Court to Chevron: consider climate change

Pub date May 11, 2010
SectionGreen City

By Adam Lesser

GREEN CITY When a California appellate court rejected Chevron Corporation’s attempt to expand its Richmond refinery without clarifying whether it intends to process heavier, more polluting crude oil two weeks ago, planetary concerns loomed even larger than local impacts.

Environmental and local groups celebrated a ruling against a project that would have fouled Bay Area air, but legal experts have pointed out that the long-term impact of the ruling may have less to do with crude oil refining and more to do with global warming.

Justice Ignacio John Ruvolo took nine pages of the 35-page decision specifically to address the fact that the environmental impact report (EIR) failed to outline how Chevron was going to mitigate the approximately 898,000 metric tons of carbon dioxide emissions the refinery expansion would create. The Richmond refinery is already the largest emitter of CO2 in California, clocking in at just under 4.8 million metric tons annually.

The appellate court’s ruling is the first to state that it is illegal under the California Environmental Quality Act (CEQA) to defer to a later date the mitigation of greenhouse gases. Ruvolo, representing the 3-0 ruling, wrote “incremental increases in greenhouse gases would result in significant adverse impacts to global warming, the EIR was now legally required to describe, evaluate, and ultimately adopt feasible mitigation measures that would ‘mitigate or avoid’ those impacts.”

Ruvolo goes on to point out that if the greenhouse gas mitigation is worked out later, the public wouldn’t have a chance to comment on how best to offset those emissions. Or worse: maybe adequate mitigation isn’t even possible. An amicus brief filed by the Center for Biological Diversity pointed out that mitigating 898,000 tons of greenhouse gases is equivalent to taking 160,000 cars off the road. That’s a tall order, and the appellate court wants a better EIR that lays out adequate measures to offset the added emissions.

“There was absolutely no specificity on whether the mitigation could be accomplished,” said Matt Vespa, who wrote the amicus brief. “There needs to be a clear road map of what will happen.”

Possible mitigation measures include internal efficiencies at the refinery, ranging from improved heat exchangers to carbon sequestration. But Vespa and Earthjustice attorney Will Rostov, who argued the case, are hopeful that a plan could include measures that would aid the Richmond community, such as retrofitting low income homes or installing clean sources of energy like solar panels.

The issue of mitigating greenhouse gases comes as Democrats in the U.S. Senate prepare to introduce a cap-and-trade bill. Rostov expressed concern that mitigation could occur far away from Richmond, where residents could suffer environmental harm and receive no benefits from Chevron.

Chevron has not yet said what its plans are, only that it is reviewing its options. They include cooperating with a new EIR, halting the expansion, or appealing the ruling to the California Supreme Court. On the possibility of appealing, Vespa commented, “I certainly don’t think the decision was a stretch in terms of the law.”

For now, the community waits. Richmond has a 19 percent unemployment rate and there have been mixed reactions to the project ever since a Contra Costa Superior Court halted the expansion last summer. The project had support from trade unions in need of jobs, although many residents are fearful of more pollution from a corporation it views as a bad and untrustworthy neighbor.

The political fight between the city and Chevron got worse this year as a battle over how much utility tax Chevron should pay became irresolvable. The situation is heading for a showdown in November, with both sides authoring competing ballot measures and the potential for the city to lose $10 million in revenue. A proposed 15-year agreement recently has been outlined.

The conflict over taxes is another milestone in a difficult relationship between Chevron and the citizens of Richmond. The near-term victory for those living in Richmond is a legal framework for holding Chevron responsible for pollutants it puts in the air Richmond citizens breathe.

“CEQA has been around for 40 years and it’s been protecting air and water,” Rostov told the Guardian. “This case shows that CEQA is going to protect the public health from greenhouse gases.”