22 Cal. App. 5th 214
Cal. Ct. App. 5th2018Background
- Phillips 66 sought a land use permit for a Propane Recovery Project at its Rodeo refinery to recover up to 14,500 barrels/day of propane and butane from refinery fuel gas and ship by rail; the project would replace that fuel in refinery boilers with purchased natural gas.
- Contra Costa County prepared a DEIR (2013), FEIR, then recirculated a RDEIR and RFEIR (2014–2015) to address Air District concerns about health risk assessment and greenhouse gas analysis; the county certified the RFEIR and approved the permit in February 2015.
- Rodeo Citizens Association (Citizens) challenged the approval, arguing the project description failed to disclose an anticipated change in crude feedstock (e.g., tar sands/Bakken), the EIR inadequately assessed greenhouse gas (GHG) impacts from downstream combustion of sold LPG, and the RFEIR understated public/environmental hazard risks from rail transport and cumulative rail risks.
- The trial court issued a peremptory writ of mandate directing the county to set aside certification and correct specified air-quality inadequacies; Citizens appealed additional rulings rejecting its other claims.
- The Court of Appeal affirmed: it upheld the county’s project description, concluded downstream GHG quantification would be speculative and thus not required, and found the RFEIR’s hazard/rail risk analyses and cumulative-consideration approach legally adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Project description adequacy (whether EIR should disclose/anticipate change to heavier crude slate) | Project covertly depends on or anticipates a feedstock shift to tar sands/Bakken that increases LPG and other emissions; EIR is misleading/inadequate. | Project is based on existing operations and permits; project doesn't enable or require a crude-slate change; substantial evidence supports that feedstock change is independent and speculative. | Court held project description adequate; substantial evidence shows project is independent of any crude-feedstock change. |
| Downstream GHG from combustion of sold propane/butane | EIR must quantify downstream GHG from end‑use combustion of products sold because those emissions are foreseeable environmental effects. | End uses and market effects are uncertain and dynamic; quantifying downstream GHG would be speculative; CEQA permits terminating analysis when impacts cannot reasonably be quantified. | Court held county reasonably declined to quantify downstream GHG because estimating end uses/market effects would be speculative; agency discretion upheld. |
| Hazard/public safety from transportation (rail derailment, BLEVE) | RFEIR underestimates risk to nearby receptors (e.g., child care center) and should show overlays and direct reckoning of risks to those facilities. | County performed quantitative risk analysis (QRA) with CANARY modeling, compared risk transects, showed incremental rail risk similar to baseline and child care center outside modeled risk zone. | Court held modeling and conclusions adequate; no requirement for additional overlays and found impacts less-than-significant under adopted thresholds. |
| Cumulative risk analysis for rail incidents | County should include other foreseeable rail projects/traffic in cumulative analysis because similar effects (derailment risk) could be cumulatively considerable. | Many purported projects are distant or involve different commodities/trips; proposed project adds tank cars to existing trains without increasing train trip frequency, so cumulative contribution is not reasonably included. | Court held county’s approach not an abuse of discretion; cumulative impact discussion guided by practicality and reasonableness. |
Key Cases Cited
- San Joaquin Raptor Rescue Center v. County of Merced, 149 Cal.App.4th 645 (2007) (EIR requires accurate, stable, finite project description)
- Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412 (2007) (de novo review of project-description adequacy)
- Muzzy Ranch Co. v. Solano County Airport Land Use Com., 41 Cal.4th 372 (2007) (CEQA Guidelines accorded great weight)
- Communities for a Better Environment v. City of Richmond, 184 Cal.App.4th 70 (2010) (EIR inadequate where it ambiguously implied enabling processing heavier crude)
- Rialto Citizens for Responsible Growth v. City of Rialto, 208 Cal.App.4th 899 (2012) (lead agency may decline further analysis when impact is too speculative)
- Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, 44 Cal.4th 459 (2008) (cumulative impact inclusion governed by practicality/reasonableness)
- Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (D.C. Cir. 2017) (downstream GHG quantification required where reasonable assumptions permit estimation — distinguished)
- Mid States Coalition for Progress v. Surface Transportation Bd., 345 F.3d 520 (8th Cir. 2003) (agency cannot ignore reasonably foreseeable downstream impacts — distinguished)