California High Speed Rail: an Update for 2013-2014
| Publication year | 2014 |
| Author | By Kathryn Phelan* and John Fox** |
By Kathryn Phelan* and John Fox**
California High-Speed Rail ("HSR") is planned to connect San Francisco to Los Angeles by train in under three hours with speeds over 200 miles per hour by 2029.1 With future extensions to Sacramento and San Diego, the total HSR system will be over 800 miles.2 The California High-Speed Rail Authority ("HSRA"), which was created by the Legislature in 1996, oversees the planning, designing, building and operation of the HSRA.3 Environmental review under the California Environmental Quality Act,4 and the National Environmental Policy Act5 of the proposed alignment of the HSR has been under review for over a decade.6Since the first joint Environmental Impact Report ("EIR")/Environmental Impact Statement ("EIS") was certified by the HSRA in 2005 to approve the Preferred Alignment, lawsuits and controversy have followed.7
In the courtrooms, legislative houses, and meeting rooms, the last year and a half has been as busy for California's HSR project as any in prior years. The HSRA was named in more new lawsuits in 2014 than it was able to get dismissed or settled in 2013. More important than bare numbers, critical issues remain to be decided for HSR in the courts, including whether HSR will be able to use cap-and-trade revenue as a source of funds. This article provides an update on recent case law, administrative actions, and legislative actions.
The lawsuits on the HSR project can generally be grouped into challenges to (1) the Program EIR, (2) the Merced to Fresno Project EIR, (3) the Fresno to Bakersfield Project EIR, and finally, (4) funding for the HSR project. As discussed below, the lawsuits on the Program EIR and Merced to Fresno Project EIR appear to be finally resolved. The lawsuits on the Fresno to Bakersfield Project EIR have just gotten started. As to the funding cases, the HSRA appears to have won the lawsuit that was preventing the use of the almost $9 billion in State bond monies approved under Proposition 1A, the "Safe, Reliable, High-Speed Passenger Train Bond Act" in 2008. The use of cap and trade funds for HSR is still to be determined.
A. Program EIRIn February 2013, the Trial Court ruled that the HRSA finally got the Program EIR right, approving the Pacheco Pass as the accepted route from the Bay Area to the Central Valley in the consolidated cases of Town of Atherton v. CHRSA, (Case No. 2008-80000022), ("Atherton I") and City of Palo Alto v. CHRSA, (Case No. 34-2010-80000679) ("Atherton II").8
These lawsuits involved California Environmental Quality Act ("CEQA")9 challenges to the HSRA's Program EIR of the Bay Area to the Central Valley portion of the EIR (Bay Area to Central Valley High-Speed Train (HST) Final Program EIR ("FPEIR")). Petitioners, among others, included a number of San Francisco Peninsula cities, including the Town of Atherton, the City of Menlo Park and Palo Alto (Atherton II). The Peninsula cities objected to the selection of the Pacheco Pass instead of the Altamont Pass for trains going from the Bay Area to the Central Valley, which caused the need for the HSR to go through the Peninsula.
The Atherton I and II lawsuits resulted in the trial court issuing a writ and supplemental writ requiring HSRA to decertify, revise and recirculate the FPEIR in 2009 and issue a Revised FPEIR in 2011.10
In the November 2009 decision, Judge Kenny found the following deficiencies: inadequate project description of the alignment from San Jose to Gilroy, failure to recirculate after Union Pacific Railroad notified HSRA it was not willing to share its right-of-way, inadequate analysis of land use impacts, and inadequate mitigation of vibration impacts on the Peninsula.11 In a supplemental writ in February 2012, the court found that the Revised FPEIR failed to address significant impacts associated with shifting and narrowing Monterey Highway, and failure to address reduced access to surface streets on the San Francisco Peninsula.12
In April 2012, the HRSA certified a Partially Revised FPEIR.13 Again, the Atherton I and Atherton II petitioners challenged the certification of the revised FPEIR, this time on the basis that it failed to address changed circumstances that could result in the HRSA using a "blended option" where the high-speed train would operate on the same tracks as Caltrain commuter trains between San Francisco and San Jose instead of utilizing a separated four-track system. In rejecting petitioners' arguments, the court noted that petitioners had not asserted that the FPEIR, as revised, failed to address the court's ruling on the writ. Additionally, the court found the arguments were without substantive merit because the FPEIR had in fact identified the "blended option" or a "phased" approach as an option for the Pacheco Pass route or the Altamont Pass route.14Based on this, the court held the revised FPEIR met the requirements of CEQA and the writ, and granted HSRA's motion to finally discharge the writ and uphold HSRA's certification of the FPEIR. 15
The Petitioners in the Atherton I and Atherton II suits were dissatisfied with their partial wins and appealed.16
On appeal, in one of the more interesting developments in the HSR litigation, the Third District ordered supplemental briefing on the issue of whether the 2014 decision by the Federal Surface Transportation Board ("Surface Board") preempted CEQA review of the HSR project altogether.17 The State Attorney General argued that the decision by the Surface Board to treat the project as part of the interstate rail network and take jurisdiction over it resulted in the prevention of CEQA remedies. The AG argued that the project, as such, was subject to the Interstate Commerce Commission Termination Act ("ICCTA"),18 which established the Surface Board and gave it exclusive jurisdiction of railroads "involved in interstate commerce."19 The State cited to the case of City of Auburn v. United States Government (9th Cir. 1998) 154 F.3d 1025, 1031, which it argues concluded that "state-law remedies under a state environmental review law are not available to a third party."20
On July 24, 2014, the Third District rejected the State's arguments that HSR was exempt from CEQA review.21 The court found that generally, the ICCTA preempts state environmental laws, including CEQA,22 but that preemption was not applicable to the HSR project because of the market participant doctrine. The market participant doctrine, recognized by the United States Supreme Court in Hughes v. Alexandria Scrap Corp. (1976) 426 U.S. 794, "distinguishes between a state's role as regulator, on the one hand, and its role as a market participant, on the other."23 When a local or state agency is acting as a market participant they are exempt from federal preemption.24 Finding the State was acting as a market participant, the court found that CEQA review of the HSR was not preempted by the ICCTA.25
Finally, the Third District, upheld the Program EIR against all other remaining claims, in a decision supporting the use of tiering allowing deferral of project level analysis, the substantial evidence standard of review in rejecting competing expert opinions, and the lead agency's discretion in selecting a reasonable range of alternatives.26
B. Merced to Fresno Project EIRThe HRSA certified the Project EIR on the planning and construction of the Merced to Fresno section of the HSR project on May 3, 2012.27 After certification of the EIR, three lawsuits were filed by various public and private entities located within the path of the approved alignment of the Merced to Fresno section for violations of CEQA and on other grounds.
The first lawsuit, County of Madera v. HSRA, a petition for writ of mandate, was filed on June 1, 2012 by the County of Madera, the Madera County Farm Bureau, Merced County Farm Bureau, Preserve Our Heritage, Chowchilla Water District, and farming families and owners of agricultural land in Madera and Merced counties.28 That same day the City of Chowchilla filed a petition for writ of mandate in City of Chowchilla v. HSRA.29 A few days later, on June 4, 2012 several private companies owning property in Fresno and Madera counties that would be affected by the path of the approved high speed rail alignment filed a third petition for writ of mandate in Timeless Investment v. HRSA.30
In a November 16, 2012 decision that probably helped expedite the ultimate settlement of these lawsuits, Judge Frawley denied the County of Madera's motion for a stay to prohibit the HRSA from performing any work related to the Merced to Fresno section of the rail alignment until the CEQA lawsuit was resolved. The court rejected the stay after it found that the petitioners were not likely to prevail in the litigation.31
On January 15, 2013, the petitioners in the Timeless Investments v. HSRA litigation voluntarily dismissed their lawsuit. On January 25, 2013 the Court approved a stipulated judgment between the City of Chowchilla and the HSRA based upon a settlement agreement reached between these parties. Pursuant to that agreement, in exchange for the City of Chowchilla dismissing its lawsuit with prejudice, the HSRA agreed to conditionally pay the City of Chowchilla's fees and costs, and to consider in "good faith" the City's concerns about the HSRA's final development of the rail alignment within the area of the City referred to as the "Wye Area." The payment of attorneys' fees was made contingent upon the City not filing a future lawsuit challenging the HSRA's future approval of a rail alignment in the Wye Area.32
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On April 2, 2013 the Madera County Board of Supervisors voted 3-2 to withdraw from County of Madera v. HSRA. The remaining petitioners filed a stipulated judgment signed on April 18, 2013 by Judge Frawley. The stipulated judgment approved a settlement agreement between the HSRA and remaining petitioners. Pursuant to the terms of the agreement, in exchange...
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