California's high-speed rail system surged past a major legal obstacle this week when a Sacramento Superior Court judge tossed out a long-simmering lawsuit from the Central Valley.
The 2011 suit by John Tos, Aaron Fukuda and the County of Kings, maintained that the proposed rail system violates the provisions of Proposition 1A, a 2008 bond measure that allocated $9.95 billion for the San Francisco-to-Los Angeles rail system.
By revising the design of the system so that high-speed rail will now share a set of tracks with Caltrain along the Peninsula, the agency has strayed from the plans that were presented to the voters before the 2008 vote, attorneys for the plaintiffs argued during a three-day hearing in Sacramento in February. The initial plan called for a four-track alignment between San Francisco and San Jose.
The change, the plaintiffs have argued, is significant because the blended system would undermine the rail system's ability to achieve the state-mandated goal of going from San Francisco to Los Angeles in two hours and 40 minutes. This would make the rail system ineligible for the bond funds and for federal funds, which are contingent on having state money being available.
In a judgment issued March 4, Judge Michael P. Kenny concurred that the California High Speed Rail Authority does not have sufficient evidence at this time to show that it can comply with all of the requirements of the 2008 bond. The authority, which is charged with building the $64 billion project, has not yet provided the analysis of the trip time from San Jose to the San Francisco Transbay Terminal (its analysis still relies on San Francisco's lone Caltrain station at 4th and King streets, which is about 1.3 miles south of Transbay Terminal), Kenny noted. Nor has it shown that it can achieve a five-minute headway (the amount of time between trains), as mandated by law.
However, Kenny wrote, the rail authority "may be able to accomplish these objectives at some point in the future." He called high-speed rail an "ongoing, dynamic, changing project" and concurred with a recent ruling from the state Court of Appeal, which found that because the project is in flux, it cannot determine whether the project would meet the requirements of the Bond Act.
"There is no evidence currently before the Court that the blended system will not comply with the Bond Act system requirements," Kenny wrote in his ruling. "Although Plaintiffs have raised compelling questions about potential future compliance, the Authority has not yet submitted a funding plan seeking to expend Bond Act funds. Thus, the issue of the project's compliance with the Bond Act is not ripe for review."
Without the necessary analysis, Kenny reasoned, it is premature to determine whether the proposed system would meet the requirements of the 2008 bond. There are, as of today, "still too many unknown variables, and in absence of a funding plan, too many assumption that must be made as to what the Authority's final decisions will be."
By denying the plaintiff's request that the project be halted, Kenny handed a massive victory to what has been a deeply divisive and controversial project. While supporters, including Gov. Jerry Brown and the Democratic majority in the Legislature, consistently laud high-speed rail as a much needed solution to ease traffic congestion, create jobs and reduce greenhouse-gas emissions, critics have panned it as a "boondoggle" that has nowhere near the funds it needs to become a reality.
Palo Alto officials had initially supported the project but ultimately turned against it, passing in 2011 a unanimous resolution calling for the project's termination. At the time, residents and council members raised doubts about the system's financial projections, ridership estimates and proposed alignment, which initially called for four tracks, with an elevated berm in the middle for the new bullet train.
By shifting to the blended approach, which was first proposed by Peninsula lawmakers in 2012, the rail authority has helped qualm some of these anxieties. The project also picked up some momentum last month, when the rail authority released a new business plan showing the price tag dipping from $67.6 billion two years ago to $64.2 billion.
The new business plan also announced a major change of direction for the rail authority: Rather than launching construction of the line exclusively in Central Valley, the agency now plans to build the first operating segment between San Francisco and Bakersfield.
In presenting the business plan to the rail authority's board of director's Tuesday morning, rail authority CEO Jeff Morales called the new proposal "the game changer, in terms of delivering the program."
The business plan relies mostly on bond funds and on proceeds from the state's cap-and-trade program for building the first operating segment, between the Bay Area and Central Valley. Rail officials hope further improvements and expansions would be financed, at least in part, by private investments and federal contributions.
"For the first time, within available resources, we can actually project out to delivering an operating system," Morales told the board Tuesday.
The board voiced no major concerns Tuesday about the dramatic change of direction in the new business plan. Board member Daniel Curtin said he is "very excited about the new development," which he said would bring new economic opportunities to the two regions that would be connected by high-speed rail.
"We all see the economic pressures being put on the Bay Area by Silicon Valley," Curtin said. "This is a whole change in how that can be approached that, really to me, is the first signal of what high-speed rail will do for California."
Board Chair Dan Richard agreed and lauded the plan for laying out for the public "how we can build the system."
"What is really here, is the sense that we can build this now," Richard said.