http://almanacnews.com/print/story/print/2011/11/16/california-high-speed-rail-hit-with-legal-setback


Almanac

News - November 16, 2011

California high-speed rail hit with legal setback

by Gennady Sheyner

A coalition that includes Menlo Park, Atherton and Palo Alto scored a legal victory over the California High Speed Rail Authority on Nov. 10 when a Sacramento County Superior Court judge ruled that the state agency has to reopen and revise its environmental analysis of the controversial line.

The ruling by 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.

Judge 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. Judge 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," the judge 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, Judge 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.

The judge 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."

Judge Kenny upheld this position and wrote in the first of his two rulings Nov. 10 that Cambridge's approach is "supported by substantial evidence."

The judge 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 segments and that include a greater level of specificity and engineering detail.

Judge 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 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.

"The two biggest issues in these lawsuits were ridership and route alternatives, and the Court ruled in our favor on both issues," Thomas Umberg, who chairs the rail authority's board of directors, said in a statement.

Members of the coalition, meanwhile, celebrated the 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.

Richard Tolmach, president of the California Rail Foundation, said, "Twice in a row, the Authority ignored the requirements of environmental law."

Go to tinyurl.com/HSR-193 for links to the two rulings.

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