In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). First, the court approved the use of 2007 operating data for the refinery as part of the baseline environmental condition, even though the EIR’s notice of preparation was not issued until 2013. Second, the court held, on a matter of first impression, that compliance with California’s cap-and-trade program showed the project’s climate change impact would be less than significant. However, the court also found that the EIR erroneously concluded that federal law preempted CEQA review of certain environmental impacts of off-site rail activities, and thus failed to disclose and analyze these impacts; accordingly, the court overturned the county’s certification of the EIR.

Kern County Refinery

The Proposed Refinery Expansion

Kern County approved a project to modify an oil refinery in Bakersfield. The refinery began operation in 1932 and was operating under air district permits that allowed processing of 70,000 barrels per day of crude oil and other hydrocarbons. In 2013, the new owner of the refinery proposed modifications to enable the refinery to process a greater variety of crude oils, including Bakken crude oil from North Dakota. The project did not propose an increase in the refinery’s 70,000 barrels per day capacity, but in addition to the refinery modifications, it proposed expanding existing rail transfer and storage facilities to allow offloading an average of 150,000 barrels per day from two unit trains; the balance of unloaded crude would be sent to other refineries.

The project was controversial because it would increase transport of Bakken crude, which is generally more volatile than other crude oils. The EIR described safety concerns with transporting crude by rail, including reference to several high-profile train accidents in recent years. Project opponents sued, alleging the EIR violated CEQA in numerous respects. The published portion of the court of appeal’s opinion addresses three of these challenges.
Continue Reading Court Upholds Refinery EIR’s 2007 Baseline and Reliance on Cap-And-Trade for Climate Change Analysis