A state appeals court in San Francisco Tuesday upheld a trial judge’s dismissal of a lawsuit in which four environmental groups sought to challenge rail shipments of crude oil through Richmond.
The court said Communities for a Better Environment, known as CBE, and other groups missed a state law’s six-month deadline for challenging a lack of environmental review for the shipments.
A three-judge panel said the California Environmental Quality Act didn’t allow an exception to the deadline even though the groups said they couldn’t have discovered the project sooner.
Court of Appeal Justice Jim Humes wrote for the court:
“Ultimately, CBE’s arguments about the proper balance between the interests of public participation and of timely litigation are better directed to the Legislature, not this court.”
The panel unanimously upheld a similar ruling in which San Francisco Superior Court Judge Peter Busch dismissed the lawsuit in 2014.
The crude oil is carried by the Texas-based Kinder Morgan energy company in railroad tanker cars from North Dakota’s Bakken shale formation to Kinder Morgan’s Richmond terminal, where it is transferred to tanker trunks.
The shale oil is extracted through hydraulic fracturing, or fracking, and horizontal drilling.
The environmental groups contend that shale crude oil, which is lighter than other types of crude oil, is dangerous because it is more explosive in the event of a derailment. They also say fumes emitted during the oil transfers harm human health.
The groups sued the Bay Area Air Quality Management District in March 2014 after discovering that the agency had quietly issued a permit for the project in July 2013 without requiring an environmental impact report.
The permit allowed Kinder Morgan to change its previous ethanol facility to the crude oil facility.
In addition to CBE, the plaintiffs were the National Resources Defense Council, Asian Pacific Environmental Network and Sierra Club. They were represented by the Earthjustice law firm.
They argued that a report should have been required under the CEQA law, while the air district and Kinder Morgan contended no report was needed because granting the permit was a ministerial rather than discretionary decision.
But the issue of whether there should have been an environmental report was never reached in court because Busch ruled, and the appeals court agreed, that the lawsuit was filed too late.
The appeals court said:
“We acknowledge that if there were any situation in which it would be warranted to delay the triggering of a limitations period in the manner CBE urges, it would be one in which no public notice of the project was given and the project’s commencement was not readily apparent to the public.”
But the panel said that case law set by the California Supreme Court and other courts established that the Legislature made a “clear determination” that CEQA challenges must be filed within the deadline.
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