First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR
In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.
Phillips 66 Company (Phillips) applied for a permit to upgrade the facility and operations at an existing oil refinery propane recovery plant (Project). Specifically, the Project would add to and modify existing facilities to enable Phillips to recover butane and propane from its refinery and ship it by rail. After circulating the draft EIR and responding to comments, the County approved a recirculated final EIR (RFEIR).
Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions at project completion.
Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the RFEIR. The Appellate Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed Project.
Petitioners also claimed that the project description and RFEIR were insufficient for failing to detail the Project’s environmental impacts from purported changes to the crude oil feedstock, specifically the refining of heavier oils. The Court found that the RFEIR laid out that the Project is not dependent on a change in feedstocks and the Project only plans to utilize existing steam without any additional imports or modifications to the refinery. Thus, substantial evidence in the record supported the conclusion that the Project was independent of any purported change in the crude oil feedstock used at the refinery and would not increase its present capacity to refine heavier oils.
The Court upheld the lead agency’s description of the Project and concluded that Petitioners failed to provide evidence that the lead agency’s approval of the Project inappropriately approved any potential future changes not included in the Project description.
Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore reducing overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond the County and Phillips’ responsibilities.
Finally, the Court rejected Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the Project. In the RFEIR, Phillips properly addressed significance of the Project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.
The Court affirmed the trial court holding on each of these issues.
Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.