Court deals a blow to Kern County oil train terminal

June 27, 2017 8:44am

•  Says Air Pollution Control District approvals were in error

•  “We are pleased that the court recognized this blatant attempt to circumvent the environmental law”

The San Joaquin Valley Air Pollution Control District violated the California Environmental Quality Act when it approved permits for the Bakersfield Crude Terminal in Taft, the California 5th District Court of Appeal says in an unpublished ruling.

The Bakersfield Crude Terminal is the largest crude-by-rail terminal operating in California. Up to two 100-car trains per day can be processed by the terminal.

A lawsuit brought by community and environmental groups concerned about the risks of such a large terminal — and the movement of millions of barrels of oil through their communities — challenged the permitting process, which they say was conducted largely in secret.

A public records request revealed that Air District officials gave the terminal’s project manager advice about avoiding public noticing and pollution controls, says Earthjustice, the law group that argued the case against the terminal’s permitting.

The Air District approved the challenged permits including ones for needed sewers, under a “ministerial permit” process that allowed for no public scrutiny.

“We conclude that the issuance of the authority to construct permits for the sewer system was a discretionary act. Air District exercised its judgment when it conditionally approved the permits and imposed specific requirements that were not explicitly mandated by the applicable rules and statutes,” says the decision of the appellate court. “We therefore reverse the judgment and remand for further proceedings.”

The court’s decision, should it stand and not be reversed by the state Supreme Court, if the case were to be further appealed, tosses the Air District’s approvals.

“Based on our conclusion that Air District violated CEQA in determining the proposed sewer system project was ministerial and exempt from further CEQA review, it follows that the ministerial exemption determination must be voided. Accordingly, plaintiffs are entitled to the issuance of a writ of mandate requiring Air District to void that determination,” the Fresno-based Court of Appeal says.

“We are pleased that the court recognized this blatant attempt to circumvent the environmental law California passed to protect communities, and to allow them a voice in public decision-making,” says Elizabeth Forsyth, the Earthjustice attorney who has been working on this lawsuit since it was filed in 2015.

For now, however, the oil trains will still use the terminal as the appellate court is loath to halt its operations at this time.

But it is not hesitant to tell the lower court what to do.

“The superior court shall issue a writ of mandate that compels Air District to void or set aside its determination that the ministerial exemption applied to the proposed project … and to undertake and complete a preliminary review that complies with the requirements of CEQA,” says the 5th District Court of Appeal. “The superior court shall determine whether the writ of mandate includes provisions directing Air District (1) to void its decision to approve the permits authorizing the construction of the sewer system and (2) to suspend any or all specific project activity or activities pending Air District's compliance with the writ of mandate and CEQA.”

Earthjustice has been representing the Association of Irritated Residents (AIR), Stand, Sierra Club and the Center for Biological Diversity. Communities for a Better Environment brought suit as well.

Opponents of the crude oil terminal, which is in operation, contend that in addition to the emissions of volatile organic compounds from the off-loading of crude oil, the facility endangers Bakersfield and other communities in California by increasing the amount of crude transported by rail through the state.

There have been multiple accidents across the nation and in Canada where oil trains have derailed and exploded. One that derailed in Lac-Mégantic, Quebec, destroyed most of the town center, burning more than 30 buildings to the ground and killing 47 people.

“Permitting this enormous project behind closed doors kept the communities who will be at risk all along the rail lines from knowing the threats they suffered. We are pleased the court is shining a light on it,” says Andres Soto of Communities for a Better Environment.

"We are gravely concerned about the callousness shown towards public health by the air district's illegal actions in permitting this facility," adds Tom Frantz of the Association of Irritated Residents.

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