Valero Crude by Rail Project Public Comments received April 4 -5, 2016 Commenter Date Received Association of Irritated Residents vs. Kern County Board of Supervisors ruling 4-Apr-16 Organizations League of Conservation Voters of the East Bay 4-Apr-16 Benicia Chamber of Commerce 4-Apr-16 Safe Fuel and Energy Resources California 4-Apr-16 Safe Fuel and Energy Resources California 5-Apr-16 Applicant Chris Howe 4-Apr-16 Individual Comments Russell Hands 4-Apr-16 Larnie Fox 4-Apr-16 Margaret Ericson 4-Apr-16 Jean Jackman 4-Apr-16 Charles Davidson 4-Apr-16 Michael D'Adamo 4-Apr-16 Madeline Koster 4-Apr-16 Greg Yuhas 4-Apr-16 California Senator Lois Wolk, Third Senate District 4-Apr-16 Frances Burke 4-Apr-16 Simone Cardona 4-Apr-16 Lynne Nittler 5-Apr-16 Identical Comments "Public Comment re Valero Crude by Rail Project - Appeal Application No. 16PLN-00009" 10 Commenters (List and Sample Attached) 4/4-4/5/16 Identical Comments - With Modifications "Public Comment re Valero Crude by Rail Project - Appeal Application No. 16PLN-00009" Cate Leger 4-Apr-16 Identical Comments "I support the Valero Crude by Rail project" 27 Commenters (List and Sample Attached) 4-Apr-16 Superior Court of California County of Kern Bakersfield Traffic Courtroom 2 Hearing Date: April 01, 2016 Time: 8:00 AM - 5:00 PM ASSOCIATION OF IRRITATED RESIDENTS VS KERN COUNTY BOARD OF SUPERVISORS S1500CV283166 Honorable: J. Eric Bradshaw Clerk: Patrick Ogilvie Court Reporter: N/A Bailiff: N/A Interpreter: N/A Language Of: N/A PARTIES: ACE ATTORNEY SERVICE, Non-Party, not present ALON USA ENERGY, INC., Real Party Interest, not JOCELYN THOMPSON, Attorney, not present present ASSOCIATION OF IRRITATED RESIDENTS, ANGELA MESZAROS, Attorney, not present Petitioner, not present CENTER FOR BIOLOGICAL DIVERSITY, Petitioner, ANGELA MESZAROS, Attorney, not present not present KERN COUNTY BOARD OF SUPERVISORS, CHARLES COLLINS, Attorney, not present Respondent, not present KERN COUNTY PLANNING AND COMMUNITY CHARLES COLLINS, Attorney, not present DEVELOPMENT DEPARTMENT, Respondent, not present PARAMOUNT PETROLEUM CORPORATION, Real JOCELYN THOMPSON, Attorney, not present Party Interest, not present SIERRA CLUB, Petitioner, not present ANGELA MESZAROS, Attorney, not present NATURE OF PROCEEDINGS: RULING ON PETITION FOR WRIT OF MANDATE, HERETOFORE SUBMITTED Hearing Start Time: 2:15 PM * * * * * DISPOSITION The petition is DENIED. Respondents shall prepare a proposed judgment consistent with this ruling. Costs may be claimed in accordance with applicable statutes and rules of court. MINUTE ORDER Page 1 of 6 ASSOCIATION OF IRRITATED RESIDENTS VS KERN COUNTY BOARD OF S1500CV283166 SUPERVISORS BACKGROUND This action arises from respondent Kern County Board of Supervisors’ (“County’s”) approval of the Alon Bakersfield Refinery Crude Flexibility Project (“Project”) in September 2014. The refinery on the Project site was initially constructed in the early 1930’s, and has expanded over the years. Historically, the refinery has processed primarily “heavy” crude oil produced in the San Joaquin Valley. The refinery’s current crude processing capacity is 70,000 barrels per day. The purpose of the Project is to enhance the existing refinery’s flexibility to receive and process a variety of crude oils, including “light sweet” crude oils produced in distant locations such as North Dakota, Colorado and Utah, while maintaining its ability to refine local heavy crude oil. To accomplish this, the Project would expand or modify on-site rail, transfer and storage facilities, including construction of a rail loop connected to the existing railway, and would add, modify, upgrade or repurpose various other refinery facilities. The rail terminal capacity would increase. The permitted crude processing capacity would not change. Petitioners challenge the sufficiency of the EIR and County’s findings under CEQA. Petitioners seek a “writ of mandate or peremptory writ,” injunctive relief and declaratory relief to void the EIR and overturn County’s approval of the Project. STANDARD OF REVIEW The parties do not agree on the appropriate standard of review. The standard of review in CEQA cases is governed generally by Public Resources Code §§ 21168 and 21168.5, and depends on the relief sought. Section 21168 applies in cases seeking administrative mandamus, where a public agency’s “determination, finding, or decision” is made as a result of a “proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency,” i.e., an “adjudicative” or “quasi-judicial” determination. Pub. Res. Code § 21168 ; Laurel Heights Improvement Assn. v. Regents of University of California (“Laurel Heights”) (1988) 47 Cal.3d 376, fn. 5; Vineyard Area Citizens v. City of Rancho Cordova (“Vineyard”) (2007) 40 Cal.4th 412, fn. 4. The court reviews an agency’s determinations under Section 21168 to see if they are supported by substantial evidence in the light of the whole record. Pub. Res. Code § 21168 . Section 21168.5 applies in cases seeking traditional mandamus and cases other than those to which Section 21168 applies, such as cases where an agency has made a “legislative,” “nonjudicial” or “nonadjudicative” determination or decision. Pub. Res. Code § 21168.5 ; Laurel Heights, supra, 47 Cal.3d 376, fn. 5; Vineyard, supra, 40 Cal.4th 412, fn. 4; Center for Biological Diversity v. California Dept. of Fish & Wildlife (“Center”) (2015) 62 Cal.4 th 204, 214-215 . The court reviews an agency’s determination or decision under Section 21168.5 to see if the agency committed a “prejudicial abuse of discretion.” Pub. Res. Code § 21168.5 . An “abuse of discretion” occurs under Section 21168.5 if: (1) “the agency has not proceeded in a manner required by law,” or (2) “the [agency’s] determination or decision is not supported by substantial evidence.” Pub. Res. Code § 21168.5 ; Vineyard, supra, at p. 435. Judicial review of these two types of error differs significantly: the court determines de novo whether the agency has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements,” Vineyard, supra, at p. 435 [quoting Citizens Golleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564] ; the court accords greater deference to the agency’s substantive factual conclusions, and reviews them for substantial evidence. Laurel Heights, supra, 47 Cal.3d at p. 393; Vineyard, supra, at p. 435. Thus, in evaluating MINUTE ORDER Page 2 of 6 ASSOCIATION OF IRRITATED RESIDENTS VS KERN COUNTY BOARD OF S1500CV283166 SUPERVISORS an EIR for CEQA compliance under Section 21168.5, the court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. Vineyard, supra, at p. 435; Center, supra, 62 Cal.4th 204, 214-215. In applying the “substantial evidence” standard to an agency’s factual determinations under both Section 21168 and Section 21168.5, the court must resolve reasonable doubts in favor of the administrative finding and decision. Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514; Laurel Heights, supra, 47 Cal.3d at p. 393. A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. Greenbaum v. City of Los Angeles (1984) 153 Cal.App.3d 401-402; Laurel Heights, supra, 47 Cal.3d at p. 393. The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document. Laurel Heights, supra, 47 Cal.3d at p. 392. The court must resolve reasonable doubts in favor of the administrative finding and decision. Id. at p. 393. DISCUSSION 1. Description of Project and Baseline The EIR describes baseline using environmental conditions as of the date the Notice of Preparation (“NOP”) was published in 2013, adjusted to include the refinery’s production in 2007. The former owner’s 2008 bankruptcy resulted in a suspension of refinery operations. Some of those operations were restarted when real parties in interest purchased the refinery, but there was no crude oil processing in 2013. Petitioners argue that the EIR does not describe the true nature of the Project because it does not treat “restarting” the refinery as part of the Project, and baseline conditions should have been “zero crude processing,” the refinery’s production on the date the NOP was published. CEQA Guideline 15125(a) states, in relevant part: An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published,…This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. 14 CCR § 15125(a). (Emphasis added.) Neither CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline; rather, an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence. Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 310, 328 . The date for establishing a baseline cannot be a rigid one; environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods. Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4 th 99, 125 . In the present case, County did not abuse its discretion in describing the Project or baseline conditions in a manner that recognized the refinery’s 80-plus year production history.