LAND USE:

Chevron runs into Calif. law in state court

MARTINEZ, Calif. -- A plan at Chevron Corp. to expand an oil refinery in suburban Contra Costa County ran into trouble yesterday when the company's attorneys came face to face with opponents who say the project has failed to satisfy greenhouse gas emissions requirements under a California land-use law.

In a courtroom hearing held here yesterday, Contra Costa County Superior Court Judge Barbara Zuniga indicated that she is leaning against finding for Chevron and the city of Richmond, Calif., in a lawsuit brought by environmental groups against the city's approval of the refinery upgrade.

Zuniga didn't say much during two hours of comments from attorneys representing the environmental groups and Chevron, as she quizzed both sides on the likely effects of the project on air quality, greenhouse gas emissions and local communities. But she did give a fairly definitive hint before breaking off the hearing.

"I cannot say that the city or Chevron have convinced me," she said.

The case represents the first time a major oil company has had to cope with the California Environmental Quality Act's greenhouse gas emissions requirements. Up until now, early court battles over the law's new climate change provisions, which direct developers to plan for carbon dioxide mitigation, have been limited primarily to municipalities looking to upgrade their urban plans.

But Earthjustice, the Asian Pacific Environmental Network and several community groups decided in September to challenge the refinery on two counts. They filed suit against its greenhouse gas mitigation proposals and alleged that the expansion would let the plant process heavier crude oils.

William Rostov, a staff attorney who argued on behalf of Earthjustice, charged Chevron with trying to defer its CEQA obligation to some unspecified future date. He urged the court to reject the project's approval and send a signal to other developers that the law has the teeth it needs to force carbon analysis.

"Chevron, not the city, is trying to decide what mitigations they'll employ," Rostov said. "The public was shut out."

Rostov said the project would let Chevron, which is based in the San Francisco Bay Area, switch to processing dirtier oils that would increase CO2 emissions and toxics. He said Richmond officials glossed over the issue in the environmental impact report approved by the city council.

He asked the judge to reject that report and send Chevron back to square one. Such a ruling would be consistent with a "tentative" finding unveiled by Zuniga this week that found the city had improperly postponed dealing with carbon emissions under CEQA.

Chevron, Richmond see no 'significant' effect

Ronald Van Buskirk, an attorney for Chevron from San Francisco-based Pillsbury Winthrop Shaw Pittman LLP, countered that the oil giant had completed the necessary work called for by CEQA. He referenced a list of mitigation measures included in the environmental impact report and said the expansion would add zero emissions to the plant's output.

Van Buskirk added that the upgrade is an attempt to replace older equipment with "no environmental effects."

"The air emissions are going to go down," he told the court.

Van Buskirk insisted the environmental groups had ignored the CEQA documents approved by the Richmond City Council in the name of blocking any development. He also took issue with the contention that Chevron intends to process heavier crudes, claiming the refinery would continue processing a mix of light and medium oils.

Chevron's plan, he noted, is to take down a hydrogen plant and replace it with refinery operations (to include a new pipeline) that will continue to process lighter crudes. Yet the plaintiffs, in his view, have attempted to divert attention from the city council's extensive review by "redefining" the project as an attempt to process heavier crudes.

"If you're somebody who wants to attack such a project, what you do is redefine it," he said.

Ellen Garber, an attorney with the city of Richmond, reiterated much of Van Buskirk's argument, saying the city council does not intend to permit heavy crudes at the plant.

"The renewal project would not enable the refinery to change the processing of crude oil in a manner that would have a significant effect on the environment," she said.

On climate change, Garber insisted that the city's EIR includes "a long list of mitigation alternatives" that should satisfy the CEQA guidelines.

What next, a precedent?

Following the hearing, activists appeared confident the judge would rule in their favor and expressed hope the case would establish a precedent.

Roger Kim, executive director at the Asian Pacific Environmental Network, said the lawsuit could send a signal to companies, especially in California, that laws like CEQA will prevent them from "locking in dirty infrastructure" before state and federal climate laws take effect.

"This case is indicative of a national trend," he said in an interview. "It's setting a tone."

For his part, Rostov refused to offer a prediction either way when asked what would follow the judge's decision.

"Let's just take it one step at a time," he said.

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