|Challengers to Chevron EIR Prevail in
May 20, 2009
Contra Costa Superior Court Judge Zuniga handed down a tentative ruling yesterday on the challenge to the EIR on the Chevron Energy and Hydrogen Renewal Project that sustained all of the contentions of the plaintiffs that the EIR was flawed. For background, see Opponents Sue Richmond, Chevron Over Plan to Replace Equipment at Refinery and September 4, 2008 Chevron Agreement Draws Lawsuit - But Not From Chevron, September 4, 2008.
According to the Court website: “The tentative ruling will become the Court's ruling unless by 4:00 p.m. of the court day preceding the hearing, counsel call the department rendering the decision to request argument and to specify what issues are to be argued. Calling counsel must advise all other affected counsel and unrepresented parties by no later than 4:00 p.m. of his or her decision to appear and of the issues to be argued. Failure to timely advise the Court and counsel will preclude counsel from arguing the matter.”
Presumably, final arguments will be made orally today, and the Court will issue a final ruling that may or may not alter the tentative ruling.
Following is the text of the tentative ruling:
18. TIME: 9:00 CASE#: MSN08-1429
CASE NAME: COMMUNITIES VS CITY OF RICHMON
HEARING ON PETITION FOR WRIT OF MANDATE ( COURT)
· TENTATIVE RULING: *
1. AN ACCURATE, STABLE AND FINITE PROJECT DESCRIPTION IS SINE QUA NON OF AN INFORMATIVE AND LEGALLY SUFFICIENT EIR. SEE COUNTY OF INYO V. CITY OF LOS ANGELES (1977) 71 CAL. APP. 3d 185, 199.
2. AN ACCURATE VIEW OF PROJECT ENABLES THE PUBLIC, INTERESTED PARTIES AND PUBLIC AGENCIES TO BALANCE PROPOSED PROJECT’S BENEFITS AGAINST ITS ENVIRONMENTAL COST, CONSIDER APPROPRIATE MITIGATION MEASURES, ASSESS ADVANTAGES OF TERMINATING PROPOSAL AND PROPERLY WEIGH OTHER ALTERNATIVES. SEE CITY OF SANTEE V. COUNTY OF SAN DIEGO (1989) 214 CAL . APP. 3d 1438, 1454.
3. IN INSTANT CASE, FEIR PROJECT DESCRIPTION IS UNCLEAR AND INCONSISTENT AS TO WHETHER PROJECT WILL OR WILL NOT ENABLE CHEVRON TO PROCESS A HEAVIER CRUDE SLATE THAN IT IS CURRENTLY PROCESSING.
a. FEIR’S REFERENCES TO “HISTORICALLY PROCESSED” SLATES IN 90’S AND CONTINUING MIX THAT REFINERY WAS “DESIGNED TO PROCESS” ARE VAGUE AND OBSCURE ISSUE OF WHETHER CHEVRON WILL BE ABLE TO PROCESS HEAVIER CRUDES THAN IT IS CURRENTLY PROCESSING. SEE AR 1570-1571; SAN JOAQUIN RAPTOR RESCUE CENTER V. COUNTY OF MERCED (2007) 149 CAL. APP. 4TH 645, 655-656.
1) FEIR’S REFERENCE AT AR 1570 TO MIX OF CRUDES THAT REFINERY IS “DESIGNED” TO PROCESS IS VAGUE AS IT DOES NOT STATE EXACTLY WHAT RANGE OF API GRAVITY THAT MIX OF INTERMEDIATE AND LIGHT CRUDES WOULD HAVE, OR WHETHER THE MIX THE REFINERY IS “DESIGNED” TO PROCESS IS HEAVIER THAN MIX REFINERY IS CURRENTLY PROCESSING.
2) FURTHERMORE, ENVIRONMENTAL SETTING AT TIME NOTICE OF PREPARATION WAS PUBLISHED WILL NORMALLY CONSTITUTE BASELINE PHYSICAL CONDITIONS BY WHICH A LEAD AGENCY DETERMINES WHETHER AN IMPACT IS SIGNIFICANT. SEE 14 CCR § 15125(a).
3) in this case, notice of preparation was published in july 2005. see ar 780-787. there is no explanation as to why pre-project baseline level for crude oil would encompass refinery operations in 90’s.
4) finally, eir states that “it is reasonably foreseeable that chevron would run a crude slate similar to that which is currently processed at the refinery – but in a mixture that has higher sulfur levels.” see ar 1575.
5) above statement would indicate that anticipated change in crude slate would be only its sulfur content, with no change to its density (heaviness), BUT QUALIFIERS “REASONABLY FORESEEABLE” AND “SIMILAR” DETRACT FROM ANY CERTAINTY THIS STATEMENT WOULD HAVE GENERATED.
6) COURT AGREES WITH CHEVRON THAT THERE IS NO NEED TO STATE A BASELINE IF OVERALL RANGE OF CRUDE SLATE WILL NOT CHANGE. hOWEVER, THAT DETERMINATION IS NOT POSSIBLE WITHOUT ANY DATA AS TO CURRENT CONDITIONS. A BASELINE DETERMINATION IS THE FIRST STEP IN ENVIRONMENTAL REVIEW PROCESS. SEE SAVE OUR PENINSULA COMMITTEE V. MONTEREY COUNTY BD. OF SUPERVISORS (2001) 87 CAL. APP. 4TH 99, 125.
b. ACCORDINGLY, FEIR, FAILS AS AN INFORMATIONAL DOCUMENT.
4. CITY HAS IMPROPERLY DEFERRED FORMULATION OF GREENHOUSE GAS MITIGATION MEASURES, BY SIMPLY REQUIRING CHEVRON TO PREPARE A MITIGATION PLAN AND SUBMIT IT TO CITY STAFF UP TO A YEAR AFTER APPROVAL OF CONDITIONAL USE PERMIT. SEE AR 1300-1302.
a. CITY DID IDENTIFY A STANDARD OF NO NET INCREASE IN GREENHOUSE GAS EMISSIONS, BUT IT DID NOT IDENTIFY ANY MEANS OF ACHIEVING THAT STANDARD. SEE AR 1300.
b. FORMULATION OF MITIGATION MEASURE SHOULD NOT BE DEFERRED UNTIL SOME FUTURE TIME. SEE CEQA GUIDELINES, 14 CCR § 15126.4, SUBD. (a)(10(B); gentry v. city of murrieta (1995) 36 cal. app. 4th 1359, 1394-1395.
5. city also engaged in “piece-mealing” project
a. CITY FAILED TO CONSIDER PRAXAIR HYDROGEN PIPELINES WHICH ARE PLANNED TO TRANSPORT EXCESS HYDROGEN GAS PRAXAIR WILL BE GENERATING AT ITS HYDROGEN PLANT, ONE OF 4 KEY COMPONENTS OF CHEVRON’S PROJECT. SEE AR 1183, 1190.
b. LAW IS CLEAR AN EIR MUST INCLUDE AN ANALYSIS OF ENVIRONMENTAL EFFECTS OF FUTURE EXPANSION OR OTHER ACTION IF (1) IT IS A REASONABLY FORESEEABLE CONSEQUENCE OF THE INITIAL PROJECT; AND (2) THE FUTURE EXPANSION OR ACTION WILL BE SIGNIFICANT IN THAT IT WILL LIKELY CHANGE THE SCOPE OR NATURE OF THE INITIAL PROJECT OR ITS ENVIRONMENTAL EFFECTS. SEE LAUREL HEIGHTS IMPROVEMENT ASSN V. REGENTS OF UNIVERSITY OF CALIFORNIA (1988) 47 CAL. 3d 376, 396.
c. WHEN ONE ACTIVITY IS AN INTEGRAL PART OF ANOTHER ACTIVITY, COMBINED ACTIVITIES ARE WITHIN SCOPE OF SAME CEQA PROJECT. SEE TUOLUMNE COUNTY CITIZENS FOR RESPONSIBLE GROWTH, INC. V. CITY OF SONORA (2007) 155 CAL. APP. 4TH 1214, 1224.
6. WITH RESPECT TO OTHER ISSUES RAISED BY PETITIONERS, GIVEN THAT EIR IS ALREADY IN NEED OF REVISION, ADDRESSING ADDITIONAL ISSUE SEEMS TO BE RATHER MOOT.
In other Chevron news, I have posted two documents received from Chevron recently involving community relations and Chevron charitable giving. See Mike Coyle Letter to the Community and Chevron Richmond Giving 2008. For additional information on these documents, contact: