[UPDATE: Tonight, Oct. 28th, Andrés Soto from Communities for a Better Environment is giving a presentation on the Crude By Rail phenomenon, the Kinder Morgan – Richmond operation, and what actions local communities and governments might take in response. The talk will begin about 7:30 PM at the Richmond City Council Meeting, located at the Community Services Building, 440 Civic Center Plaza, Richmond, CA 94804. Don’t miss it! It will include options to undo the wrongs you will read about below!]
By Tom Griffith, Martinez Environmental Group
Friday, September 5th, 2014, was court day. Not for the protesters who had locked themselves to the Kinder Morgan gates the previous day, but for Bay Area Air Quality Management District (BAAQMD), Kinder Morgan, and Tesoro.
On behalf of Communities for a Better Environment (CBE), Asian Pacific Environmental Network (APEN), Sierra Club, and Natural Resources Defense Council (NRDC), Earthjustice filed a lawsuit against Kinder Morgan and BAAQMD. Earthjustice argued that since there was no public notice or environmental review, the crude-by-rail project at Kinder Morgan should be shut down, pending a full California Environmental Quality Act (CEQA) review.
This was an important moment for those of us tormented by the ever increasing likelihood of a new rail disaster. It was our best shot at shutting down the bomb trains until a proper CEQA review examined all the angles.
Such an important case should be determined on its merits. But Superior Court Judge Peter Busch took the easy way out and dismissed the Earthjustice case on a technicality.
It was a technicality, but a questionable one.
The judge ruled that the statute of limitations of 180 days had run out prior to the Earthjustice filing. It didn’t seem to matter that Kinder Morgan’s secrecy made it impossible to know what was going on, and once the local CBS news affiliate KPIX broke the story, a petition was immediately filed. The judge actually said that normal citizens could have seen what was going on at the facility and been able to file a lawsuit within the 180 day limit! It didn’t seem to matter that Kinder Morgan didn’t even have a permit to handle Bakken crude oil until February 3rd, 2014 although they had been transloading for 5 months prior to the issuance of the permit. The judge decided to start the 180 day statutory clock running when the 2013 permit to construct was issued, not the permit to handle. See the full timeline below.
It was a cowardly and random decision, at least it was from my vantage point.