High-speed rail seeks to run over CEQA

This is the first in a series of articles updating the status of the California high-speed rail project in the wake of the California Supreme Court green-lighting bond funding.

Proponents insist a major reason for building the California high-speed rail project is to improve the state’s environment. Yet ironically, the project is aiming to run over state environmental law.

The Official Title and Summary voters read in 2008 when they approved Proposition 1A promised, among other things:

• “Reduces air pollution and global warming greenhouse gases.”
• “Establishes a clean, efficient 220 MPH transportation system.”

But instead of punctiliously following California’s environmental laws, specifically the California Environmental Quality Act, the project is seeking to use federal environmental law to pre-empt state law.

On Oct. 9 the California High-Speed Rail Authority, which heads the project, sent a request for declarative relief to the Surface Transportation Board, part of the U.S. Department of Transportation. The request maintained, “The Board has discretion to issue declaratory judgments to eliminate controversy and remove uncertainty.”

The CHSRA is trying to use federal law to trump stricter state environmental  laws to keep the project moving. Doing so would make moot ongoing environmental lawsuits against the project.

The boulder in the middle of the train track, of course, is that although $3.5 billion in federal money is slated for the project, it was under state law that voters approved Prop. 1A, which authorized $9 billion in bonds.

This is the fourth attempt in two years that CHSRA has attempted to get around California’s environmental laws. Given this new development, it’s worth reviewing the previous three attempts.

First attempt

In its first attempt to get around CEQA, the CHSRA tried to pass more lenient measures during the California Legislature’s closing days in August 2012. The changes would have limited the ability of the public to sue on environmental grounds. But the attempt failed.

On Aug. 16, 2012, a group of 33 state legislators, led by Democratic Assemblyman Jared Huffman (now a U.S. congressman), wrote a letter to Senate President Pro Tem Darrell Steinberg and Assembly Speaker John Perez raising CEQA concerns. The 33 legislators wrote:

“We are writing to express our concerns about proposals that are circulating to weaken California’s most important environmental law, the California Environmental Quality Act (CEQA), in the final days of this session. We urge you to oppose any proposal to create significant new exemptions or otherwise re-write CEQA in the days ahead….

“Unfortunately, the proposal we have seen and heard about reflect major changes that have not been vetted and are being advanced by special interests in an end-of-session power play. In rejecting these proposals, we urge you to give this issue the serious, thoughtful and transparent deliberation it deserves….”

The “end-of-session power play” is what’s called the “gut-and-amend process.” Under it, a bill from earlier in the year, often of an entirely different subject, is “gutted” of its wording at the last minute, then “amended” with new wording entirely different, and of which legislators have no time to review.

The letter continued:

“As you know, this 42-year-old law has made countless projects better by requiring consideration of environmental impacts. It has protected communities from pollution and allowed citizens to have a voice in decisions their neighborhoods, public health, and quality of life. The protections CEQA affords are too important to change without careful, thoughtful analysis and review by stakeholders, the public, and a full, deliberative legislative process.”

Second attempt

The second attempt to get around CEQA came in June 2013, when the CHSRA filed a request with the 3rd District Court of Appeal in the city of Atherton’s suit against the project. The CHSRA wanted the court to recognize the federal pre-emption of jurisdiction.

The court ruled in favor of the CHSRA on the environmental challenges in the lawsuit, but did not agree that federal preemption exists. The clear decision explained:

“This case is unusual to say the least; the state entity, represented by the state’s Attorney General [Kamala Harris], is inexplicably arguing for federal preemption instead of defending the application of state law.

“In making this argument, the Authority ignores that its power is circumscribed by the provisions of Proposition 1A, the voter-approved bond measure to fund the HST [high-speed train]. The Authority’s discretion is not unfettered; it must follow the directives of the electorate. As explained ante, one of those directives is compliance with CEQA.

“The Authority, as a public entity, is required to comply with CEQA on all projects. The Legislature did not exempt the HST from compliance with CEQA. The reasonable inference, therefore, was that the Legislature intended the HST to comply with CEQA and that Proposition 1A was presented to the voters with the expectation that CEQA would apply and the voters ratified the proposition based on this expectation.

“This reasonable inference is reinforced by various provisions of Proposition 1A that refer to past and future environmental studies for the HST.”

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The second article in this series will look at the third attempt of the CHSRA to get around CEQA.

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Kathy Hamilton is the Ralph Nader of high-speed rail, continually uncovering hidden aspects of the project and revealing them to the public.  She started writing in order to tell local communities how the project affects them and her reach grew statewide.  She has written more than 225 articles on high-speed rail and attended hundreds of state and local meetings. She is a board member of the Community Coalition on High-Speed Rail; has testified at government hearings; has provided public testimony and court declarations on public records act requests; has given public testimony; and has provided transcripts for the validation of court cases.