High-Speed Rail

July 24, 2014

Appellate court upholds environmental work for high-speed rail via Pacheco Pass

State appeals justices on Thursday upheld a lower court's approval of an environmental impact report that selected the Pacheco Pass between Gilroy and Los Banos as the preferred corridor for high-speed trains between the Bay Area and the San Joaquin Valley.

The 3rd District Court of Appeal in Sacramento heard the appeal by the Bay Area town of Atherton and the city of Palo Alto. The two communities were challenging a 2012 ruling by Sacramento County Superior Court Judge Michael Kenny to approve the California High-Speed Rail Authority's environmental impact report for the Bay Area-to-San Joaquin Valley section of the proposed statewide rail network.

The rail agency adopted its first "program-level" environmental report in 2008, outlining general corridors for the bullet-train system that is intended to someday connect San Francisco and Los Angeles through the San Joaquin Valley, as well as future phases to Sacramento and San Diego. More specific and detailed routes were to be studied in later "project level" environmental impact reports. That first program-level report identified the Pacheco Pass as the preferred corridor alternative instead of the Altamont Pass.

Atherton and other communities along the San Francisco Peninsula successfully challenged that first program EIR in Sacramento County Superior Court. That forced the rail agency to redo the environmental analysis for the Bay-Valley segment, which was certified in 2010. That revised report was also challenged in the Sacramento County court.

The Peninsula communities alleged that the revised report for the Bay-Valley section failed to study in detail where tracks would be elevated on the Peninsula, used flawed revenue and ridership models, and did not consider an adequate array of corridor options, including one proposed by outside consultants.

Justices Elena Duarte, Cole Blease and William J. Murray Jr. rejected those assertions.

"We hold the Authority properly used a program EIR ... and deferred site-specific analysis such as (elevated tracks) to a later project EIR," the court wrote. "The challenge to the revenue and ridership modeling presents a disagreement among experts that does not make the revised final (report) inadequate."

And "the authority studied an adequate range of alternatives," the justices wrote. "It was not required to analyze the (outside consultant's) alternatives because they were infeasible or substantially similar to those already studied."

The decision represents only a partial victory for the rail authority, however, because the justices declined to dismiss the case altogether as the agency had asked. The rail agency unsuccessfully argued that federal law should take precedence over the more stringent California Environmental Quality Act -- the law that was the basis of the contested environmental report and the Atherton lawsuit.

The justices brushed aside the authority's contention that the National Environmental Policy act should pre-empt CEQA. They observed that while the federal Surface Transportation Board last year asserted regulatory jurisdiction over the California project, "it is the State that is constructing the rail line, financed by bonds which were approved by the State's electorate in Proposition 1A."

Prop. 1A is the $9.9 billion high-speed rail bond measure approved by California voters in 2008. Duarte, Blease and Murray added that Prop. 1A requires the high-speed train project to comply with the state environmental law, and noted that "from at least 2000 to the present, the authority has complied with CEQA" in its planning for the rail project.

Stuart Flashman, an Oakland attorney representing the Peninsula communities, described the appellate decision as "half a loaf."

"My clients are obviously disappointed that the court rejected the challenges to the program EIR," he said Thursday. "However, we are relieved that the court rejected the authority's argument that, with the federal Surface Transportation Board taking jurisdiction, CEQA compliance was pre-empted by federal law."

Flashman said he believed the judges' ruling on the issue of state law versus federal law was the more important part of Thursday's opinion "because it means that the high-speed rail authority will still have to comply with CEQA's stringent requirements for protecting the environment, rather than the lower standard set by federal law."

Lisa Marie Alley, a spokeswoman for the rail authority, said the ruling vindicated the agency's compliance with environmental law in the Atherton case.

"The authority remains committed to developing a high-speed rail program that will connect the major regions of the state, create jobs, reduce air pollution and preserve agricultural and protected lands in compliance with environmental laws," Alley added.

The Atherton case was one of three high-speed rail cases that have been pending with the 3rd District Court of Appeal. Rulings are still awaited on:

One portion of a lawsuit filed by Kings County farmer John Tos, Hanford resident Aaron Fukuda and the Kings County Board of Supervisors alleging that the rail authority's 2012 business plan for the statewide bullet-train program violates Prop. 1A. The rail agency appealed Kenny's lower-court ruling that the plan failed to live up to Prop. 1A requirements that the plan identify all sources of money needed for its initial operating segment from Merced to the San Fernando Valley, and the law's mandate that the agency complete environmental certification for the Merced-San Fernando Valley segment before beginning any construction.

The rail authority's appeal of Kenny's refusal last fall to validate the sale of Prop. 1A bonds needed to finance the first stages of construction, expected to begin this summer in the Madera-Fresno area. The judge found that state officials failed to consider any evidence or make any formal findings that selling bonds was necessary or desirable at the time.

The appeals court already cleared the way for another piece of the Tos/Fukuda/Kings County lawsuit to move forward. A case management conference will be held today in Kenny's Sacramento courtroom on a possible trial over whether the rail system can operationally comply with Prop. 1A. The lawsuit asserts that a plan to share tracks with commuter train lines in the Bay Area makes the project substantially different than what voters approved in 2008, and that the trains won't be able to meet the law's requirements for a nonstop trip from downtown San Francisco to downtown Los Angeles in 2 hours 40 minutes or less or be able to operate without subsidies from the state.

Flashman, the attorney for Atherton and Palo Alto in their appeal, also represents the Kings County parties in the other two cases awaiting decisions from the court.

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