Judge halts major Bay Area refinery project for state environmental review

MARTINEZ, Calif. (CN) — Phillips 66 must halt a plan to start operating a new biofuel refinery in Rodeo, California, after a San Francisco Bay Area judge said the county that approved it must fix legal issues with the project's environmental report card.

Contra Costa County Superior Court Judge Edward Weil ordered Phillips 66 to put on hold what would be one of the world’s largest biofuel refineries, to produce some 800 million gallons of biofuel products per year. The county must show that the project fully complies with environmental review requirements which he found had been violated when authorities first approved it.

Petitioners Communities for a Better Environment and the Center for Biological Diversity asked Weil to vacate his prior judgment and prohibit operations while the county works on the known legal flaws in its environmental analysis of the project. They said Weil’s prior judgment allowed the project’s land use permit to remain in place and failed to enjoin operations while the county proved its compliance with the California Environmental Quality Act — the state’s bedrock environmental protection and community right-to-know law.

The judge said in a tentative order that his prior judgment’s purpose was to allow for construction, not operations, while environmental legal issues are considered. He said that he must consider whether there is any conflict between the statement of decision and the judgment.

“There is, however, a potential conflict between the statement of decision and the judgment because the court allowed the land use permit to remain in place but did not specifically enjoin project operations,” Weil said. “Therefore, the court grants petitioners’ motion to vacate the judgment and to issue a new judgment that specifically enjoins project operations until further order of the court.”

Weil ruled from the bench Thursday to execute the tentative order as his official judgment. 

Attorney Kurtis Keller, representing Contra Costa County, declined to comment on the ruling Thursday. John Kopchik, the county's director of the Department of Conservation and Development, and Phillips 66 attorney Nicki Carlsen said they thought the issues which the environmental report must address in revision are "straightforward."

Hollin Kretzmann, an attorney at the Center for Biological Diversity’s Climate Law Institute, lauded Weil's decision. She noted that construction on the refinery can continue. 

“Counties are required to evaluate, disclose and reduce the environmental harms of a project before approving it,” Kretzmann said. “Communities long suffering from refinery pollution have every right to demand maximum protections against toxic emissions and foul odors, and the county needs to secure them.”

The planned refinery is near the Marathon-Tesoro biofuel refinery in Martinez, which itself could eventually produce more than 700,000 gallons per year of biofuel products and become one of the largest biofuel refineries in California. The petitioners say that the two projects would require at least 82,000 truck trips, nearly 29,000 railcars and more than 760 ship and barge visits annually. 

That increases pollution, traffic and the risk of spills and accidents from the projects, while generating and processing biofuels that would worsen existing impacts on communities nearby fossil fuel processing plants. The state considers people who live near the refineries to be “disadvantaged” because of their high exposure to pollution from existing industries. The proposed refineries would cement ongoing or increased air and odor pollution for these residents for decades, the petitioners say.

“This is a huge victory for nearby residents who’ve raised serious concerns about pollution that will come from this giant refinery,” said Shana Lazerow, legal director of Communities for a Better Environment. “Allowing this project to operate before the environmental review process is complete would’ve rigged the whole decision in favor of the refinery operator.”

Stephanie Safdi, clinical supervising attorney for the petitioners, said the ball is now in the county's court to properly disclose and analyze the project and its environmental impacts, and whether those impacts necessitate selecting alternatives to the project or adding mitigation measures to avoid or minimize environmental impacts. 

"The county must also provide the public an opportunity to review and comment on a new and valid environmental impact report before it makes a final decision," Safdi said. "It will further need to demonstrate to the court that it has complied with the court’s directions before Phillips 66 will be allowed to start operating the converted refinery."

Sara Evall, a student attorney at the Stanford Environmental Law Clinic, said Thursday: “The county is obligated to reassess the project based on community members’ input and an unbiased record. Rights of the public to informed democratic decision-making come before Phillips 66’s bottom line.”

The judge’s prior order, which found that the county had violated the California Environmental Quality Act by approving the biofuel refinery without properly assessing major components or adopting mitigation for odor impacts on local communities, came down this past July.

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