Uploaded: Thursday, November 10, 2011, 10:42 PM
High-speed rail hit with legal setback
Lawsuit from Menlo Park, Atherton, Palo Alto forces rail authority to revise environmental analysis
|A coalition that includes Menlo Park, Atherton and Palo Alto scored a legal victory over the California High Speed Rail Authority Thursday when a Sacramento judge ruled that the state agency has to reopen and revise its environmental analysis of the controversial line.
The ruling by Sacramento Superior Court Judge Michael Kenny follows three years of litigation by the Midpeninsula cities and various nonprofit groups, which challenged the rail authority's selection of the Pacheco Pass as its preferred alignment for the San Francisco-to-Los Angeles line. Menlo Park and Atherton were also involved in an earlier lawsuit, which forced the rail authority to "decertify" and revise its program-level Environmental Impact Report (EIR). The authority certified the document for the second time in September 2010.
Kenny's latest ruling means the rail authority now has to go back for more revisions -- a process that could further extend the timeline for a project whose estimated price tag now stands at $98.5 billion. He agreed with the petitioners' contention that the rail authority failed to sufficiently analyze the traffic impacts of the proposed line at Monterey Highway south of San Jose.
In its revised program-level EIR, the rail authority had shifted the rail line's proposed alignment to address Union Pacific Railroad's opposition to having high-speed rail in its right-of-way. The shift would require Monterey Highway south of San Jose to be narrowed. Kenny found that the revised EIR "fails to adequately address the traffic impacts associated with the narrowing of the Monterey Highway."
"The traffic impacts stem directly from the fundamental choice between the Pacheco Pass and Altamont Pass alignments connecting the Central Valley and Bay Area and are required to be addressed at the program level," Kenny wrote.
He also found that the rail authority did not include adequate analysis in the EIR of traffic impacts at streets along the Caltrain right-of-way.
The petitioners hailed the ruling as a major victory in their long legal battle against the rail authority.
"In rejecting the EIR, the Court has upheld the principle that significant project impacts cannot be swept under the rug for later consideration, after the key decisions have already been made." Stuart Flashman, the lead counsel for the coalition, said in a statement.
At the same time, Kenny sided with the rail authority on a number of key issues. He rejected the coalition's arguments that the rail authority had failed to respond to public comments in the EIR and that it should have considered more alternatives. He also found that the rail authority's analysis of design alternatives complies with state law.
Kenny also declined to get involved in the dispute over the rail authority's ridership projections, which have been criticized by the Institute for Transportation Studies at UC Berkeley and by the Palo Alto-based watchdog group Californians Advocating Responsible Rail Design. Critics had argued that the rail authority's consultant, Cambridge Systematics, used flawed methodology in calculating ridership projections.
The rail authority had argued that the dispute between ITS and Cambridge over ridership methodology is a "classic disagreement between the academician and the industry practitioner.
"In the Authority's view, the professional opinion of the industry practitioner carry more weight in this particular 'real world' context," the rail authority's 2010 letter to Sen. Alan Lowenthal stated.
Kenny upheld this position and wrote in the first of his two Thursday rulings that Cambridge's approach is "supported by substantial evidence." The dispute over ridrship, he wrote, "represents the classic disagreement among experts that often occurs in the CEQA context" and said the Court "declines to interfere with Respondent's (rail authority's) discretion to adhere to Cambridge Systematics' ridership model despite the criticisms presented by Petitioners' expert and ITS."
Kenny ruled that these factors did not require the rail authority to re-circulate its program-level EIR -- a voluminous document that describes the voter-approved project and analyzes various alignments. But he found that the rail authority should have analyzed in the document the traffic impact on streets near the Caltrain right-of-way. The rail authority was planning to conduct this analysis later, in the "project-level EIRs" -- environmental documents that focus on individual segment and that include a greater level of specificity and engineering detail.
Kenny wrote in his second ruling that this analysis should be conducted in the broader document because it is pertinent to the selection of the Pacheco Pass alternative. He wrote that the "loss of traffic lanes as a result of placement of the high-speed-rail right-of-way is more than just a design element appropriately handled in a second-tier project-level analysis."
"Instead, it appears that the permanent loss of traffic lanes is a direct consequence of the physical placement of the high-speed rail right-of-way in the Pacheco Pass alternative and, consequently, must be analyzed in the context of Respondent's programmatic EIR."
Given the split ruling, both sides in the lawsuit issued statements Thursday celebrating victory. While the coalition touted the court's decision to force the rail authority to once again revise its program-level EIR, the rail authority emphasized the court's validation of its ridership model and its response to public comments.
Thomas Umberg, who chairs the rail authority's board of directors, issued a statement saying he is pleased that the Court ruled in the authority's favor on a number of issues, including the authority's discretion in rejecting alternatives proposed by the coalition, its response to public comments and the consistency of the rail authority's alternatives analysis with state law. He called Kenny's ruling "a big step forward" for the project.
"The two biggest issues in these lawsuits were ridership and route alternatives, and the Court ruled in our favor on both issues," Umberg said in a statement. "Additional CEQA (California Environmental Quality Act) work may be needed, but that work appears to be focused and manageable and the Authority will comply fully with CEQA."
Members of the coalition, meanwhile, celebrated Kenny's ruling for requiring the rail authority to once again revise the document that selects the Pacheco Pass. They have argued that the Altamont Pass in the East Bay is a more viable alternative and that the rail authority used faulty ridership projections in choosing Pacheco.
In addition to the three Midpeninsula cities, the coalition in the second lawsuit includes the nonprofit groups Planning and Conservation League, the Transportation Solutions Defense and Education Fund, the California Rail Foundation and the Community Coalition on High-Speed rail. The association Midpeninsula Residents for Civic Sanity and Patricia Louise Hogan-Giorini were also on the list of petitioners.
Gary Patton, an attorney with the Planning and Conservation League co-counsel for the petitioners,said in a statement that the court's decision "tells the California High Speed Rail Authority that it can't keep ignoring the public's right to participate."
Richard Tolmach, president of the California Rail Foundation, said, "Twice in a row, the Authority ignored the requirements of environmental law."
"The Judge found they still have not done a proper study," Tolmach said in a statement.
Links to the two rulings are available [transdef.org/Blog/Whats_hot_files/1dc6d04d460dc85561cb374ff7da78ae-38.html here.
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Posted by UH OH, a resident of another community, on Nov 12, 2011 at 6:38 am
The above article has to be revised before read.
It seems that another look at HSR is already in the offing for our areas being that our roads are in such bad shape the government has not the 500 BILLION dollars to repair just the roads in order to get around the USA.
Now, plans are for a revisal of all the plans to have multiple HSR systems put back on the blackboard in order for people to be able to communte for future jobs.
Airplanes are out, the glamor routes for the train are now being thrown out, and we may have the HSR coming up the roads through our beloved towns.