by Andrew Christie, Chapter Director
Having struck out at the SLO County Planning Commission, Superior Court and the County Board of Supervisors, Phillips 66 now contemplates its thrice-denied oil train terminal project and faces a question: Should it go for a fourth strike?
It will if it takes legal advice from Mike Brown, Government Affairs Director of the Coalition of Labor, Agriculture and Business (COLAB). That advice is on offer in a March 17 post to Cal Coast News with the hopeful title “Did the county help a future Phillips 66 appeal?” (You should hit that hyperlink and then come back here, dear reader, as the following is going to assume familiarity with Mr. Brown’s arguments, which I will not be restating in toto.)
Unfortunately for Mr. Brown, and even more unfortunately for Phillips 66 should it decide to burn more of its shareholders’ money and try to construct a legal case based on Mr. Brown’s assertions of fact, judges rely on the administrative record in trying such cases, and nowhere in the record is there anything to be found supporting the assertion that Supervisor Bruce Gibson stated or implied that “the project must have no risk whatsoever.”
Nor does the record support Mr. Brown’s contention that potentially impacted up-rail locations off the refinery project site that the Board considered are in “Boise, or in the boondocks of the Nevada desert.” As the record shows, the other impacts under consideration would have occurred elsewhere in SLO County and the state of California, impacts which the board not only could take into account but was required to by the California Environmental Quality Act, per the state Attorney General. The “considerable back and forth over this issue” that Mr. Brown notes is the result of Mr. Brown and oil companies with oil train projects slated for California wishing it were otherwise.
Even so, Mr. Brown’s assertion that the board “largely denied the project on the basis of a potential problem which might occur in another jurisdiction” is belied by the county’s 35 findings for denial of the permit. Every single one was a finding of incompatibility with or violation of the County’s policies on air quality, land use, growth, safety, biological resources and energy facilities – aka, the SLO County General Plan, Coastal Zone Land Use Ordinance, Local Coastal Plan, Coastal Zone Framework for Planning, and South County Coastal Area Plan.
On the claim that the County was allegedly legally prohibited from denying the permit based on up-rail offsite impacts, Phillips was hoist on its own petard. The County’s findings for denial stated at several points:
“As the Applicant has stated, the County would not be able to mitigate or require conditions upon the project which would ensure the safety for citizens along the mainline rail routes, including the portions within the County, due to the County likely being preempted from requiring these types of measures…. The County would not be able to ensure the safety of the residents of the County, or the state, as a result of the additional probability of a derailment, spill, fire or explosion because of the proposed project.”
In other words, the County did not deny the project on the basis of the project’s up-rail impacts; rather, it included within a long list of local impacts and local land use policy violations the County’s inability – due to federal preemption -- to do anything to mitigate those impacts when they occur outside the immediate vicinity of the Phillips refinery. That “as the Applicant has stated” intro lets Phillips know that its insistence on federal preemption was an exploding cigar that blew up in its face.
As is his wont, Mr. Brown spends half of his piece settling into COLAB’s comfort zone, painting pictures of elitists who drive Mercedes and vacation in Cabo despite their prejudice against fossil fuels. He also rants against “a massive statewide opposition movement, undergirded by anti-industrial and anti-fossil fuel radicals” (i.e. we beat COLAB and the massive -– and massively funded -- network of oil lobbyists, lawyers and friendly electeds it counts on to win these fights. Sorry, Mike, that was rude of us... and about four dozen California cities, counties, and school districts.)
A judge is likely to be equally unmoved by a general argument that seeks to invoke class war against elitists as a way to overrule a specific decision on the merits of a specific project, and by the idea that “a massive statewide movement” was sitting on the dais of the SLO County Board of Supervisors last week and voted 3-1 to deny Phillips 66 its permit.
And as Casey Stengel put it, “it only takes one to hit it” – not 35. The County had sufficient grounds to deny the project on the basis of any one of those 35 findings for denial. Were Phillips to sue – again – winning in court would require that a judge go down the list of all the findings supporting denial and throw every single one of them out. The likelihood of that is dealt with nicely by Mr. Brown in perhaps the only paragraph in his piece that is absolutely correct:
Often courts are reluctant to invade the province of the legislative acts of government enacting land use regulations and will not do so unless they find that the proceedings contained legal process violations or blatant factual errors, or were based on unreasonable standards or imposition of unreasonable requirements…. The test will be: Was the decision supported by the evidence, and is the evidence supported by the facts?
In a word: Yes.