Assn. of Irritated Residents v. Kern County Board etc.
F073892
| Cal. Ct. App. | Nov 21, 2017Background
- Kern County certified an EIR and approved Alon USA’s Bakersfield Refinery Crude Flexibility Project to add on-site rail unloading (two unit trains/day; up to 150,000 barrels/day unloaded; refinery processing capacity remains 70,000 bpd). Draft NOP issued Sept. 19, 2013; final EIR certified Sept. 2014; petition filed Oct. 2014.
- Plaintiffs (environmental groups) claimed CEQA violations: improper baseline (used 2007 operational data rather than conditions at NOP), improper treatment of greenhouse gas (GHG) significance via cap‑and‑trade, understating rail-transport risks (hazmat release probability), and unlawfully declining to analyze off‑site/mainline rail impacts due to asserted federal preemption.
- EIR used 2007 throughput data (60,389 bpd) as the “operating refinery” baseline although refinery operations had fluctuated and had been shut down in 2009–2010; County stated it adjusted 2013 conditions to reflect operating status using 2007 data.
- For GHGs, the EIR quantified project emissions, then applied compliance instruments (allowances/offsets under California cap‑and‑trade) and other reductions (e.g., displaced truck trips) to conclude impacts were less than significant.
- For rail safety, the EIR misused FRA data: it labeled/used the 10‑year total “accidents/incidents” figure as the number of “train accidents,” producing an underestimated probability (0.22%) that a train accident would cause a hazardous‑materials release; correct data produce ~1.13% per accident and a release ~once every 29–30 years (rather than 150).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Baseline for air‑quality impacts | County improperly deviated from Guidelines §15125(a) by using 2007 operational throughput instead of conditions at the NOP (2013); deviation understates impacts. | County argues history of fluctuating operations made a 2007 operating year a realistic, conservative measure supported by evidence and prior CEQA reviews. | Court: upheld County’s baseline choice. Substantial evidence supports using 2007 as a realistic measure of existing operating conditions; Communities for a Better Environment permits such measurement where operations fluctuate. |
| GHG significance & cap‑and‑trade | Cap‑and‑trade allowances authorize emissions and do not reduce molecules emitted; EIR’s use of allowances to show net reductions is legally erroneous/misleading. | County: Guidelines §15064.4(b)(3) directs consideration of compliance with statewide regulations (including cap‑and‑trade); compliance may support a less‑than‑significant finding. | Court: EIR disclosure not misleading in context; cap‑and‑trade qualifies as regulations implementing a statewide plan and County permissibly relied on project compliance (including surrender of compliance instruments) as part of the significance determination. |
| Rail safety probability calculation | EIR misused FRA data (used total accidents/incidents as train accidents), thus understating hazardous‑materials release risk and violating CEQA disclosure/analysis duties. | County: contends methodological choice or alternative interpretation; argues record contains the statistics and commenters were on notice. | Court: factual error established. EIR mislabelled FRA figures; error understates release risk about fivefold. This was prejudicial and must be corrected. |
| Federal preemption and off‑site/mainline rail impacts | ICCTA does not categorically preempt CEQA disclosure/analysis of reasonably foreseeable indirect environmental effects of mainline rail movements; County erred by omitting off‑site pollutant analysis and claiming blanket preemption. | County: contends ICCTA preempts mitigation/regulation of mainline rail operations and thus limited CEQA’s reach; also argues disclosure/analysis occurred. | Court: legal error. ICCTA does not categorically bar CEQA disclosure/analysis of indirect effects; some mitigation measures may be preempted on as‑applied grounds, but County must analyze off‑site/mainline impacts and only then determine feasibility/preemption of particular mitigations. |
Key Cases Cited
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (California Supreme Court 2010) (baseline must ordinarily reflect actual existing conditions, not hypothetical permitted maxima)
- Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal.4th 439 (California Supreme Court 2013) (future‑conditions baseline rules; stricter scrutiny for using hypothetical future conditions)
- Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (California Supreme Court 2015) (challenges in assessing project GHG significance; role of cumulative/global analysis)
- Friends of Eel River v. North Coast Railroad Authority, 3 Cal.5th 677 (California Supreme Court 2017) (ICCTA preemption framework; categorical vs. as‑applied preemption and implications for CEQA)
- Cleveland National Forest Foundation v. San Diego Association of Governments, 3 Cal.5th 497 (California Supreme Court 2017) (discussion of state GHG regulatory scheme and CEQA guidance)