calls didn’t provide a “paid for by” disclaimer at the end of the phone calls the survey may have violated the city’s municipal code. A claim the polling firms have denied through their lawyer.

Campbell, who led the charge for the present campaigning ordinance in the municipal code, said he wanted immediate action in response to the poll.

“What I wanted was that the council authorize the city attorney to immediately go to Superior Court, file an injunction/lawsuit against the pollster and subpoena the records from EMC on who paid for it, how much, and what the exact questions were,” Campbell wrote in the same email. “The council took a little softer line than I wanted. I felt we had to act now to obtain the information as quickly as possible before the Nov. election.”

Lionel Largaespada

Largaespada issued a statement on Sunday in response to the news that Valero paid for the polling.

“I was very disappointed to learn that Valero sponsored the recent polling in Benicia,” he wrote in an email to this newspaper. “As I previously stated, I was not involved in any way with this polling effort, and I did not know who was conducting it.

“As I also stated, push polling, or any misrepresentation of a candidate’s stance or ideals is not something that I support in any way,” he added. “I hope that Valero will provide the content of the poll so that this issue can be resolved.”

Largaespada, who has expressed support in the past for the “crude by rail” initiative, also defended himself from comments made online by residents.

“To the commenters on Nextdoor that have suggested that I am in favor of this type of tactic, or that I am a ‘tool’ or ‘mouthpiece’ for Valero — these comments are completely false and without merit,” he wrote. “I understand that issues involving Valero are polarizing in our community, but to say that because someone believes differently than you do about an issue makes them a ‘tool’ for an entity is nothing more than name-calling.”

Mc Laughlin was also tasked by the council to obtaining a copy of the poll questions. In a letter she sent Research America, and EMC, last Friday, she gave them 72 hours to send a copy of the questions to her office.

Mc Laughlin said she didn’t have a copy of the poll questions as of Monday afternoon and was told she would get a response to her request on Wednesday.

Benicia Mayor Elizabeth Patterson, Carbon neutral, Oil Industry, Valero Benicia Refinery

Mayor Patterson: Benicia needs to plan for the declining role of oil and gas

An E-Alert from Mayor Elizabeth Patterson
[Editor: Mayor Patterson has been falsely accused of wanting to run Valero Refinery out of town.  A careful reading of her position shows that she wants the City to plan jointly with Valero and economic advisers for a stable future as we face into the predicted and inevitable decline in carbon-intensive industries.  Other California cities are planning ahead.  Patterson urges Benicia to do the same.  See below.  – R.S.]

New state laws’ and policies’ impacts on Benicia’s future

By Mayor Elizabeth Patterson, Benicia, California, October 2, 2018
Elizabeth Patterson, Benicia Mayor 2007 - present
Elizabeth Patterson, Benicia Mayor 2007 – present

Does the city monitor economic trends to forecast the future revenue necessary to operate city services of public safety, road maintenance, safe drinking water, parks and recreation, library and community services?  To some extent, yes.  To the extent that there is an understanding of shifting economic activity such as declining role of oil and gas, no.  We have not done an in depth analysis of the impact of state policies and the law to achieve carbon neutrality by 2045.

Brown is calling for the entire California economy to become carbon-neutral by 2045. That would mean deploying a combination of new technologies to vastly reduce the release of carbon dioxide and other greenhouse gases, plus the widespread implementation of methods to capture the rest, so that the state’s net release of emissions already altering the climate in devastating ways would be zero.  [from KQED, Sept. 24, 2018]

What are the opportunities for the city to benefit from this carbon-neutral goal?  Should there be a working group with the city, Valero Refinery, economists and planners to think about 20 years from now?

What are other cities and counties doing to achieve carbon-neutrality?  Will we be on the leading edge or play catch up?  I will continue to advocate for thinking beyond tomorrow and seizing opportunities for Benicia’s economy to evolve for the future so that we continue to have what I think is the best small town in California.

Below is an article about what San Luis Obispo is doing to meet the challenge of carbon-neutrality by 2045.

Elizabeth Patterson, Mayor, City of Benicia

SLO wants to be carbon neutral by 2035, ahead of California

The Tribune, sanluisobispo.com, by Nick Wilson, September 25, 2018 03:06 PM

The City Council wants San Luis Obispo to be carbon-neutral by 2035, an ambitious target that’s 10 years earlier than Gov. Jerry Brown’s statewide goal of 2045.

The council last week directed staff to move forward with a climate action plan that could mean new building codes and ramping up citywide electrical vehicle charging stations, among several other initiatives.

Carbon neutrality, or net-zero energy, is the concept of reducing as much carbon dioxide and other greenhouse gases from the atmosphere as possible, with the overall goal to achieve a zero carbon footprint. It is achieved largely by replacing fossil fuel energy sources that emit greenhouse gases with renewables like solar and wind.

Greenhouse gases are emitted from cars, homes and businesses, as well as from livestock, among other sources.

An example of an electric vehicle charging station designed by Recargo, a Los Angeles-area company that’s planning to build four new DC fast-chargers in San Luis Obispo.

“This is aggressive,” said Councilwoman Andy Pease. “It’s a really big goal. I think we can do it. But I think it should be a goal within our Climate Action Plan development.”

The specifics of the city’s Net Zero 2035 commitment haven’t been formulated yet, pending the Climate Action Plan update next year.

But efforts undertaken by the city already have reduced greenhouse gas emissions in the city by 10 percent since 2005, with a goal of reaching a 15 percent reduction by 2020.

Ideas to further reduce greenhouse gas emissions, based on California Energy Commission recommendations, include:

▪ Reducing solid waste (including making sure people recycle and reuse items they consume, and compost food scraps), eliminating the need for landfills;

▪ Using carbon-free electricity, while transitioning from fossil-fuel based appliances and technologies (such as phasing out internal combustion-based vehicles in place of electric ones, and ratcheting down natural gas-fired furnaces or water heaters in favor of high-efficiency heat pump models that run on clean electricity, for example);

▪ Creating new laws around building codes to ensure efficient, clean energy uses rather than natural gas ones (pending legal and practical study of that possibility to be reconsidered by the council in 2019);

▪ Finding ways to attain carbon sequestration, meaning strategies to manage city forests that convert carbon dioxide into nutritional benefits for tree growth, and other means;

▪ Encouraging efficient use of water and cars (walking and biking whenever possible, versus driving, for example).

Despite its commitment, the council will wait until its Climate Action Plan Update next year to formally decide on the 2035 goal, but it’s united in trying to implement policy to set that timeline in motion, which council members acknowledge is ambitious.

The council was divided on whether to adopt a formal resolution to set the 2035 Net Zero target – immediately creating a formal policy directive to work from, rather than waiting to formalize that goal after more research on how it would affect city residents, builders, existing policy, land use and other considerations.

Mayor Heidi Harmon argued in favor of adopting a resolution, saying that a formal, “bold” statement targeting a 2035 Net Zero goal could make it harder for a potentially new council, after this November’s election, to roll back that policy.

“I think this is so important, and I know how tough culture shift is,” Harmon said. “But this is one of the main reasons I got elected was to be a champion on climate and have real, actionable things that we’re doing.”

But Councilwoman Carlyn Christianson said that an “action plan” will better inform the council before it signs off on a 2035 policy.

“There are large numbers of people who emotionally react one way or another on these issues,” Christianson said. “We need to know exactly what we’re talking about, and we kind of don’t (without further staff research).”