In a March 2018 decision, the First Appellate District examined several CEQA issues pertinent to petroleum refining and hazardous materials transport. In Rodeo Citizens Association v. County of Contra Costa, the appeals court affirmed several findings of the lower court, dismissing challenges to the environmental impact report (“EIR”) prepared for a propane and butane recovery project at the Phillips 66 refinery in Rodeo. (The appeals court did not review the trial court’s order to the county to set aside the certification of the EIR and correct several other air quality related issues.) The appeals court found the risk of rail transportation of propane and butane was appropriately measured against the baseline of existing risks; the project description did not mask plans for the refinery to alter its crude oil feedstock; and that greenhouse gas impacts from downstream uses of petroleum products need not be evaluated.
In reviewing the analysis of risk from rail transport of propane and butane associated with the project, the court agreed with the county that the determination of impacts should be measured against existing risk from the already-operating facility. The project EIR included a Quantitative Risk Analysis of a potential release from a rail accident and found that the overall increase in risk to the public is not “materially higher than the current (baseline) risk associated with the current transport of butane” on the same rail lines. Thus, the EIR was correct in finding the proposed project would have a less than significant impact.
The court also dismissed Rodeo Citizens Association’s contention that the project description masked a “covert plan” to change the refinery crude feedstocks to include tar sands and Bakken crudes. While acknowledging there was evidence that the refinery intended to modify its then-existing crude feedstock, the court found that the propane and butane project was not dependent on a change in feedstock nor was the intended change in feedstock dependent on approval of the current project. The court noted that the existing baseline refinery crude stock had sufficient propane and butane feedstocks to support the proposed project. Thus, by approving the recovery project, the county was not implicitly or explicitly approving a change in crude oil feedstocks. Consequently, the project description, which did not include changes to feedstock, was adequate.
Regarding the greenhouse gas impact analysis, the court found that the county appropriately determined that an evaluation of greenhouse gas impacts from downstream uses of propane and butane recovered from the project would be “speculative.” The EIR stated that there are multiple downstream uses for these products (including non-fuel uses) and the impact on greenhouse gas emissions could be negative or positive depending on the specific fuel replaced. Given this uncertainty, the court ruled that the county appropriately found the impacts were too speculative for evaluation, noted this conclusion, and terminated the discussion of the impacts. The court cited the concurrence of the Bay Area Air Quality Management District, an agency with expertise in greenhouse gas evaluation, with the conclusions of the county as additional support for its ruling.