By Richard Brenneman
Thursday June 11, 2009
Chevron’s environmental study of a proposed expansion of their Richmond refinery received a fatal blow Friday at the hands of a Martinez judge.
Contra Costa County Superior Court Judge Barbara Zuniga struck down the environmental impact report (EIR), declaring that the document’s “project description is unclear and inconsistent as to whether (the) project will enable Chevron to process a heavier crude slate than it is currently processing.”
The court also struck down a decision by the city to allow Chevron to wait a year after the EIR was completed to prepare a plan to mitigate the refinery’s globe-warming greenhouse gas emissions.
Judge Zuniga ruled that Chevron had failed to meet a fundamental requirement of the California Environmental Quality Act (CEQA). “An accurate, stable and finite project description is sine qua non of an informative and legally sufficient EIR,” she wrote.
Crucially, the judge ruled, the EIR “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.”
Heavier oils can produce larger emissions of greenhouse gases than the lighter “sweet” crudes, and the oil company did acknowledge the refinery might be processing oils with a higher sulfur content.
The city was at fault, Judge Zuniga ruled, by failing to state how the refinery would meet the city’s goal of requiring no net increase in greenhouse gas emissions and “by simply requiring Chevron to prepare a mitigation plan and submit it to city staff up to a year after approval of the conditional use permit” allowing construction to begin.
The city also erred in allowing Chevron to “piece-meal” its project, the judge declared. That term refers to a process in which developers attempt to minimize the impacts of a large project by seeking environmental approval in stages, rather than as a whole.
The piece-mealing fault found in the Chevron EIR was its failure to include a hydrogen pipeline planned as part of a hydrogen generation facility planned as part of the expansion.
Will Rostov, an Oakland attorney for Earthjustice, one of the four plaintiff organizations in the lawsuit, said that as a result of Judge Zuniga’s decision—and absent a reversal by an appellate court—Chevron and the city will be forced to redraft the EIR in accordance with the ruling.
“Chevron is disappointed with the court decision regarding the adequacy of the environmental review conducted by the City of Richmond related to the Energy and Hydrogen Renewal Project,” said corporate spokesperson Brent Tippen.
“Chevron believes that the Energy and Hydrogen Renewal Project was properly permitted and that the benefits of the project are identified in the thorough environmental review conducted by the City of Richmond staff and the city’s environmental consultants,” he said. “We will be reviewing the specifics of the court’s decision and will then be determining a course of action in cooperation with the City of Richmond.”
Other plaintiffs included Citizens for a Better Environment (CBE), the Asian Pacific Environmental Network (APEN) and the West County Toxics Coalition.
“This is a great victory for environmental justice,” said Dr. Henry Clark of the West County Toxics Coalition. “It proves that not all judges are in the pockets of Chevron and other corporations.”
Jessica Tovar of CBE said her organization had filed suit because “the people were demanding the truth from Chevron and the city. We’ve been going through this process for three years now.”
One of CBE’s major concerns was the hydrogen pipeline, which would carry the highly flammable gas to the ConocoPhillips refinery in Rodeo and Shell’s Martinez refinery, where, she said, it could be used to help those installations refine their own heavy crude oils.
Tovar said the proposed expansion was “designed to retool the refinery so it could process the heavier crude, and several scientists submitted data supporting our claim,” including one hired by state Attorney General Jerry Brown.
Torm Nompraseurt of APEN said his organization was concerned “that the city had conducted a process that was not very protective of the population.” Praising the judge’s decision, he said, “I think it’s time for Chevron to find a way to help make a greener and cleaner community.”
Nompraseurt also said that despite inconsistent reports to the community, Chevron had told its shareholders that the company did plan to refine heavy crude after the improvements.
Rostov said the next step in the legal process is preparation of a final order, which should occur within the next week or so.
One major question remaining is whether work on the project already under way will have to cease while the new EIR is prepared, or even whether work already completed will have to be removed.
Another CEQA suit against the refinery is also underway, this one involving a challenge to the state’s renewal in January of a 30-year lease for the refinery’s long pier.
That action was filed in March by Oakland attorney Stephan Volker on behalf of the Trails for Richmond Action Committee and Citizens for East Shore Parks.
Chevron is Richmond’s largest employer, and Richmond voters indicated last November that they felt the city should be contributing more to the community when they passed Measure T, a new business license fee structure which mandates that the refinery pay on the basis of the value of crude oil processed.
The company financed a campaign opposing the measure, but the measure passed and two members of the three-person progressive slate who backed it were elected to the City Council, replacing two Chevron supporters.