“Facing criticism from opponents for the lack of private investors lining up to finance the $68 billion project, the rail authority asked private firms to respond to a list of questions on how to reduce costs, speed up construction and attract more private-sector investment for a segment from Merced to Burbank, which is scheduled to start operating in 2022,” ABC News reported.

Political challenges

Although the interest has not fundamentally altered the political calculus or the political controversy surrounding the embattled scheme, it has given fans of the bullet train some evidence that it could be more than a sinkhole for public funds.

But the Rail Authority has struggled to convince Californians in many communities that the upheaval promised by the train’s construction and operation are worth the added services. In preparation for a public forum on the so-called Peninsula segment of the line, running through Silicon Valley, the Authority said “it is planning to blend high-speed trains with Caltrain from San Francisco to San Jose to minimize the disruption to local communities,” according to the San Jose Mercury News.

The China connection

California has become something of a proving ground for high-speed rail, with interest running high among some of the most powerful companies and countries in the world.

Elon Musk’s hyperloop design for ultra-fast vacuum-powered mass transit has spawned a test track that will parallel a stretch of the same I-5 freeway intended to guide the state-funded bullet train Gov. Brown has long supported.

And China, one of the biggest international players in high-speed rail, has done its best to become a key player in California’s deployment of the technology. Among the 35 respondents to the Rail Authority’s solicitation for private funds was a group called the Chinese High Speed Rail Delivery Team, the AP reported. Additionally, the Chinese government’s railway conglomerate aced out rival Japan for the state’s other major rail project, the XpressWest train that would connect Las Vegas to Los Angeles commuters willing to take a modest trek to its westerly terminus.

Both moves have taken shape as part of a broader effort by China to establish a big tech-driven infrastructure footprint in the West. “Electric cars from Faraday Future, a project linked to Chinese tech conglomerate Leshi Internet Information and Technology, could roll off a production line in North Las Vegas,” the Las Vegas Sun reported, “if a rumored tax incentive passes a special session of the Legislature that Gov. Brian Sandoval may call. “Sandoval also plans to embark on a trade mission to China in October, to visit Xi’an, Nanjiang, Shanghai and Beijing with governors of other Western states to drum up business in clean technology, taking advantage of the country’s recently announced cap-and-trade program to limit carbon emissions.”

In the meantime, China has kept its eye on the level of interest surrounding the state’s high speed rail endeavor. Reporting on Morales’s reaction to the responses, Shanghai Daily noted that “[a] few of them expressed their interest in helping build the whole Initial Operating Segment (IOS) […] in a package including the civil works, track, infrastructure, stations and rolling stock. But more of them are focusing on one or a few elements, Morales said.”

One workshop was held in San Francisco last week. [See the Palo Alto Online’s account for background information.] The next workshop is planned for this Tuesday, September 15, in San Jose from 4:00 p.m. to 7:00 p.m. at the Roosevelt Community Center. A one hour presentation is planned at 6 p.m. at 901 E. Santa Clara St. San Jose, CA 95116. The Morgan Hill session will be held September 23^rd. The last meeting will be held in Burlingame October 7^th. The agenda for all workshops will be identical, regardless of location.

As background, at the August 2015 board meeting, the High-Speed Rail Authority approved a Request for Qualifications to be sent out. This RFQ covers both the San Jose to San Francisco segment as well as the San Jose to Merced segment. The consultant chosen will manage the corridor activity conducting “environmental analysis and documentation, regulatory permitting and compliance, engineering and preliminary design services.”  Whoever is selected, they are expected to finish the project by December 2017, a very quick process.

Contentious Segments

In the past, both of these segments (San Jose to Merced and San Jose to San Francisco) have been problematic for the Rail Authority. Besides the Peninsula’s vehement opposition to the high-speed rail project, the Merced to San Jose segment, featuring the Chowchilla Wye, was also an area of great contention because of the use of prime farmland and destructive of sensitive environmental areas.

[See the Youtube when Ben Tripousis, Northern California regional director presented the RFQ to the board on August 4, 2015. Here is the document presented at the Rail Authority board meeting.]

Peninsula history

As a reminder, the peninsula’s environmental work stalled for a couple of years due to questions about the joint use of the Caltrain corridor with High-Speed Rail.

This is more commonly known as the blended system first introduced in 2011 by Senator Joe Simitian, Congresswoman Anna Eshoo and Assembly member Rich Gordon, also called the SEG plan. There was extreme unhappiness about the high-speed train coming through the very crowded peninsula area with the real possibility of expansion of the corridor to four tracks.

The SEG plan required no above ground tracks be added to the corridor unless the cities desired that design; and that the high-speed rail plan stay within the current Caltrain footprint. It also required the blended plan be done in one stage. The rail authority had pushed for phased implementation eventually leading to four tracks which is no longer part of the plan today.

Questions of Legality

The high-speed rail board was under the leadership of Curt Pringle in 2011. He and others on the board had mixed emotions about the concept. Questions about the legality of the blended program were sent to the Attorney General’s office twice back in the 2011 by then CEO Roeof van Ark.

This year a public records request was sent to the Rail Authority asking what the result of those inquiries were but they refused to release any AG response, claiming attorney/client privilege.

The question of the legality of the blended system, along with trip time questions and financial viability will be litigated in part two of the Tos/Fukuda/Kings County lawsuit February 2016. [See Tos Trial Brief II on the TRANSDEF website which gives a bit of history about this taxpayers lawsuit.]

In the July 2012 appropriation vote, the state Legislature approved an appropriation of $600 million of Proposition 1A bond funds to Caltrain’s electrification project under the premise that it is a corridor that will eventually operate high-speed rail trains in the future. They also appropriated $500 million for the Los Angeles to Anaheim route though projects were not yet identified for that segment. Neither amount was presented in a funding plan as required in the Prop. 1A ballot measure.

Many, including former Rail Authority Chair Quentin Kopp, have questioned the legality of this appropriation and the idea of the blended system. In a declaration filed for the Tos/Fukuda/Kings County lawsuit, Kopp says he believes “the “track-sharing” arrangement with Caltrain represents one example (Los Angeles to Anaheim represents another) of the Authority’s current alteration of the project from a genuine HSR system.”

Environmental Process

Regardless of that argument, another issue blocking access to the bond funds for the San Francisco to San Jose segment is the non-completion of high-speed rail environmental work required under Prop. 1A on the Peninsula — hence the rush to finish the environmental work described above.

But how they will finish the environmental process is still unclear.

Will the Authority follow the California Environmental Quality Act or use the less stringent National Environmental Protection Act? Or will they use the CEQA process unless challenged in court therefore using the Surface Transportation Board ruling as an “ace in the hole”?

Two years ago, the Surface Transportation Board, a federal agency, exempted the Rail Authority from following CEQA because it is a railroad project under their control. But the end of the story has yet to be written regarding the subject of a CEQA exemption for rail projects as it is expected to be heard, and hotly debate, in the California Supreme Court sometime this year.

There are no American Recovery and Reinvestment Act of 2009 federal grants assigned to the San Francisco to San Jose or the San Jose to Merced segments nor is there private funding available. The project in the Central Valley to the San Fernando Valley currently has at least a $25 billion gap in funding.

The report is a serious attempt of the CHSRA to let the California Legislature know the true status of the program. It includes four pages of “Issues” and 13 pages of “Risks.”

The CHSRA highlighted the project’s groundbreaking, which occurred on Jan. 6:

“The event highlighted the work that is already underway in the Central Valley on Construction Package 1 (CP 1), and underscored the Authority’s commitment to advancing the program on multiple project sections concurrently in order to deliver statewide mobility and environmental benefits sooner.”

However, as CalWatchdog.com noted at the time, the groundbreaking was more appearance than reality, as progress on the project continues at a slow pace. 

The report was enthusiastic. “Crucial to the start of heavy construction, 105, or 28 percent, of necessary parcels have been delivered to the DB [Design Build] contractor,” it said. But that also means 72 percent of the parcels still have not been delivered.

The March 3 Los Angeles Times also reported, “The contractor building the first segment of the California bullet train system said Monday it is seeking compensation for delays in the project and is not likely to start any major construction until June or July — months later than state officials said just weeks ago.”

Lawsuits

The report took up the lawsuits against the project:

• “In December 2014, the Authority and the City of Bakersfield announced that they had reached a settlement agreement to dismiss the city’s California Environmental Quality Act (CEQA) lawsuit.”

• “In February 2015, the Authority announced that it had also reached a settlement agreement with Coffee-Brimhall LLC, a developer entity that owns land in Bakersfield.”

• The CHSRA acknowledged the five remaining lawsuits concerning the Fresno to Bakersfield segment: “While the Authority continues to work with its stakeholders and partners through the remaining CEQA lawsuits, the Surface Transportation Board’s approval of the project section’s environmental document in July 2014 allows the Authority to move forward with construction-related activities within the project section up to 7th Standard Road.”

The future of these lawsuits and other CEQA cases may be determined by a case before the California Supreme Court called Friends of Eel River v. North Coast Railroad Authority. The Legislative Report explained:

“A stay is requested to allow time for the California Supreme Court to decide the Friends of Eel River v. North Coast Railroad Authority case which is currently under review. In Eel River the Court will decide whether CEQA is preempted for a publically owned railroad that is under the jurisdiction of the Surface Transportation Board. Eel River will have implications in the CEQA cases filed against the Authority.”

Electrical connectivity    

Another issue involved the California Public Utilities Commission. The matter was included in the Legislative Report’s lawsuits section, but not in all aspects. According to the CHSRA:

“On March 21, 2013, the PUC issued the Order Instituting Rulemaking (OIR), at the request of the Authority, which initiated a rulemaking proceeding. The stated goal of the OIR was to ‘determine whether to adopt, amend or repeal regulations governing safety standards for the use of 25kv electric lines to power high-speed trains.’”

Under actions taken, the CHSRA wrote:

“The Authority has reached agreement with all parties to the proceeding on all terms of the General Order. The Authority presented the settlement General Order to the PUC on January 26, 2015. The General Order is currently pending adoption by the PUC, with an anticipated adoption at the March 2015 PUC Commissioners meeting.”

However, the CPUC must conduct an environmental report for electrifying the project, which could in fact have implications for the project.  Permits at the earliest are not expected until 2017.  According to the CPUC Report:

“The Initial Operating Segment of the High Speed Rail line is Madera to Bakersfield with a targeted operation date of 2022. This requires electrical connectivity at least 2 years prior, with permits to construct facilities by 2017. To grant such permits, the Energy Division needs to start work no later than 2014-2015 to complete environmental review (usually takes at least a year) and permit review by mid-2017” 

It is not a simple process. The CPUC report described the required involvement of the CPUC, Pacific Gas & Electric, Southern California Edison and the CHSRA for the purpose of carrying out environmental review.

New lawsuit

Absent from the CHSRA’s Legislative Report is the newest suit, filed on Feb. 9, against CalTrain, the Bay Area commuter system. The suit was filed by the city of Atherton, the Transportation and Education Defense League and the Community Coalition on High-Speed Rail.

Among other things, the lawsuit, as CalWatchdog.com reported at the time:

• Seeks to force the board to acknowledge the impacts CalTrain’s project, and the closely associated high-speed rail project, will have on the San Francisco Peninsula. Specifically, it questions the effect of electrification for the high-speed rail project will have on the peninsula.
• Asserts that, by 2040, CalTrain will not be able to accommodate more passengers. Surplus capacity that would otherwise be available to run more CalTrain trains would instead be committed to the high-speed rail project.

Kit Fox

The CHSRA Legislative Report also did not include its alleged violation of the National Endangered Species Act involving the San Joaquin Kit Fox, at least not directly. As CalWatchdog.com reported last month:

“The environmentalist group Defenders of Wildlife labels it ‘one of the most endangered animals in California.’ 

“On Jan. 26, the Sacramento office of the Fish and Wildlife Service of the U.S. Department of the Interior sent the CHSRA a letter about the kit fox’ habitat in the project’s 29-mile-long Construction Package 1. The letter charged the CHSRA and the Federal Railroad Authority with causing ‘the loss of nine acres of suitable habitat for the San Joaquin kit fox, located outside the project footprint … and the destruction of a potential San Joaquin kit fox den.’”

Although not addressing the Kit Fox directly, the CHSRA’s Legislative Report said as a retroactive response:

“The Authority released an RFP for Habitat Mitigation Services in January 2015. The habitat mitigation services will satisfy environmental approvals and federal and State permit requirements related to habitat for federally and State-listed endangered or threatened wildlife and wetlands and waters of the United States…. With the habitat mitigation services contract in place, anticipated in spring 2015, the federal and state regulatory agencies will have the mitigation assurances needed to issue permits for CP 2-3 and CP 4.” 

Cap-and-trade

Finally, the lawsuit over using $250 million of cap-and-trade money to build the high-speed rail project also was not disclosed in the Legislative Report. As CalWatchdog.com reported:

“TRANSDEF charged that cap-and-trade revenues, according to AB32, only can go to reduce greenhouse-gas emissions. TRANSDEF President David Schonbrunn said in the statement, ‘The claimed GHG [greenhouse gas] emissions reductions are a very expensive fantasy,’ because the California High-Speed Rail Authority depends ‘on $30 billion of project funding that the Authority doesn’t have and can’t get.'” 

In sum, although the CHSRA included a great deal in its latest Legislative Report, it also did not include some important information. However, outside the report, it is lawsuits, the state’s financial position and the facts on the ground that will determine the project’s fate.

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. 

Both actions have the same goal: forcing those involved in the high-speed rail project to follow the California Environmental Quality Act.

The first action was a lawsuit filed against the Peninsula Joint Powers Board, which runs CalTrain. The lawsuit was filed by the town of Atherton, the group Transportation Solutions Defense and Education Fund and the Community Coalition on High-Speed Rail.

Among other things, the lawsuit:

• Seeks to force the board to acknowledge the impacts CalTrain’s project, and the closely associated high-speed rail project, will have on the San Francisco Peninsula. Specifically, it questions the effect of electrification for the high-speed rail project will have on the peninsula.
• Asserts that, by 2040, CalTrain will not be able to accommodate more passengers. Surplus capacity that would otherwise be available to run more CalTrain trains would instead be committed to the high-speed rail project.
• Alleges CalTrain’s $600 million in Proposition 1A bond funds, exclusively dedicated for the development of high-speed rail, is vulnerable to legal challenge.
• Alleges CalTrain did not seriously consider less expensive alternatives that offer less environmental damages to the communities.

Alternatives

A further contention is that California law mandates that proposed projects such as this must be compared to viable alternatives, as well as to not building a project.

The intent is to see if there is a less damaging way to accomplish nearly the same result; or that “no project” is best to avoid severe environmental damage.

In this case, plaintiffs insist there was inadequate study of alternatives, such as diesel multiple-unit trains that wouldn’t require destroying trees, which would happen under electric trains’ overhead electric lines.

The DMU alternative was dismissed by the Joint Powers board as inadequate, though it met most project requirements.

Participants in the Lawsuit 

“The town met with CalTrain in an attempt to reach commitment on a number of remaining issues,” explained Atherton City Manager George Rodericks in a statement of why the lawsuit was brought. “CalTrain’s response did not contain sufficient commitment to deter the town from a legal challenge to the” Final Environmental Impact Report.

TRANSDEF explained on its website why it’s joining the lawsuit. And it wrote a letter to the Joint Powers Board, explaining:

“Much of the work of raising top speeds involves straightening curves. If curves are straightened, that means that the catenary [overhead lines] installed for the PCEP [Peninsula Corridor Electrification Project] will be in the wrong location, so it will not work for HSR. Ergo, it is incompatible, thus defeating any claim that the Project meets its Purpose and Need: ‘providing electrical infrastructure compatible with future high-speed rail service.’ …Compatibility with something that has not yet been designed is impossible.”

The CHSRA has not begun an environmental assessment at what is called the project-level Environmental Impact Report/Environmental Impact Statement, and said it would not do that until the CalTrain electrification EIR was buttoned up. The project level EIR for high-speed rail was specifically stopped at the July 2011 CHSRA board meeting.

Said Community Coalition President Jim Janz, a former mayor of Atherton, “The petitioners in this lawsuit want CalTrain to study the impacts, and to study the alternatives, before plunging ahead. That is not only prudent policy-making, it’s what the law requires.”

Appeal

The second action was an appeal filed in the U.S. Ninth Circuit Court of Appeal against a December decision by the Surface Transportation Board exempting California’s rail project from CEQA.

The appeal was made by King and Kern counties, TRANSDEF, the Community Coalition, the Kings County Farm Bureau, the Citizens for California High-Speed Rail Accountability and the California Rail Foundation.

As CalWatchdog.com reported in December:

“In its October Petition for Declaratory Order, the CHSRA had asked the three-member STB to short-circuit ‘state-law-based lawsuits pending in California state court.’ It sought only to stop any court-ordered construction injunction. “The CHSRA added it would abide by any mitigation ordered because of the CEQA process.

“The CHSRA got what it wanted – and more.”

If the STB loses this appeal, California’s state environmental laws will be protected. That precedent could well affect other rail projects, including those by CalTrain, which declared it was under STB rules and not obliged to follow CEQA.

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.