California, CEQA / NEPA Issues, High-Speed Rail

From AB 3034 to November 4

As was certain to be the case, the presence of the $9.95 billion high speed rail bond measure on the November 4, 2008 ballot (as Proposition 1) has given rise to a multidimensional set of entwined political and legal battles. The California High Speed Rail Authority’s largely politically-driven dismissal of the Altamont alignment and formal adoption of the Pacheco alignment — the latter of which has trains zooming through virgin territory, bypassing millions of residents in the East Bay and north Central Valley, and forcing an unnecessarily long, roundabout connection between the Bay Area and Sacramento — comes much to the delight of Quentin Kopp, Rod Diridon, and San Jose politicos, who will not only enjoy HSR service patterns in which every train traveling between San Francisco and Los Angeles is routed straight through San Jose, but who also, thanks to the southern and western skew of the Pacheco alignment, will still have at their disposal an untarnished eastern shore of the Bay through which to slip the multibillion dollar BART extension from Fremont/Warm Springs, through Milpitas and downtown San Jose to Santa Clara.

Formal adoption of the Pacheco alignment and other concerns have put transit advocates and environmentalists — natural allies of high-speed rail, who, in fact, have long supported the idea of building such a system in California — in the awkward position of having to decide whether or not they should even support the bond measure this November. It is this idiosyncratic situation that has given rise to a match not quite made in heaven — Peninsula NIMBYs, rail advocates, and environmental organizations — joining forces in a lawsuit to challenge the final EIR, which the High Speed Rail Authority certified just last month, in July. The laundry list of issues — which included long-standing complaints about the Grasslands Ecological Area, and the EIR’s inherently biased treatment of rail operations using the Altamont alignment — asserted that the impacts to Menlo Park, Atherton, and other Peninsula cities lining the Caltrain corridor were understated, and that impacts associated with operating either near to or further from the Union Pacific right of way were insufficiently analyzed. The parties also took advantage of the opportunity to raise procedural complaints; in particular, that the High Speed Rail Authority short-circuited required public commentary. Guidelines are provided that clarify how the California Environmental Quality Act (CEQA) is to be implemented, and within those Guidelines, California Code of Regulations § 15088.5 requires that an EIR be recirculated for further public comment if “significant new information” becomes available that forces an agency to make substantial changes to the EIR prior to certification, but after the document has been made available to the public. The claim here was that such new information included not just global warming impacts, but also Union Pacific’s refusal to share its right of way with high speed trains. But how much practical significance this information actually carries is another question. High speed trains will operate in grade-separated conditions, likely adjacent to the Union Pacific right of way. Such operation would basically eliminate the alleged safety hazard impacts. Even if the adjacent rights of way were to significantly diverge due to narrow constraints, necessary parcels can be acquired, and the impact of land acquisition could be deemed unavoidable and acceptable in light of the project benefits enumerated in the Statement of Overriding Considerations, included in the EIR.

Anyway, it’s a bit of a mess, and the above paragraph does not even exhaust the list of complaints and doubts that the High Speed Rail Authority’s imperfect management of the project to date has elicited. For those who appreciate why a high speed rail system is so important to the future of California (very likely most people bothering to read this post), but who are nonetheless frustrated by the extent to which politics have muddied clean, legitimate transportation analysis, it all really boils down to this question: do we let the perfect be the enemy of the good, by waiting even longer for a superior bond measure, perhaps better management of the project, and then suffer the prolonged delays and increased costs associated with biding time? Or do we make do with what we have now, accept it, move on, and try to mitigate whatever flaws we can?

That question is perhaps easier answered, thanks to Assemblymember Cathleen Galgiani’s bill, AB 3034, which seeks to amend the Proposition 1 ballot measure in a way that would make the details of the project more palatable as compared to how Proposition 1 currently stands. California legislators have battled since the bill’s introduction in February 2008 over the provisions and language in this bill. But earlier this week, the Senate approved the bill, bouncing it back to the Assembly. The latest version forwards along other changes, including Senator Leland Yee’s provision for bond proceeds first be applied to Phase 1, the SF-LA trunk via Pacheco; it allows the High-Speed Rail Authority to allocate funds to other corridors, as long as doing so does not have an adverse impact on constructing the primary SF-LA trunk. Also, $950 million are to be allocated for capital improvements to commuter and intercity rail, e.g. in the Altamont corridor. In addition, the Authority is required to submit a new business plan by September 1, 2008 (moved forward from October 1), and it includes language requiring independent peer review of the Authority “for the purpose of reviewing the planning, engineering, financing, and other elements of the authority’s plans and issuing an analysis of appropriateness and accuracy of the authority’s assumptions and an analysis of the viability of the authority’s financing plan” (sec. 2). The bill goes right to specifying the required areas of expertise of members of the peer review group, including familiarity with foreign high-speed rail projects.

In order for these reconciliatory changes to be added to the Proposition 1 bond measure for the November ballot — creating a revised Proposition 1A — the revisions must be approved by the Assembly and the Governor by August 11. Yes, that would be this upcoming Monday, in two days. On that note, check out this special weekend-edition action alert right now.


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