Passed in 1970, CEQA requires state and local agencies to assess the environmental impact of projects and, if possible, mitigate these impacts. While some argue it merely protects the environment, CEQA has attracted critics from both sides of the political spectrum. It’s blamed for contributing to the state’s insufficient housing stock and some argue it has resulted in frivolous red tape and litigation that bogs down and deters development.

According to the study, however, CEQA doesn’t come into play unless approval of the development is at the discretion of the local government.  “As of right” development – projects that need only to meet zoning and planning regulations – do not generally trigger the CEQA process.

In the five cities studied – Oakland, Palo Alto, Redwood City, San Francisco and San Jose – only 23 of 287 projects required a full environmental impact report.

The crux of the problem is that all the cities studied required discretionary review for residential projects. Some of the cities maintained minor exemptions, such as for single family homes, while San Francisco had no exemptions. Combined with the inefficiencies resulting from the byzantine review processes of these cities, developers face significant hurdles when embarking on projects.

“A single project might need to obtain Design Review approval and a Minor Variance from the Director of the Planning Department and a rezoning from the City Council. This requires navigating multiple levels of local government where only one approval process would be sufficient to pull the project within the scope of local discretion.”

The result is that more land use/planning approvals were issued than the number of projects. Additionally, parceling up the land would lead to even more review processes.

Even when cities use the same regulatory tools, the outcomes can vary drastically. Both Oakland and San Francisco rely on Community Plan Exemptions to mitigate CEQA compliance obligations. Yet the process takes only 7 months in Oakland, as opposed to 23 months in San Francisco.

The authors concluded that “these five local governments are choosing to opt into CEQA through their choice to embed discretionary review into the entitlement process,” and “the problem (and potential costs) associated with environmental review do not appear to originate with state environmental regulation.”

The implications of the study are a bottom-up and local focus might do more to ameliorate the state’s affordable housing shortage than the more popular top-down, “reform CEQA” approach.

“This is much more than CEQA,” Eric Biber, one of the study’s authors, told the L.A. Times. “Really if you just went after CEQA, you’re not going to solve the problem.”

The California High-Speed Rail Authority’s rough year continues with the departure of another top executive at the agency overseeing the state’s $64 billion bullet-train project.

Jon Tapping, the agency’s director of risk management since 2012, is leaving, the Los Angeles Times reported in a story that quoted an unnamed agency official describing internal “chaos.” Authority Chief Executive Jeff Morales left in June. Morales’ second-in-command, Dennis Trujillo, quit in late 2016.

This leaves the authority with three high-profile vacancies as it tries to move ahead with a long-troubled project that’s taken a series of hits throughout 2017. Among the bad news:

– On Oct. 1, the Times printed a report that internal authority documents showed the initial 119-mile segment being built in the Central Valley would cost $8 billion, 27 percent more than the authority’s public declarations that the segment would cost $6.3 billion. The overrun estimate may prove low. In January, documents surfaced that showed federal rail officials expected an overrun in the 50 percent range.

– On Sept. 24, a critical Fresno Bee analysis showed how the authority’s original plan to complete a Merced-to-Bakersfield segment by Sept. 30, 2017, had long since been abandoned because of the authority’s unrealistic expectations about how quickly property could be obtained and environmental approvals be secured. The analysis also cited ongoing lawsuits. The Bee noted that the starting date for passenger service was now projected to be 2025 – 17 years after California voters approved $9.95 billion in bond seed money for the project, initially estimated to cost $32 billion.

Court ruling clears way for potent CEQA lawsuits

– On July 27, the California Supreme Court overturned a lower-court ruling and said state-owned rail projects were not completely exempt from the California Environmental Quality Act and other state environmental laws. The case involved another state project besides the bullet train, but legal analysts said there was no question it would apply.

CEQA has been a powerful tool against projects large and small in California for decades. The state Supreme Court ruling paves the way for a wave of CEQA lawsuits by deep-pocketed interest groups against now-pending environmental impact reports for bullet-train segments in Silicon Valley and the Los Angeles area.

Even individual citizens without high-powered legal teams can stall projects using CEQA. San Francisco’s plan to add bicycle lanes to encourage bicycle commuting was delayed for five years by a self-described “dishwasher from Mendocino.”

– On July 17, the Legislature approved a measure to extend the state’s emissions cap-and-trade program by 10 years, with a handful of Republicans providing crucial support after then-Assembly GOP leader Chad Mayes of Yucca Valley secured support for a provision that could eventually halt the bullet-train project.

“The concession … places a constitutional amendment drafted by Mayes before state voters in June 2018,” CalWatchdog reported in July. “If passed, it would lead to a one-time up-and-down vote in the Legislature in 2024 on whether to continue allowing the use of cap-and-trade revenue to fund the project. But the threshold wouldn’t be a simple majority. A two-thirds vote would be required to allow continued use of the funds – presumably giving GOP lawmakers a prime chance to pull the plug.

This amounts to a bet that the bad news about the project would continue. With the exodus of top staff, the confirmation of major cost overruns and the new certainty about another round of legal challenges, so far that’s what’s come to pass.

Train company owned by Germany may win key contract

Rail authority officials, however, say critics of the project ignore the steady progress it is making, with more than 400 small businesses and 1,400-plus “craft workers” proceeding in building the initial segment.

The rail authority board is likely to make a crucial decision at its meeting Thursday. DB Engineering & Consulting USA, a subsidiary of Deutsche Bahn AG, is expected to be given a $30 million contract to design and operate the initial segment from San Jose to the Central Valley.

Deutsche Bahn AG, which is owned by the German government, is competing with companies from Spain, Italy and China for the contract. In 2015, it was the world’s largest railway company based on revenue and the ninth-biggest carrier of global freight, according to industry reports.

Enough blame for everyone with Oakland housing crisis

Good morning! The governor gives his State of the State address today and it’s a pretty good bet he’ll discuss housing and the shortage of affordable options.  

From the Mexican border to the Bay Area, local governments along the California coast fret about short-term rental operations such as Airbnb eating up already limited housing stock.

In response, homeowners who use such rentals to deal with the high cost of living fire back with claims that they’re being scapegoated for local officials’ ineffective response to the Golden State’s affordable housing crisis.

In Oakland, these arguments keep growing more intense as tech workers keep moving in. Uber’s plan to build a new headquarters in the city by 2018 only adds to city leaders’ concerns about housing costs.

But recent reports and surveys leave little doubt that in Oakland, both short-term renters and local officials bear responsibility for severe housing headaches.

CalWatchdog has more.

In other news:

• Agriculture: “Agriculture leaders expressed disappointment over President Donald Trump’s decision Monday to pull out of a 12-country trade deal that would have boosted exports from San Joaquin Valley farmers,” reports The Fresno Bee. 

• Regulation: “Under legislation passed in 2011, environmental lawsuits against mega-projects would face significant restrictions, forcing any litigation to take no longer than nine months. Instead, the Warriors’ case lasted nearly a year. Overhauling the environmental law, the California Environmental Quality Act, is a perennial issue at the Capitol, and the measure benefiting the Warriors arena was one of the most high-profile CEQA reforms in recent years. But the failure of the 2011 legislation to meet its stated goals reveals the difficulty lawmakers have had in making meaningful changes to the law.” The Los Angeles Times has more. 

• Politics: “Orange County could hold the key to Republican success nationwide with the fastest growing slice of the electorate, Asian American voters.” The Orange County Register has more.

• Poverty: California has the highest real poverty rate in the country, reports PolitiFact California.

Legislature:

• At the State of the State festivities.

Gov. Brown:

• Swearing in ceremony for state attorney general and State of the State address at 10 a.m. in the Capital.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @SD_TaxFighters

The governor’s plan, unveiled last month, came after months of coverage about spiraling housing costs in urban areas, starting with San Francisco, where average monthly apartment rents have soared past $3,500 over the past year. Brown wants to modify the California Environmental Quality Act to give pre-clearance to high-density projects that meet certain standards, including having a portion of units that are deemed affordable. He also wants to reduce the obstacles to obtaining building permits.

The strategy reflects an approach that has worked fairly well in New Jersey and Massachusetts. Its basics were recommended in a 2003 Public Policy Institute of California report, which emphasized the need for a statewide approach, given how ineffective local housing policies were in creating housing stock.

Brown’s initiative passed the Assembly on a 46-7 vote on May 27 — perhaps reflecting that state lawmakers were hearing it from their constituents over the cost of rent and homes. But environmentalists are now loudly opposing the measure, and its passage in the state Senate is far less assured. Labor unions and trial lawyers, which have a history of using CEQA to force concessions or settlements from developers, also are opposing the plan.

A joint letter sent to every state lawmaker by unions, the Natural Resources Defense Council and other green groups last month warned that if adopted, Brown’s plan “would be a disaster for local government, local communities, the environment and the citizens of California.”

Brown laments difficulty of changing CEQA

In an interview with a UCLA publication, Blue Print, the governor addressed the difficulty of amending CEQA, something supported by all living California governors.

“The unions won’t let you because they use it as a hammer to get project labor agreements. The environmentalists like it because it’s the people’s document that you have to disclose all the impacts,” the governor said. “And, of course, the developers have a problem because ‘impact,’ boy, that’s a big word. Everything’s an impact.”

But as the Los Angeles Times recently reported, CEQA is not the only obstacle in San Francisco or Los Angeles.

In 1978, San Franciscans approved a ballot measure limiting changes in neighborhood density. In 1986, city voters backed a strict growth control initiative that capped commercial office construction.

In L.A., a 1987 court ruling limiting city officials’ discretion in approving building permits for projects with more than 50 units has had the effect of “preventing construction until city officials prepare an environmental impact report or declare one unnecessary, until a full trial is held in the case, or until the Supreme Court changes the ruling,” if a project faces challenges under state environmental laws.

Brown’s proposed CEQA changes, if approved, would override the San Francisco laws and the Los Angeles court precedent. A Brown aide has called the local laws “micromanaging” that would prevent an adequate response to the housing crisis.

The League of California Cities, while acknowledging the seriousness of the issue, has joined unions and greens in opposing the governor’s plan.

Dan Carrigg, the league’s legislative director, told the San Francisco Business Times, “We support local decision-making. When you have one of these one-size-fits all policies … sometimes what works in one spot doesn’t work well in another.”

Photo Credit: HUD.gov

The rule would modify how traffic is evaluated during a critical phase for planning for building developments, shifting the focus from traffic congestion to the increase in miles traveled. New building projects would be viewed as adversely affecting the environment if they increase vehicle miles traveled by more than a regional average without offsets.

The Brown administration — which was tasked with creating the new rule by the Legislature — believes this shift will encourage the development of urban housing, bringing people into the cities and giving them more transportation options beyond the car.

“This proposal will actually help affordable housing projects, especially near transit,” said Christopher Calfee, General Counsel for California’s state Office of Planning and Research. Calfee said the new proposed guidelines will streamline the process as it removes other factors, like aesthetics and parking — from being considered to be negative for the environment.

But critics say applying this standard in instances outside of specific urban areas near major transportation spots — areas called Transit Priority Areas — will hurt the development of housing in suburban and rural areas where property values are lower, and hurt local economies by thwarting new development.

“We’d prefer to see approaches that continue to incentivize transit, incentivize (re-purposing old buildings),” said Richard Lambros, the managing director of the Southern California Leadership Council. Lambros was critical of the new rule, saying while it benefits areas near mass transit, it could limit the development in lower cost, suburban and rural areas.

Greenhouse gasses

When the Legislature tasked Brown’s administration with writing the new rules in 2013, it asked that the new rule “promote the reduction of greenhouse gas emissions, the development of multi-modal transportation networks, and a diversity of land uses.” This coincided with a statewide goal to reduce greenhouse gas emissions by 40 percent by 2030.

In addition to promoting alternative means of travel, the new regulations impose a “road diet,” meaning limiting the amount of new road lanes built — a 4 percent cap statewide between now and 2030.

“We respect that we’re trying to achieve important (greenhouse gas) reduction goals in California, but we can’t develop the policy to do that in a way that doesn’t account for unintended consequences,” said Lambros.

But the Brown administration contends that this doesn’t put a cap on roads (although road diet is OPR’s term), providing instead a threshold for when the mileage standard is considered significant.

“Some new roads will actually decrease (the new standard called Vehicle Miles Traveled),” said Calfee. “Others will increase it. Even if that increase is significant, lead agencies may override the impact and still approve the project.”

Lawsuits

The 46-year-old California Environmental Quality Act requires developers to obtain an Environmental Impact Report during the planning period, which evaluates a project’s impact on the local environment. This public document advises local governments when they are deciding to approve or deny a project, and it’s in this report that the new guidelines will be applied.

Local governments are not actually required to deny a project based on a negative report. However, many proposed developments end up being fought in court — by environmentalists, opposing developers and so on — so cities and counties can overlook these guidelines at their own peril. In other words, overlooking the environmental impact report makes a project less defensible.

“It gives more ammunition to people who want to stop capacity projects for whatever reason,” said Hasan Ikhrata, executive director of the Southern California Association of Governments, whose group is concerned that the new rule will subject hundreds of projects in their six counties to new standards midstream, which they say are largely un-achievable.

History

Under CEQA (pronounced see-qua), many factors were considered in an environmental impact report — a requirement for new development. Some of the factors were transportation, aesthetics and parking.

The 2013 bill said that parking and aesthetics in certain instances in the Transit Priority Areas were no longer considered significant impacts on the environment. These areas were created by the Legislature to encourage high-density development in areas where there is existing or proposed public transportation — like areas near metro stops.

The bill also tasked the Brown administration to come up with new guidelines on determining the transportation impact, as the old guidelines were based on traffic congestion — making congestion worse was considered an adverse impact.

The proposed modification shifts the focus from congestion to vehicle miles traveled, as compared to the regional average. So, increasing the average amount of miles that vehicles travel compared to the regional average is considered adverse if it’s without plans to offset the mileage.

Affordable Housing

So with the new standard, close proximity to proposed or existing mass transit is certainly helpful, and critics say it’s an unofficial requirement. Because there are existing roads and generally adequate access to public transportation, high density projects near urban centers will fare better in the CEQA/environmental review process.

But areas further away from the urban center would likely be more affected. Critics say this could affect the access to affordable housing, since property values and rents usually fall the further away development gets from the city. Many critics aren’t against the new standard, just it’s widespread application.

“We’re ok with (the new standard),” said Ikhrata. “But what we’re saying is you shouldn’t subject every project to this test. This should be done on an overall system, and be able to mitigate in other places. No project is going to pass that test.”

The Bay Area Air Quality Management District argued that it’s not enough for developers to detail the environmental impacts from their proposed projects. Instead, they must also detail how the existing environment would affect the residents, employees or customers of new housing, commercial-retail or mixed-use projects. That assertion outraged the California Building Industry Association, which said it placed huge new obstacles on projects in urban areas — especially “infill” projects championed by environmentalists as a way to increase housing density near mass transit options.

Builders got their way at the trial court level, but an appellate court sided with the Bay Area AQMD. This month, however, a unanimous state Supreme Court ruled that CEQA simply doesn’t mandate that sweeping a review.

“Given the sometimes costly nature of the analysis required under CEQA when an EIR is required, such an expansion would tend to complicate a variety of residential, commercial, and other projects beyond what a fair reading of the statute would support,” wrote Judge Mariano-Florentino Cuéllar. Instead, he wrote, CEQA deals with “the project’s impact on the environment – and not the environment’s impact on the project.”

Builders feared adverse ruling

The decision came as a huge relief to developers and business interests, many of whom expected an adverse decision in the wake of the California high court’s Nov. 30 ruling that rejected the 5,800-page environmental impact report for the Newhall master planned community in the Santa Clarita Valley. The project, first proposed in the 1980s, would create homes, retail-commercial zones and leisure-recreational facilities for 58,000 people.

Contrary to some reports, this wasn’t just a simple battle between environmentalists — in this case, the Center for Biological Diversity — and a developer — the Newhall Land & Farming Co.  The California Department of Fish and Wildlife was the first named party in the lawsuit because it had helped prepare an EIR that said the project had enough mitigation that it would have no net negative effect on the environment, specifically in the release of additional greenhouse gases. The state had been encouraged to take this position by Los Angeles County, which approved the Newhall project’s zoning in 2003.

Justice knocks ‘recipe for paralysis’

The Newhall decision was supported by five of the seven California justices. Interestingly, one of the two dissenters invoked not just his reading of CEQA but the larger issue of a lack of housing in California. This is from the Los Angeles Times:

Justice Ming W. Chin said the environmental impact report could be fairly easily revised but complained the litigation would delay the project by years at a time when the state faces a housing shortage.

 

“Delay the project long enough and it has to meet new targets, and then perhaps new targets after that,” Chin wrote. “All this is a recipe for paralysis.”

This acknowledgment of the effects of judicial decisions on the real world is relatively unusual. For example, in May, the Illinois Supreme Court threw out a state pension reform program that supporters said was crucial to keeping Illinois from becoming the first state to declare bankruptcy. This account is from The New York Times:

All seven members of the state’s highest court found that a pension overhaul lawmakers had agreed to almost a year and a half ago violated the Illinois Constitution. The changes would have curtailed future cost-of-living adjustments for workers, raised the age of retirement for some and put a cap on pensions for those with the highest salaries. But under the state Constitution, benefits promised as part of a pension system for public workers “shall not be diminished or impaired.”

“Crisis is not an excuse to abandon the rule of law,” Justice Lloyd A. Karmeier wrote in an opinion. “It is a summons to defend it.”

Whether or not the federal government might come to the rescue of Illinois if it went bankrupt has been the topic of intense speculation in that state’s media.

“Today, an average California home costs $440,000, about two-and-a-half times the average national home price ($180,000). Also, California’s average monthly rent is about $1,240, 50 percent higher than the rest of the country ($840 per month). 

“California is a desirable place to live. Yet not enough housing exists in the state’s major coastal communities to accommodate all of the households that want to live there. 

“Households with low incomes, in particular, spend much more of their income on housing. High home prices here also push homeownership out of reach for many. … The state’s high housing costs make California a less attractive place to call home, making it more difficult for companies to hire and retain qualified employees, likely preventing the state’s economy from meeting its full potential.”

The LAO  prescribed two cures for high-cost housing in already dense coastal areas where frequent environmental opposition to new housing is most rampant.

Higher densities

First, the LAO called for much higher building densities in coastal metropolitan areas, including:

• More than doubling of single family home densities in Los Angeles, Alameda, San Mateo and Santa Clara counties from 4 units per acre to up to 9 units (Figure 10, LAO Report);
• More than doubling townhome and condominium densities in San Francisco from 18 units per acre to 35 to 40 units (Figure 10, LAO Report);
• Building 100,000 additional housing units along the coast each year. This would be the equivalent to building a new city along the coastline with a population of 300,000, or about the size of Riverside or Stockton — each year.

CEQA exemption

Second, the LAO recommends exempting new housing construction from lawsuits under the California Environmental Quality Act for reasons of reduction in traffic congestion and the avoidance of blocked views from “Not-In-My-Backyard” (NIMBY) lawsuits. The LAO report did acknowledge, “CEQA’s complicated procedural requirements give development opponents significant opportunities to continue challenging housing projects after local governments have approved them.” However, the LAO did not bring up the 2013 reforms of CEQA in Senate Bill 743, by then-Senate President Pro Tem Darrell Steinberg, D-Sacramento, for infill development in high-density transit development zones.  SB743 eliminated traditional “auto delay” and “level of service” measures of traffic congestion, as well as any parking impacts, as a basis for determining significant impacts of infill housing development under CEQA. The provisions of SB743 will not become effective until sometime in 2016. The California Infill Building Association, the California Teamsters Public Affairs Council, and the Sacramento County Board of Supervisors, which was seeking relaxation of CEQA for a sports stadium project, supported SB743.  Opposition to SB743 came from the Planning and Conservation League and the Sierra Club. SB743 should help a little with the constructing new dwellings.

Home rule

The LAO also infers that, to lower coastal housing costs, California needs to usurp local “home rule” of zoning densities and the ability to file environmental lawsuits blocking or delaying new housing. But combining higher densities with environmental exemptions for affordable housing could result in even more displacements, especially of people in rent-controlled units in San Francisco, Los Angeles and Santa Monica. The LAO report specifically targeted higher multi-family housing densities in San Francisco to alleviate its current middle-class housing crunch. And the LAO wrote that “local governments limit how much landlords can increase rents each year for existing tenants. About 15 California cities have these so-called rent controls, including Los Angeles, San Francisco, San Jose and Oakland.” But as described by Kriston Capps on CityLab.com of March 17, in “Why Did This Woman Get Stuck with a $6,755 Monthly Rent Hike?” San Francisco landlords are converting rooming houses back to single-family homes to remove the rent controls from their properties. L.A. Curbed on March 18 reported in “Mass Rent-Control Evictions on Rise in Santa Monica” that landlords are taking rent-controlled properties off the market for condominium development or an extensive remodel to resell as jumbo, luxury homes. The LAO report failed to discuss the consequences of displacing lower-income renters, something already rampant in highly dense coastal cities. In sum, although the LAO did shine some light onto the problem of high housing costs in California, many other factors are involved. Meanwhile, millions of the state’s residents continue to struggle to pay their rents and mortgages.

In his 2013 State of the State address, Gov. Jerry Brown quoted “The Little Engine That Could”: “I think I can. I think I can.”

One thing the California High-Speed Rail Authority, which runs the project, thinks it can do is get around the California Environmental Quality Act. As noted in the first article in this series, it started with two attempts:

• Attempt 1: During the California Legislature’s closing days in August 2012, the CHSRA tried to pass more lenient measures to comply with CEQA. The Legislature didn’t cooperate.
• Attempt 2: In June 2013, 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, getting around state laws, such as CEQA. The court refused.

Attempt 3

Attempt 3: De-publication. Now, in its third attempt to get around CEQA, on Sept. 22 California Attorney General Kamala Harris asked the California Supreme Court for the de-publication of the 3rd District’s decision in the Atherton case. If granted, it would have meant future cases would have been restricted in using this case for precedent. Harris is representing the CHSRA.   

Basically, what Harris and the CHSRA said was that, regardless of the language in Proposition 1A in 2008, they instead wanted to put the project into federal jurisdiction. And that, any interpretation to the contrary, such as that by the 3rd District Court of Appeal, had “misinterpreted” those facts, and ought to be de-published.

De-publication would have offered a quick way to minimize the damage of the 3rd District Court of Appeal’s decision. If the Supreme Court had agreed to de-publish the decision, it would have blocked that decision from being used as a precedent for other cases.

Stuart Flashman, an attorney for Kings County and two residents who have brought suit to stop the project, filed a brief against the de-publication, arguing:

“If the Attorney General wished to press these points, her proper recourse was to petition for review, and the other agencies could have supported review….

“If the parties seeking de-publication feel that major state transportation projects should not be subject to CEQA review, that argument should be addressed to the Legislature, which clearly knows how to exempt classes of projects from CEQA review when it feels such exemption is warranted.”

On Oct. 29, the Supreme Court denied the de-publication request. Therefore, the 3rd District Court of Appeal’s decision is now final and conclusive.

Attempt 4

Attempt 4: the Surface Transportation Board. Private attorneys Nossaman LLP have a $17 million contract to represent the CHSRA. An Oct. 9 petition by Nossaman asked for declaratory relief, that is, an official declaration of the status of a matter in controversy to expedite a court case.

In this case, the CHSRA is specifically asking the STB to take off the table any request for a injunction against construction for any party suing under CEQA. The CHSRA want federal laws to preempt state laws.

(The STB is a federal agency under the Department of Transportation. A year ago, on Dec. 3, 2013, the STB declared it held federal jurisdiction because California’s tracks would also be used by Amtrak; and the tracks cross state lines.)

The CHSRA wants to prevent the chance of a construction injunction being granted for a Central Valley case represented by  Attorney Doug Carstens from Chatten-Brown & Carstens LLP. He represents  Kings County, Citizens for High Speed Rail Accountability and the Kings County Farm Bureau.

The reason his clients are suing is because of alleged CEQA improprieties in the Fresno-to-Bakersfield segment. The CHSRA said that, if the injunction was granted, it could endanger the start of building the high-speed rail system; and the CHSRA has a tight time frame on the use of $3.5 billion in federal funds.

But there is no emergency. The actual case is not expected to be heard until mid-summer 2015. Moreover, there are six other CEQA cases filed against the project and not one of them is ready to go to court this month.

A decision from the STB is expected soon. If the STB grants declaratory relief, basically preempting CEQA with a federal supremacy claim, the next step will be the U.S. 9th Circuit Court of Appeals.

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.

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.”

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

This is from the San Francisco Business Times of Feb. 28, 2013:

“This is an important ruling and is testament to the fact that the authority is committed to delivering the high-speed rail project in accordance with the law and in partnership with the public,” Jeff Morales, the authority’s CEO, said in a prepared statement. 

This is from Associated Press via the SJMN on Thursday:

“Today’s court ruling reaffirms our successful compliance with the California Environmental Quality Act,” Lisa Marie Alley, a spokeswoman for the California High-Speed Rail Authority, said in a written statement.

This praise for a lower-court judge is not the norm for the rail authority.

It’s been sharply — even comically — critical of Sacramento Superior Court Judge Michael Kenny for his November ruling that the state had inadequate funding and environmental approvals to begin construction of the project’s initial $31 bilion, 300-mile segment. Kenny cited strict rules in Proposition 1A, the 2008 measure that provided $9.95 billion in seed money for the bullet train network.

Ruling could block ‘access’ to financial markets

Lawyers for the rail authority say Kenny doesn’t understand state law and is making judgments on the soundness of the project’s finances and its compliance with state law that should be left to the Legislature. They also said the fact that the court fight could severely delay the project was somehow a legal argument against it:

Forcing the authority to litigate the validity of the trial court’s ruling in separate appellate proceedings … could be disastrous both for the high-speed rail project and others like it.

And this is pretty incredible: State lawyers warn that putting tight legal safeguards on a really controversial infrastructure project could make it more difficult for California to borrow money! The decision …

... would effect a substantial change to a public finance system that has been allowing the state to access financial markets for decades, without providing any real alternative.

But there’s a problem. Kenny is also the guy who issued the February 2013 ruling that state officials like.

He’s a genius when he agrees with the rail authority. He’s a bozo when he doesn’t.

What really matters? What CA high court thinks

The same appellate court that upheld Kenny’s February 2013 ruling has until Aug. 24 or so to decide on the state’s appeals of his November 2013 rulings. At a May hearing, the appeals panel appeared sympathetic to the rail agency’s arguments.

If that is how it rules, that sets up a potentially huge appeal to the California Supreme Court.

The Brown administration’s position on Proposition 1A is pretty radical. It holds the courts can’t get in the way of big state projects because they’re … big — and really important!

It goes against the long history in California of propositions being battled over, and sometimes thrown out or reshaped, by the courts.

Paging Rose Bird, paging Rose Bird

Why should the execution of a transportation project established by state law be governed by the governor’s and the Legislature’s interpretation of state law, not the courts? Where’s the precedent for the judiciary being shunted aside on questions about the legality of a very high-profile public project?

If we are talking about the intent of the drafters of Prop. 1A, starting with Quentin Kopp, it is obvious they wanted the measure’s protections to really be protections — not meaningless campaign rhetoric.

If the California Supreme Court upholds an appellate ruling that says courts should butt out of big infrastructure projects, that is mind-boggling. I bet it would become a national topic.

Rose Bird the Sequel?

Maybe. Such a decision would make direct democracy seem like a sham. Never forget that the Legislature’s handling of the ballot language for Prop. 1A was so outrageous that it was emasculated by the courts and banned from any future direct writing of ballot language:

Now some appellate judges apparently think the same lame Legislature should interpret what 1A means, not the courts.

Really?