Struggle on the Other Coast, Part II – Georgetown International Environmental Law Review

StruggleOnTheOtherCoast Part II

Struggle on the Other Coast, Part II

By Corey Kestenberg, Staff Contributor

The juxtaposition between corporate profits and human and environmental safety has long been an issue requiring a constant balancing act. This struggle is highlighted by the recent . In this three-part installment piece, GIELR Online explores the issue by examining the actions of Chevron, and the reactions emanating from the adjacent located in Richmond, California. Part I provides a history on Chevron’s operation in Richmond, its harmful effects on the community, and the mixed reactions to the business. Part II delves into the community and judicial backlash against Chevron, and the heavier burdens imposed upon its future projects. Part III wraps up the piece by posing the following question: how can the community, the industry, and the government motivate safer corporate practices by large companies like Chevron?

Chevron Richmond’s Attempt and Reattempt to Expand its Reign

“‘Chevron must stop its toxic assault on poor people of color in Richmond. The City Council is selling out our community, but our health is not for sale. We will fight this until we achieve environmental justice.’”

       –Henry Clark, 2008[1]

It is possible that in 2005, when the Air District implemented its flare reduction regulation, Chevron was only minimally—if at all—concerned with its compliance with the regulation. This is because it was likely more concerned with the approval of the refinery expansion project that it had just proposed.[i],[2] Chevron considered the project to be an upgrade—an updating of equipment that would enable the refinery to better comply with California’s air quality standards.[3] In four stages, Chevron would replace its steam boiler plant with a “more efficient” gas turbine plant, substitute a new hydrogen plant for the old one, update equipment to enable better purification of the hydrogen produced in the refining process, and replace two gasoline reformers with newer ones.[4] All was going according to plan: From 2005-2008, Chevron obtained conditional use permits from the City of Richmond and the Air District. Yet, in 2008, just after Chevron received its conditional use permits and the go-ahead on construction, the West County Toxics Coalition and two other environmental community advocacy groups—Communities for a Better Environment and Asian Pacific Environmental Network—filed a lawsuit in California State Court.[5]

The complaint alleged that Richmond issued Chevron’s permits without requiring the company to adequately disclose the anticipated environmental impact of the project.[6] The environmental groups’ lawsuit represented the culmination of their frustration not just with Chevron, but with the way their Richmond City Council—the body that was supposed to represent the best interests of Richmond’s citizens—dealt with Chevron’s plans.[7] The City Council assigned Chevron conditional permits despite the fact that Chevron’s Environmental Impact Report (EIR) did not fully disclose the impact that the project would have on the Richmond community. The community faulted the City Council for not adhering to the California laws that required the City to notify the public about the deal before signing on the dotted line.[8]

On June 4, 2009, Judge Barbara Zuniga, sitting on the Contra Costa County Superior Court held that Chevron’s EIR violated the California Environmental Quality Act, because it “‘is unclear and inconsistent as to whether (the) project will enable Chevron to process a heavier crude slate than it is currently processing.’”[9] Judge Zuniga demanded that Chevron be up front both with the City Council and with the Richmond community about the anticipated effects of the project on Richmond.[10] Judge Zuniga also criticized Chevron for not being clear about how it would avoid a net increase in greenhouse gas emissions, and condemned the City of Richmond for approving the plan in stages, thus allowing Chevron to downplay the environmental impact of the project as a whole.

In late July 2009, Chevron filed an appeal of Judge Zuniga’s decision. It issued a press release with the subtitle, “Lawsuit stopped project that reduces emissions and creates 2000 construction jobs,”[11] and alerted the public to its determination (which no member of the public likely doubted) to implement the planned refinery changes. Chevron maintained that its EIR contained enough factual evidence to show that emissions after the project would be lower than its current emissions. It also promoted the uncontested proposition that the project would create thousands of construction jobs.[12] In highlighting job creation and downplaying environmental concerns, Chevron seemed to imply that it, not the community, knew what was best for Richmond. Richmond citizens did not deny that the city could use the jobs, however, the majority of the community also did not agree with Chevron’s cost-benefit calculus, which failed to give adequate weight to the environmental effects of the project.[13]

Less than one year after it filed its appeal, Chevron was again dismayed when the California First District Court of Appeal in San Francisco affirmed Judge Zuniga’s ruling. It said that Chevron’s claims that the project would not lead to the processing of heavier crude oils were unsupported by evidence; it also agreed that Chevron had not explained how it would avoid increasing its greenhouse gas emissions.[14] However, the court did lay down steps the company could take to lawfully move forward with the project by submitting a better-supported and more transparent EIR.[15]

Following the advice of the California First District Court of Appeal, Chevron resubmitted a less opaque EIR. This time around, Chevron has been more careful not to mince words and has made a real effort to present clearer plans. Chevron is not calling the project “‘an expansion,’” but rather “‘a modernization effort,’” focusing on the fact that the refinery will continue to produce its current amount of 250,000 barrels of crude oil per day, not more.[16] The new EIR, which was released in March 2014, says the refinery will begin to process crude oil with high-sulfur content in addition to processing oil with lower or medium sulfur content.[17] Some Bay Area environmentalists say that “heavier crude, with higher sulfur content, increases pollution and the corrosion of pipes in the refining process, similar to the sulfur corrosion that helped cause the Richmond refinery fire in August.”[18] To reduce the probability of one of these unwanted incidents from occurring again, the plans state that Chevron will equip the refinery with machinery that is more capable of handling sulfur and will replace piping with corrosion-resistant piping.[19]

Chevron also maintains that there will be no net increase in gas emissions.[20] Yet, Chevron’s claim of no net increase in emissions directly conflicts with a statement in the EIR that says greenhouse gas emissions will increase, but “will have a ‘less-than-significant impact on climate change.’”[21] In the EIR, Chevron proposes mitigation measures, including a solar energy facility and a forestry program, which it believes will counter the effects of any increased emissions.[22] Ultimately, whether or not more sulfur means more pollution and more health problems for Richmond cannot be determined until the new machinery and procedures are implemented.

Learning from its past missteps, the City of Richmond is also being more transparent with the project’s approval process. The community was invited to comment on the EIR through May 2, 2014.[23] In July 2014, the City’s Planning Commission certified Chevron’s EIR, followed by an approval by Richmond City Counsel.,[24] However, the company is not holding its breath—it expects a future legal challenge on the recomposed project plan.[25]

GIELR LOGO SMALL

Part III will wrap up by posing the following question: how can the community, the industry, and the government motivate safer corporate practices by large companies like Chevron?


 

[i] News sources referred to the Chevron project with varied terms, including “expansion” and “upgrade.” See Anna Vignet, Chevron Refinery’s Planned Expansion Worries Environmentalists, KQED News, Aug. 7, 2013, http://blogs.kqed.org/newsfix/2013/08/07/chevron-california-carbon-trading/; see also George Avalos, Chevron Plans $1 Billion Upgrade of Its Richmond Refinery, Contra Costa Times, June 29, 2013, http://www.contracostatimes.com/ci_23563147/chevron-plans-1-billion-upgrade-its-richmond-refinery.

[1] Tom Butt, Environmental Groups Sue City of Richmond Over Approval of Chevron Refinery Expansion, Sept. 4, 2008, http://www.tombutt.com/forum/2008/080904.htm.

[2] City of Richmond, Chevron Refinery Modernization Project, http://chevronmodernization.com/ (last visited May 1, 2014).

[3] Project Snapshot: Richmond Refinery Energy and Hydrogen Renewal Project, Downstream Today, Sept. 29, 2010, https://www.downstreamtoday.com/Projects/Project.aspx?project_id=42&AspxAutoDetectCookieSupport=1.

[4] Id.

[5] Id.

[6] Butt, supra note 1.

[7] See id.

[8] Id.

[9] Richard Brenneman, Chevron Defeated in CEQA Lawsuit; Richmond Refinery Plans in Doubt, Berkeley Daily Planet, June 11, 2009, http://www.berkeleydailyplanet.com/issue/2009-06-11/article/33129?headline=Chevron-Defeated-in-CEQA-Lawsuit-Richmond-Refinery-Plans-in-Doubt–By-Richard-Brenneman-.

[10] Id.

[11] See Chevron, News Release: Chevron Appeals Court Decision Stopping Refinery Upgrade, July 20, 2009, http://richmond.chevron.com/files/richmond/pdf/Chevron_Richmond_Appeal.pdf.

[12] See Chevron, News Release: Chevron Appeals Court Decision Stopping Refinery Upgrade, July 20, 2009, http://richmond.chevron.com/files/richmond/pdf/Chevron_Richmond_Appeal.pdf.

[13] Butt, supra note 1.

[14] Jesse Greenspan, Court Keeps Chevron Refinery Expansion on Hold, Law360, Apr. 27, 2010, http://www.law360.com/articles/164617/court-keeps-chevron-refinery-expansion-on-hold.

[15] Id.

[16] Mike Aldax, Draft EIR for Chevron Richmond’s Modernization Project Released, Richmond Standard, Mar. 18, 2014, http://richmondstandard.com/2014/03/chevron-richmond-releases-draft-eir-report-modernization-project/.

[17] Id.

[18] Matthias Gaffni, “Canadian Tar Sands Crude Heads sto Bay Area Refineries,” Contra Costa Times, June 1, 2013, available at http://www.contracostatimes.com/ci_23366257/canadian-tar-sands-crude-heads-bay-area-refineries.

[19] Aldax, supra note 22.

[20] Id.

[21] Sally Schilling, “Chevron Plant Upgrade Promises More Jobs and More Greenhouse Gasses,” Richmond Confidential, March 21, 2014, available at http://richmondconfidential.org/2014/03/21/chevron-plant-upgrade-promises-more-jobs-and-more-greenhouse-gases/.

[22] Id.

[23] Robert Rogers, Chevron’s Plan to Modernize Richmond Refinery Draws Criticism, Contra Costa Times/ West County Times, Apr. 17, 2014, http://www.contracostatimes.com/west-county-times/ci_25590885/residents-express-outcry-over-chevron-richmonds-modernization-project.

[24] Robert Rogers, Richmond OKs $1 billion Chevron project with $90 million in community benefits, Contra Costa Times/ West County Times, July 30, 2014, http://www.contracostatimes.com/west-county-times/ci_26242232/richmond-approves-massive-chevron-refinery-project-90-million.

[25] Robert Rogers, Richmond: Chevron to Try Again for Modernization Project, Contra Costa Times/ West County Times, Oct. 28, 2013, http://www.contracostatimes.com/west-county-times/ci_24389605/richmond-chevron-try-again-refinery-modernization-project, Chevron’s Plan to Modernize Richmond Refinery Draws Criticism, supra note 29.

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