Kamala Harris: City has right to deny Crude By Rail project

  (Originally published in the 4/17/16 edition)

   For the past three years, Valero’s proposed Crude By Rail project- which would extend Union Pacific Railroad tracks onto the refinery’s property to deliver barrels of North American crude oil by train instead of by boat- has triggered a debate in Benicia and beyond. Several notable figures have given their opinions on the project, its most recent opposing statement being delivered by California Attorney General Kamala Harris regarding the city’s right to deny Valero a land use permit.

   Harris- who is also the Democratic frontrunner in the U.S. Senate race to succeed retiring Sen. Barbara Boxer (D-Ca)- had previously criticized the project in 2014 over what she saw as inadequacies in the Draft Environmental Impact Report. On Thursday, Harris submitted a letter to Principal Planner Amy Million authored by Deputy Attorney General Scott Lichtig. In the letter, Harris and Lichtig repeatedly noted that despite Valero’s assertion that the Interstate Commerce Commission Termination Act would prohibit the city from taking public safety risks into account in determining whether to approve or deny the project, both the Planning Commission and City Council have a right to deny the permit.

   “Due to these impacts, city staff has concluded that the project's benefits do not outweigh its significant and unavoidable environmental impacts,” Harris wrote.

   However, the letter also noted the argument of city staff that federal pre-emption would prohibit Benicia from considering rail-related impacts to make its decision. Harris did not agree with this notion.

   “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,” Harris wrote.

   Harris also noted that the most serious impacts of the project should not be ignored.

   “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,” she opined.

   Harris also noted that while a denial of the project would take away from potential economic advantages for Union Pacific, it would not hurt the company’s railroad operations.

   “Union Pacific has no vested right in the completion of Valero's Project, and denial of 

Valero's project would not prevent or unreasonably interfere with Union Pacific's rail operations,” the letter stated. 

   Harris concluded by stating that the city is permitted in taking discretionary action in determining its decision.

   “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,” she wrote. “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.”

   The letter drew praise from local environmental groups.

   “Attorney General Kamala Harris’ opinion vindicates what the Benicia Planning Commission, the people of Benicia, and our allies have always said -- that we have the local authority to deny this dangerous, unnecessary project,” Andres Soto of Benicians for a Safe and Healthy Community said. “This also clearly shows that Valero’s request for a delay was a distraction, designed to delay the inevitable vote to deny this project. We expect the Benicia City Council to now deny the continuance and uphold the Planning Commission’s decision to deny the project.”

   However, Valero employees did not agree with the letter.

   “We remain confident in our views related to the application of federal preemption in this matter,” Chris Howe, a director of Health, Safety, Environment and Government Affairs for Valero, said.

   City Council will be holding a Crude By Rail hearing at a special meeting at 7 p.m., Monday, April 18. The public is encouraged to deliver spoken comments at both this meeting and its regular meeting on Tuesday, April 19. The Council could be delivering a final vote at either meeting, so this is likely the final chance to have your voice heard on this subject. All meetings will take place in the Council Chambers at City hall, located at 250 E L St.