This is an ‘expedited’ review? Nerve-wracking times on bullet-train front

Nine weeks ago, the news seemed promising on the bullet-train follies front. Now the picture looks a bit murkier.

On Jan. 24, Gov. Jerry Brown and Attorney General Kamala Harris asked the California Supreme Court to conduct an expedited appeals process that considered the state’s newly filed challenges to a tentative ruling in August and a finalized opinion in November from Sacramento Superior Court Judge Michael Kenny.

The respected veteran judge concluded that the state High-Speed Rail Authority did not have a legal business plan because it had not identified reliable funding for the 300-mile “initial operating segment,” a cost the authority earlier pegged as $31 billion. Kenny also said the state had not completed adequate environmental reviews for the initial segment.

In a strategy that on its surface seems beyond peculiar, the office of Attorney General Kamala Harris did not challenge the core premise of Kenny’s tentative ruling — that the project didn’t have a legal business plan. Instead, the AG merely said the project could continue for now with the state using federal grants that were already in hand.

But after Kenny reacted by putting out a final judgment that found, yunno, the project still didn’t have a legal business plan, the sniping started from the governor’s office and state Democrats. After a month, it led Harris and Brown to seek an expedited review. In February, the state Supreme Court agreed to review their request — but assigned the chore to the 3rd District Court of Appeal. On Feb. 15, the appellate court said sufficient issues had been raised about Kenny’s ruling and the importance of timeliness to the project and that it would conduct an expedited review.

I thought and still think the most likely explanation for this shoddy legal work is that the governor — playing 3-D chess to the rest of the world’s checkers — wanted the dubious, controversial project killed off ASAP. Lawyers I talked to with no stake in the case expressed disbelief that Kenny would hold what’s known as a “remedies” hearing only to have the state provide no remedies to the legal deficiencies he cited in his tentative ruling.

An unexpectedly slow ‘expedited review’

Remember, in its first appeal — when it was supposed to make its full case — the state didn’t dispute that it was breaking the law. This alone prompted some observers to predict the appellate court would rule within weeks in favor of bullet-train opponents.

Nine weeks later, however, the appellate court still is taking testimony and reviewing evidence. A quick decision affirming Kenny didn’t happen. It sounds to me like this case will drag along — with nothing “expedited” about it.

In the big picture, nothing has changed. The bullet train has no funding options after it blows through its initial $13 billion or so in secured state and federal funding. No investors will come forward without the possibility of taxpayer subsidies to protect them if the project goes south, and such subsidies are against state law. In the sequester era of sharp limits of domestic discretionary spending, Congress certainly isn’t going to fund a hugely costly public works project just for one state.

But in the medium picture, if the appeals judges overturn Kenny or in other ways muck with his opinion, we could soon see the state spends billions of dollars on an initial segment of track for a project that will never be completed.

Stranger things have happened. Every day the “expedited review” drags on makes me worry more that the hoped-for summer 2014 denouement to the bullet-train insanity might not happen. Instead, we’ll have it to kick around for at least another year.

On the bright side, if the Brown administration really does start the initial segment in the middle of nowhere without future funding anywhere in sight, maybe then we’ll finally see the establishment ninnies stop proclaiming Jerry to be a good governor just because budgets pass on time.

A $13 billion abject debacle is pretty tough to ignore.