Wednesday, May 20, 2009
A Contra Costa County Superior Court judge heard arguments this morning on an environmental lawsuit brought against Chevron and the city of Richmond challenging the city's approval of the oil company's planned upgrade of its Richmond refinery.
In September, three environmental justice groups filed a lawsuit challenging the city's approval of Chevron's Energy and Hydrogen Renewal Project. The lawsuit seeks to have the environmental impact report for the project voided.
The project, which was approved by a divided Richmond City Council in July, includes replacing the refinery's 1960s-era hydrogen plant and its 1930s-era power plant.
Refinery officials have stated that the upgrade will increase the refinery's flexibility to process a larger variety of crude oil and improve the plant's energy efficiency and reliability.
Experts at Communities for a Better Environment, Asian Pacific Environmental Network and the West County Toxics Coalition - the three plaintiffs - have said that the upgrade will allow the refinery to process heavier crude oil, which will result in increased pollution.
Roger Kim, executive director of the Asian Pacific Environmental Network, said after the hearing that low-income communities near the refinery are already subjected to disproportionately high levels of industrial pollution and that the Chevron refinery is the largest source of that pollution. He also said residents in neighborhoods near the refinery have "skyrocketing" rates of cancer, asthma and other respiratory illnesses.
The lawsuit claims that the environmental impact report for the project failed to state whether the refinery was planning to process heavier crude oil and failed to propose mitigations for the alleged increased pollution.
In a tentative ruling, Superior Court Judge Barbara Zuniga wrote that under the California Environmental Quality Act, the environmental impact report should enable the public, interested parties and public agencies to weigh the proposed project against its environmental costs and consider appropriate mitigation measures.
The tentative ruling went on to state that the environmental impact report "is unclear and inconsistent as to whether the project will or will not enable Chevron to process a heavier crude slate than it is currently processing" and therefore "fails as an informational document."
Refinery officials have said repeatedly that the project will not increase overall emissions at the plant.
However, the environmental impact report used data from the 1990s to establish a baseline for the types of crude oil it would be processing in the future, according to William Rostov, an attorney with Earthjustice representing the plaintiffs.
Rostov said that Chevron had upgraded the plant in the 1990s and had since been processing lighter and lighter crude oil. He said the new project would enable the plant to go back to processing heavier crude and return to 1990s level pollution.
Ellen Garber, representing the city of Richmond, argued during the hearing today that the city found that the project would not enable the refinery to process heavier crude oil and that the upgrade would decrease many harmful emissions from the plant.
"The city concluded there would be no crude oil heaviness switch," said Ronald Van Buskirk, an attorney representing Chevron.
He said it is "reasonably foreseeable" that future emissions would remain in their current range. Buskirk also said the upgrade would actually reduce emissions from the refinery.
Rostov said the public deserves to know whether the refinery plans to process heavier crude oil.
He said that while the environmental impact report claimed that the crude slate would not change, a statement Chevron officials made to investors said specifically that the upgrade would enable the refinery to process heavier crude oil.
Experts from Communities for a Better Environment and an expert hired by state Attorney General Jerry Brown found that the upgrade would enable the refinery to process heavier crude oil, Rostov said.
Buskirk said the environmental impact report was clear when it stated 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."
Zuniga's tentative ruling, however, said that the statement seemed to say that the only difference in the crude slate would be increased sulfur content, but that the terms "reasonably foreseeable" and "similar" "detract from any certainty this statement would have generated."
Also at issue in the lawsuit is the refinery's plan to mitigate increased greenhouse gas emissions.
Plaintiffs argued that the refinery had not submitted a plan to mitigate greenhouse gas emissions during the environmental review process, but instead deferred the mitigation plans to a later date, which excluded the public from the process, Rostov said.
Garber argued that the California Environmental Quality Act allows for deferred mitigation measures and that the City Council would be able to ensure that the Chevron's future plan to mitigate greenhouse gas emissions was appropriate.
In her tentative ruling, however, Zuniga found that under CEQA guidelines, the formulation of mitigation measures should not be deferred to a later date.
Plaintiffs also alleged that the environmental impact report failed to analyze a proposed pipeline that would transport hydrogen from the new hydrogen processing plant.
Garber argued that the city did not have jurisdiction over the pipeline project. Contra Costa County supervisors will have to review the proposed pipeline project because it traverses the entire county, she said.
Zuniga's tentative ruling, however, stated that because the pipeline is an integral part of the project, it should have been addressed in the environmental impact report.
After the hearing, Zuniga said she would review her tentative ruling once more before making a final ruling, but did not say when she planned to make the final ruling.