Repost from The San Francisco Chronicle [Editor: Minor correction – the legal opinion that would muzzle the Mayor was written by an outside contract attorney, not by City Attorney McLaughlin. That said, Mayor Patterson has stated publicly that the city attorney has advised her not to participate “in any way in any city decisions” relating to Valero’s pending permit decision, and to refrain from sending out “e-alerts” about the project and related crude-by-rail issues and to not engage in public discussion of the matter. UPDATE: late on Nov 18, the Benicia City Council voted unanimously to waive attorney-client privilege in order to make the opinion available to the public. Download: Jenkins Opinion Re Mayor Patterson-Valero Project. Download: Mayor Patterson’s attorney, Diane Fishburn’s opinion, and Fishburn’s letter to the City Attorney. – RS]
Mayor muzzled from speaking about crude by rail
By Lois Kazakoff on November 18, 2014
Opponents in the national debate over climate change will enter the ring tonight in the City Council Chambers of the small riverside city of Benicia (Solano County). City Attorney Heather McLaughlin has thrown down the gantlet with this small item on the City Council agenda.
CONSIDERATION OF WAIVING THE ATTORNEY-CLIENT PRIVILEGE FOR THE OPINION REGARDING MAYOR PATTERSON AND THE CRUDE BY RAIL PROJECT. (City Attorney)
Buried in the legal language is a debate over Mayor Elizabeth Patterson’s First Amendment Right to communicate with the citizens of Benicia about Valero’s pending land use application to modify its refinery to receive crude by rail rather than crude by tanker ship. At stake is a robust democratic discussion over a decision that will affect not just Benicia but every community on the rail line between the Bakken Oil Shale fields in Montana and the Dakotas and Valero’s Benicia refinery.
McLaughlin has written a confidential opinion on the mayor and the crude by rail project. It is her view that she cannot release the document unless the majority of the five-member City Council waives the attorney-client privilege by which she is bound. “At least three have to decide to make the opinion public,” she told me.
Benicia is a town of 28,000. Valero is its largest taxpayer and a significant presence in the community. Beyond the smokestacks and coolers visible from I-680, the refinery’s footprint is visible downtown and throughout the city. As part of a decade-old legal settlement, the city received $15 million from Valero that it has used to fund median landscaping projects, community gardens, education programs, water audits for homes and construction of community center with sustainable building materials. But should a mayor or any other elected official be kept from speaking about a corporation with a large influence in the town they lead?
Early this summer, when the city attorney advised the mayor that she should not send e-mail “e-alerts” to her constituents about Valero’s pending environmental impact report so as not to give an appearance of bias, Patterson hired an attorney. In a letter, the law firm wrote that the mayor did not have a disqualifying conflict of interest in the Valero matter. And further, quoting state law, “As a public official you certainly not only have ‘a right but an obligation to discuss issues of vital concern’ to your constituents and to state your ‘views on matters of public importance’.”
Patterson has told me, “The Valero project has broad issues and concerns. I was elected by people who know that I had knowledge of these concerns. I’ve campaigned on that, I’ve written on that. My constituents expect me to represent them.”
And she should. And the city is wrong to try to muzzle the mayor.
Repost from The Benicia Herald [Editor: After a new list was compiled, the number of signatures as of October 29 was found to be approaching 1,300. To add your name, go to SafeBenicia.org. – RS]
Petitioners seek more support at final farmer’s market
Opponents of the Valero Crude-by-Rail Project say they have gathered more than 1,000 signatures on a petition against the refinery’s application and plan to return Thursday to the Benicia Certified Farmers Market in hopes of gathering more names.
Pat Toth-Smith, a member of Benicians for a Safe and Healthy Community, said the organization has been staffing a table at the market since it opened in spring, and members will be doing the same thing Thursday that they have all season long.
“More people are finding out about this issue, and people want more information,” she said.
Toth-Smith said the organization’s petition “is basic.”
She said it asks that the undersigned be counted as opposing the shipment either of sweet Bakken shale crude or sour Canadian tar sands oil by train into Benicia, the Bay Area or communities along rail lines both before and after Benicia.
She said the petition also cites as concerns derailments, fires and explosions associated with increased crude oil rail traffic.
Project supporters have been collecting signatures of their own, too, and have delivered them, 100 or more at a time, during city public meetings. Requests to contribute to this story weren’t answered by press time.
Valero Benicia Refinery applied early in 2013 to extend existing Union Pacific Railroad tracks into its property, in addition to other infrastructure changes, so the refinery could substitute delivery of crude oil by train for the equivalent of oil currently brought in by transoceanic tanker ship.
The refinery has said in statements supported by a Draft Environmental Impact Report (DEIR) that bringing the oil by rail would reduce greenhouse gas emissions in the Bay Area because any emissions released by trains would be more than compensated by reduction in emissions from those ships.
But opponents worry that gases emitted uprail of Benicia wouldn’t have the offsetting benefits, and have cited explosions and fires associated with derailments as more crude is delivered from North American sources by rail.
The city agreed last year with those who said a mitigated negative declaration would be an insufficient environmental document under the California Environmental Quality Act, and ordered the more extensive analysis, the Environmental Impact Report. A draft of that report was issued in June and has been circulated for public evaluation.
The city Planning Commission had three lengthy hearings during which more public comment was accepted, and after the panel extended the deadline for comments California Attorney General Kamala Harris also weighed in, criticizing the DEIR.
Responses to public comments are being written before the city releases the final environmental report for a vote on its certification as well as the refinery’s use permit request.
Despite coverage of several Bay Area marches against crude-by-rail projects, public meetings by proponents and opponents and Benicia’s own hearings on the project, Toth-Smith said at each farmers market day someone has approached members of Benicians for a Safe and Healthy Community to say they hadn’t heard of the proposal.
However, she said, more residents are noticing both pro and con yard signs.
“People in Benicia are very smart and well-educated, and they know what they want to do,” she said. “Some people are cautious. They peruse everything they can. People take the process seriously, and I’m thrilled. It’s important people explore everything. People love Benicia and want it to stay like it is. That’s the main worry.”
She insisted that objections to the project didn’t mean opponents don’t like Valero.
“It’s about the transportation,” she said. “Valero is a good neighbor.”
Andres Soto, another member of the local organization, agreed that transport by rail is the main concern. But he also said there are problems with the DEIR.
“Some are demanding recirculation (of the document),” he said. “They must see their ship is on the rocks.”
He said the group’s table at the farmers market has been important for reaching out to Benicians, who make up the bulk of the signatures the petition has gathered. He said he sees the petition “as a barometer of sentiment of the Benicia community.”
Soto said his organization is distributing yard signs and keeping a tally of those he said were stolen by project supporters — more than 35 so far.
He noted that the Planning Commission hearings on the DEIR drew so many people that the Council Chamber at City Hall was full, and overflow seating had to be arranged in the building’s outdoor patio, Commission Room and conference rooms.
If 300 show up at one of those meetings, “that’s a lot of people,” he said. But 300 is a tenth of a percent of the city’s nearly 30,000 residents.
Soto said there are some residents “who don’t know; they’re not really plugged in.” That’s one of the reasons his organization will keep up its petition campaign after the farmers market concludes its season. Thursday’s market is the last until spring.
“What’s important to Benicia people is if there is a catastrophic event, who is on the hook for the toxic cleanup?” he said. They also want to know who would be responsible for the economic impact of an explosive derailment, or how it would affect the value of their homes.
High school students also have signed the petition, telling him they’re concerned about global warming and the environmental impact of production of both Bakken and tar sands crude.
He said he objects to those who are trying to use “scare tactics” such as suggesting the refinery might leave if the project isn’t approved, “especially after Attorney General Kamala Harris’s letter” in which she pointed out what she considers deficiencies in the document.
“People who wrote the draft EIR did a shabby, shabby job,” Soto said.
Repost from The Vallejo Times-Herald [Editor: Jan Cox Golovich is a former Benicia City Councilmember. – RS]
Jan Cox Golovich: Benicia’s big problem
Vallejo Times-Herald, 10/24/2014
Behind closed doors, the Benicia City Attorney and certain members of the city council have attempted and failed to strip the mayor of her First Amendment right of free speech. Even though they refuse to identify themselves to the public, the council members have revealed their desperation to salvage Valero’s doomed and dangerous Crude By Rail project.
The city attorney has a much bigger problem— the State Attorney General has called out the city for the legal inadequacy of Valero’s Crude by Rail Draft Environmental Impact Report (DEIR). Lined up behind the state is a long list of other public agencies, NGO’s and community groups ready to humiliate the city in court should it dare certify the document without major revisions and recirculation.
A competent city attorney, acting in the public interest, would extricate us from this legal dilemma by withdrawing the currently flawed DEIR and defend freedom of speech with all her might.
Jan Cox Golovich/Former member Benicia City Council
Benicia sees cash in crude oil; neighbors see catastrophe
By Jaxon Van Derbeken, October 23, 2014
Ed Ruszel and his family own a woodworking business that fronts the railroad tracks next to the Valero refinery in Benicia where the crude oil would be delivered. | Lea Suzuki / The Chronicle
A plan to bring tank-car trains filled with crude oil from Canada and North Dakota to a Benicia refinery is pitting the Solano County town against Northern California neighbors who say they will be burdened with the risk of environmental catastrophe.
Benicia officials must decide whether to approve a draft environmental impact report on a $70million terminal at Valero Corp.’s refinery near Interstate 680, where two 50-car oil trains a day would deliver crude.
Supporters and the company say California consumers stand to benefit: With no major oil pipelines running to the West Coast and marine transport both costly and potentially hazardous, they say, rail is the best way to keep local gasoline prices low.
“Right now, that refinery relies on more expensive crude from Alaska,” said Bill Day, spokesman for Valero. “Rail is the quickest, most efficient and safest way of delivery.”
Benicia’s environmental study weighing the risks of the project, however, has done nothing to assuage critics who say the city is downplaying the dangers of delivering oil by rail.
Crude from North Dakota shale is extra-volatile, they say, and the city’s environmental report assessed only the chances of a spill along the 69 miles of track from the Sacramento suburbs to Benicia — not the chance of a catastrophic explosion, or the possibility of an accident of any kind along the more than 1,000 additional miles the trains would have to travel to reach the shores of the Carquinez Strait.
“This project is not in our region — it is outside of our region — but the impacts on the 2.3million people who live here we view as very significant, very troublesome, very disturbing,” said Don Saylor, chairman of the Yolo County Board of Supervisors and vice chairman of the Sacramento Area Council of Governments, which represents 22 cities and six counties through which the oil trains could travel.
‘A street fight’
Benicia itself is divided by the proposed project. Some locals worry about the environmental risks and traffic problems, while others tout the benefits of low-cost crude to Valero — a company that accounts for a quarter of the city’s tax revenue.
Benicia Mayor Elizabeth Patterson hasn’t taken a stand on the Valero oil-trains terminal, but says, “We need to make sure that just because one industry wants to do something, we don’t ignore the adverse impact to the other businesses and the community.” | Lea Suzuki / The Chronicle
“This is going to be a street fight,” said oil-train opponent Ed Ruszel, whose family woodworking business fronts the railroad tracks next to the refinery. “They have to come across my driveway every day — we’re at ground zero.”
The issue is so contentious that the city attorney recently told Mayor Elizabeth Patterson to stop sending out e-mail alerts about city meetings regarding the oil-train project. According to Patterson, the city attorney warned that her activism could open Benicia’s final decision to legal challenge.
Patterson said she has not taken a stand on the Valero terminal, but that “we need to make sure that just because one industry wants to do something, we don’t ignore the adverse impact to the other businesses and the community.”
She called City Attorney Heather Mc Laughlin’s warning “a blatant effort to muzzle me.” Mc Laughlin did not respond to a request for comment.
Canadian disaster
For Ruszel and other critics of the project, the danger is real. They cite several recent oil-by-rail explosions, including the derailment of a 72-car train that killed 47 people and wiped out much of the town of Lac-Mégantic in Quebec in July 2013.
The Valero refinery in Benicia wants to build a rail terminal where crude oil could be delivered by trains. | Lea Suzuki / The Chronicle
The Valero-bound trains would pass through Sacramento, Davis and Fairfield, among other cities, en route to Benicia. Those cities have voiced concerns about the terminal, where trains would deliver a total of 2.9million gallons a day of shale oil and tar sands.
“We have lots of support here from our own local people,” said project critic Marilyn Bardet of Benicia, “but the real difference is that there are so many agencies and people from up rail looking at this problem. We feel exonerated — everybody has chimed in and agreed with us.”
Not everyone along the rail line is against the idea, however. State Sen. Ted Gaines, a Republican who represents Rocklin (Placer County) and is running for state insurance commissioner, called the project “beneficial environmentally and economically.”
It “can be done safely given the prevention, preparedness and response measures in place by both Valero and Union Pacific Railroad,” Gaines said.
Setting precedents
The Benicia battle will probably be a preview of numerous local fights over oil trains in California. Oil-by-rail shipments jumped from 1million barrels in 2012 to 6.3million barrels in 2013, according to government estimates. By 2016, the state could be awash with 150million rail-shipped barrels of crude a year.
What Benicia does could influence how future oil-train plans play out. Several cities have called on Benicia to require that all train tanker cars have reinforced walls and be better controlled by new, electronically activated braking systems, and that officials restrict what kind of oil can be shipped to Valero.
Such efforts, however, could run afoul of federal law that preempts states and local governments from setting standards on rail lines. Valero has already warned city officials that it may “invoke the full scope of federal preemption,” a thinly veiled threat to sue if Benicia imposes too many restrictions.
Much of the crude that would arrive via train at Valero is expected to come from the Bakken shale formation in North Dakota. Federal transportation officials recently deemed Bakken crude to be an “imminent hazard” because it is far more easily ignitable than more stable grades of crude previously shipped by rail.
In issuing an alert in May, federal transportation officials warned that oil trains with more than 20 cars are at the highest risk because they are heavier than typical cargo and thus more difficult to control. The federal government is considering requiring additional reinforcement of tanker cars and more robust braking systems.
The federal alert about the danger of crude by rail comes as accidents have skyrocketed, with nine major explosions nationwide since the start of 2013. Last year alone, trains spilled more than 1million gallons of crude in the United States — 72 percent more than the entire amount spilled in the previous four decades combined, California officials say.
The consultants who wrote Benicia’s draft environmental impact study concluded that because the type of crude that would be brought to Valero is a trade secret, they could not factor it into their risk assessment. They calculated that a major spill on the 69 miles of track between Roseville (Placer County) and Benicia could be expected roughly once every 111 years.
Among those who think Benicia needs to take a harder look is state Attorney General Kamala Harris, whose office wrote a letter challenging the environmental impact report this month.
Harris’ office says the report’s authors assumed that the safest rail cars available would be used, disregarded spills of fewer than 100 gallons in determining the likelihood of accidents and, in looking only as far as Roseville, ignored 125 miles of routes north and east of the Sierra foothills town.
Some possible routes go through treacherous mountain passes that historically have seen more accidents, say oil-train skeptics. While not specifically mentioning a legal challenge, Harris’ office called Benicia’s study deficient and said it ignored the “serious, potentially catastrophic, impacts” of an accident.
Not her call
Valero says Harris can voice all the objections she wants, but that she doesn’t get a say on whether the terminal will be built.
“This is really the city of Benicia’s decision,” said Day, the company spokesman. The attorney general and others, he said, are “free to file comments” on the environmental report.
He added that “all the crude oil that Valero ships will be in the newest rail cars, which meet or exceed rail safety specifications.”
“Rail companies have products moving on the rails every day that are flammable,” Day said. “The overwhelming majority of everything transported gets there safely, on time, with no incidents.”
Benicia’s City Council now has to decide whether to order to certify the draft study, order it revised or reject it entirely. When that decision comes, Benicia will be getting a lot of out-of-town attention.
“We have near-unanimity in our region to address the safety issues of the crude-oil shipments by rail,” said Saylor, the Yolo County supervisor. “For us, it has been strictly about public safety. It’s a high-risk operation — we have no choice but to take on this issue.”
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