Statements and communications by Benicia's mayor could lead a court to invalidate the California city's deliberations on a proposed railed crude offloading project, an attorney for the city has warned.
Mayor Elizabeth Patterson's urging of tougher laws and regulations on such rail movements through the state could lead a court to require the city rehear arguments on a proposed Valero project without her, attorney Michael Jenkins advised in June as part of a memo the city released this week.
Her public position on the issue could cause her ultimate vote on the project to be discarded, Jenkins warned. A court could also require a new hearing on the project without the mayor's participation.
"The uncertainty dictates that we provide you the safest course, which is for the Mayor to recuse herself," Jenkins wrote.
Patterson could not be reached for comment. Valero declined to comment on the memo, calling it a city matter.
The refinery, Benicia's largest taxpayer, now waits for a final environmental impact review document on its proposed 70,000 b/d railed crude offloading facility at its 170,000 b/d refinery in Benicia. Valero wants to back out waterborne imports with cheaper North American crudes.
The project faced a string of regulatory delays and wariness from opponents on public safety and environmental grounds. Valero originally planned to complete construction in 2013.
An extended public comment period on the final document ended 15 September. City staff at the time described November as the soonest a completed final document could be produced for council approval.
Jenkins did not suggest that Patterson was outright opposed to the project, but that a judge could reasonably decide that the mayor was. Patterson has repeatedly distributed information to mailing lists on crude by rail, participated in forums to discuss the issue, and has requested the governor strengthen regulations of such crude transportation.
"The Mayor has not so much stated her opposition to crude by rail as she has advocated for tougher safety rules governing the activity," Jenkins wrote.
Such advocacy isn't unusual for an elected leader. But the appearance of having made up her mind on the topic could pose a problem in the consideration of the final environmental review document. The council will act more like a judge than a legislative body in the review task, meaning all sides must be given impartial due process, Jenkins said. The most recent California cases suggest a much narrower tolerance for appearances of bias than older cases, Jenkins said.
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