Environmentalists sued too late to block creation of a railroad transit site for highly flammable Bakken crude oil in Richmond, California, even though air quality regulators failed to make public their approval of the project.
A California state appeals court ruled Tuesday the groups filed their lawsuit seeking environmental review outside the 180-day legal time limit to stop the Kinder Morgan Material Services Co. from converting an ethanol train-to-truck transloading site to a Bakken crude transfer site.
Bakken crude was the fuel carried during a train derailment in the Canadian town of Lac-Megantic, which destroyed the town and killed 47 people in a massive explosion and fire. Some 60 tank cars derailed and caught fire.
A North Dakota town was evacuated after a 107-car train carrying Bakken crude derailed, creating a huge fire. Since the increase in the production of Bakken oil, largely from North Dakota, there have been a number of oil spills, explosions and evacuations. (EarthJustice map of train derailments or accidents.)
Communities for a Better Environment, the Sierra Club, Natural Resources Defense Council and Asian Pacific Environmental Network sued contending the Bay Area Air Quality Management District violated the California Environmental Quality Act by approving the Richmond facility as a “ministerial” change in rail use and thus exempt from CEQA review.
CBE and the others argued the time clock should not start running until they discovered the ruling because the BAAQMD gave no public notice of the project.
But the court held allowing delay until the time an action is discovered “has never been applied to postpone the deadline beyond the date the “plaintiff has constructive notice of an injury.”
Yet the court was reluctant in its rejection of the environmental review.
“Given the important role of public participation in the CEQA process, 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,” wrote Justice Jim Humes.
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,” Humes said.
Case: Communities for a Better Environment v. Bay Area Air Quality Management Dist., No. A143634
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