Fast Rail's Iffy Ridership Claims

DE C. 1, 2010

By ANTHONY PIGNATARO

In one of the many examples of inefficiency surrounding the proposed California High-Speed Rail system, there are currently two active lawsuits, largely consisting of the same parties and many of the same issues, arrayed against the project authority. According to Stuart Flashman, the Oakland attorney who represents the plaintiffs – namely, the cities of Atherton, Menlo Park and Palo Alto, along with numerous nonprofit groups and activists – the goal of the suits is the same: “Get the High-Speed Rail Authority to do things right.”

Indeed, the more recent of the two suits, filed Oct. 4, alleges that the rail authority did not provide “legally adequate review under the California Environmental Quality Act,” approved an environmental impact report that “did not have an adequate project description, did not give adequate consideration to the Project’s impacts on the environment, failed to propose adequate mitigation measures” and “failed to provide a fair and adequate consideration of feasible alternatives.”

Specifically, these cities and residents are motivated by the rail authority’s desire for the so-called Pacheco Pass alignment, which would travel from San Jose to San Francisco in all likelihood will carve a pretty wide swath through the plaintiff neighborhoods. In 2008, they sued the rail authority, alleging pretty much the above. In November 2009, Sacramento Superior Court Judge Michael Kenny ruled that the authority had to go back and redo some of its EIR. The authority did that, but in the meantime Flashman and his clients discovered that the ridership model used in the EIR was apparently way off base. When the rail board approved the final EIR on Sept. 2 of this year without making any changes to the ridership model, Flashman and his clients filed the second lawsuit.

“Since they’re mostly the same plaintiffs and same issues, we say deal with the lawsuits together,” said Flashman. “But the rail authority says no, deal with the first suit, get that done. Then, if there are still issues, deal with the second one.”

Rachel Wall, the high-speed rail authority’s spokesperson, declined to comment on the pending litigation. In any case, the high-speed rail board will take up the two lawsuits in closed session during their upcoming Dec. 2 hearing.

The ridership models used by the high-speed rail authority are at the heart of the lawsuits. Where the tracks will go, what kind of trains to buy, which cities will face impacts, and to what extent – all these questions hinge on just how many people end up using the 800-mile bullet train network, which will cost something between $43 billion and $90 billion.

“We think that’s an enormous problem,” Flashman said. “The UC [Berkeley] study says the ridership numbers aren’t accurate and shouldn’t be trusted. They didn’t see evidence of a conscious bias, but still, it said it shouldn’t be trusted. All the issues need to have good ridership modeling. But what they’re trying to do is the equivalent of flipping a coin and that’s not how you make a $50 billion decision.”

The high-speed rail authority says that by 2030, 117 million people will be riding the bullet train rails between Los Angeles and San Francisco. That comes out to about 25 million trips a year.

Basically, Flashman alleges, the high-speed rail authority used two models to predict these numbers.The first, which appeared in the environmental impact report and was critiqued by an outside review panel, proved to be unsatisfying to the authority. There is no current domestic bullet train network that they can compare their ridership numbers to, but they can run comparisons with regular train and air travel rates. When its model didn’t mirror this reality, the rail authority apparently made some new assumptions, plugged in some new numbers, and then began using a different ridership model – one that wasn’t reviewed by an outside panel or published.

“They say this is normal part of validation,” Flashman said. “And that there was no reason to go back to the panel. But they made dramatic changes to coefficients – some, by a factor of five.”

The lawsuit includes a number of analyses written by consultants looking at the ridership models. One of them, “Gamed Traffic Date Endangers High-Speed Rail Project,” was written Feb. 26 of this year by California Rail Foundation (CRF) president Richard F. Tolmach (CRF is a party to the lawsuits).

“Ridership claims of the California High-Speed Rail Authority (HSRA) have strained the credulity of transportation industry observers for the past decade,” Tolmach wrote. “However, until recently the public was unaware of any substantial problem with the data because supporting detail was largely hidden in technical supplements. Massive total figures were cited by the Authority, but breakdowns were not readily forthcoming. This changed recently because legislative demands that the HSRA planning process become more transparent.”

Flashman says Elizabeth Alexis, an economist with the Palo Alto-based Californians Advocating for Responsible Rail Design (CARRD, which is not a party to the lawsuit), also played a key role in discovering that the authority was using two ridership numbers.

“I have to give her tremendous credit,” Flashman said. “They tried to brush her off. It was really kind of disgusting, frankly. But she wanted to see the model. She was puzzled, looked at the ridership model, and said it didn’t smell right. She said it was garbage, and passed it on to us.”

Flashman and the plaintiffs handed the new, previously unknown ridership model to a Vermont-based consultant named Norm Marshall. His report, dated Aug. 30, 2010, is uncompromising, and at various times says the authority’s modeling program is “invalid,” “incoherent” and “contains many errors.” Marshall took special umbrage at the authority’s insistence in its official response to EIR comments that the new ridership model “has been publicly available,” even if it wasn’t published as part of the EIR process.

“Documenting one model and applying a fundamentally different model violates the most basic standards of professional practice,” Marshall wrote. “The implication in the response document that the burden is on the public to discover a discrepancy between published documentation and the model applied is ludicrous.”

The upshot of all this is made pretty clear in the most recent lawsuit filed against the rail authority. “If CHSRA is not enjoined from moving forward to implement the Project and from undertaking acts in furtherance thereof, and specifically releasing one or more program-level Draft EIRs, PETITIONERS will suffer irreparable harm for which there is no adequate remedy at law in that CHSRA will move towards constructing a high speed train system including the Pacheco Pass Alignment, with attendant significant environmental impacts, without having first conducted adequate environmental review, which might have avoided or mitigated some or all of those impacts.”

In the meantime, Judge Kenny will decide whether to consolidate the two lawsuits on Jan. 14, 2011.