17 Cal. App. 5th 708
Cal. Ct. App. 5th2017Background
- Alon proposed modifying its Bakersfield refinery to add on-site unit-train unloading (two unit trains/day; up to 150,000 barrels/day unloaded) while keeping refinery processing capacity at 70,000 bpd; excess crude would be piped to other refineries.
- County of Kern prepared and certified an EIR; notice of preparation issued Sept. 19, 2013; draft EIR circulated May–July 2014; Board certified final EIR and approved the project Sept. 2014.
- Plaintiffs (Association of Irritated Residents, Center for Biological Diversity, Sierra Club) sued under CEQA alleging: improper baseline (used 2007 operations rather than 2013), unlawful treatment of GHG impacts via cap-and-trade, and inadequate analysis of rail-transport risks including off-site/mainline impacts.
- Trial court denied writ; appellate court reverses in part and remands, finding some CEQA compliance and some legal and factual errors in the EIR that require correction.
- Court upheld 2007 operating-year baseline as supported by substantial evidence and consistent with Communities for a Better Environment where baseline may reflect historical fluctuating operations.
- Court concluded County permissibly relied on CARB’s cap‑and‑trade program under Guidelines §15064.4(b)(3) to support a less‑than‑significant GHG finding, but found errors and omissions in the rail-safety and preemption analysis that prejudicially impaired the EIR.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper baseline for air-emissions analysis | County should use conditions at NOP (2013); using 2007 understates impacts | 2007 reflects operating refinery history and avoids conflating project changes with existing permitted operations | Use of 2007 baseline upheld: supported by substantial evidence and permissible where operations fluctuate (Communities for a Better Environment governs) |
| Use of cap‑and‑trade in GHG significance analysis | Allowances don’t reduce actual emissions; relying on cap‑and‑trade to show less‑than‑significant is legally erroneous/misleading | Guidelines §15064.4(b)(3) directs consideration of compliance with statewide programs; cap‑and‑trade is such a program and may inform significance | County may consider compliance with cap‑and‑trade; EIR’s GHG disclosure not misleading and reliance on compliance to find less‑than‑significant was proper |
| Accuracy of rail accident/risk data | EIR underestimates derailment/release risk and fails to analyze off‑site impacts | EIR addressed rail safety and asserted preemption limits mitigation/analysis | EIR misused federal rail data (overlooked distinction between incidents and accidents), underestimating release risk fivefold; this was prejudicial and must be corrected |
| Federal preemption (ICCTA) and CEQA review of off‑site/mainline rail impacts | ICCTA does not categorically preempt CEQA disclosure/analysis of reasonably foreseeable off‑site rail environmental effects | County contends ICCTA preempts some CEQA mitigation and possibly informational aspects | CEQA informational analysis is not categorically preempted; ICCTA may preempt certain mitigation measures as‑applied, but EIR erred in stating ICCTA preempted CEQA review of unit‑train movements — EIR must analyze off‑site impacts and then determine feasible, non‑preempted mitigation on remand |
Key Cases Cited
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (Cal. 2010) (baseline for refinery projects must generally reflect actual existing conditions, not maximum permitted capacity)
- Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal.4th 439 (Cal. 2013) (strict justification required to use projected future conditions as the sole baseline)
- Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (Cal. 2015) (CEQA/GHG analysis principles; global nature of climate impacts complicates project‑level significance determinations)
- Cleveland Nat’l Forest Foundation v. San Diego Assn. of Gov’ts, 3 Cal.5th 497 (Cal. 2017) (overview of California GHG regulatory context and CEQA guidance)
- Friends of Eel River v. North Coast Railroad Authority, 3 Cal.5th 677 (Cal. 2017) (ICCTA preemption framework and limits on state/local regulation of rail transportation)
- Wal‑Mart Stores, Inc. v. City of Turlock, 138 Cal.App.4th 273 (Cal. Ct. App. 2006) (baseline comparison concept: differences between existing and project conditions define environmental change)