Three months after canceling a $929 million federal grant to the troubled California bullet train project, the Trump administration has unexpectedly given its go-ahead to the state to approve environmental documents that are needed to complete planning for the long-delayed project.

In May, after the funding was canceled, the relationship between the federal and state government seemed so bumpy that bullet train officials worried that Washington would try to sabotage the project by delaying approval of necessary paperwork. Instead, on Monday, the Federal Railroad Administration fulfilled a long-standing state request and moved environmental reviews of pending plans for the project’s full Los Angeles to San Francisco route from the federal to the state level. According to the Los Angeles Times, previously the agency had only approved segments from Bakersfield to Fresno and from Fresno to Merced.

“This action is an important milestone for the high-speed program,” said Brian Kelly, chief executive of the California High-Speed Rail Authority. “We’ve lost valuable time waiting with the FRA’s disengagement, so I am very thankful for this action and I am hopeful this step is the beginning of a more collaborative and cooperative relationship prospectively.”

But while state officials were relieved by the federal decision, funding obstacles still remain. The state only has about one-quarter of the $80 billion-plus it would take to link Los Angeles and San Francisco – and that’s for a plan that doesn’t use high-speed rail for segments from San Francisco to San Jose or from Los Angeles to its northern exurbs. This downscaling has led some longtime backers of the project, such as former state Sen. Quentin Kopp, to renounce it as a betrayal of promises made to state voters in 2008 when they approved $9.95 billion in bond seed money for what was then envisioned as a $43 billion statewide train system.

The lack of funding was behind Gov. Gavin Newsom’s February decision to pull back from predecessor Jerry Brown’s commitment to building a statewide system. Instead, Newsom said all $20.5 billion in available funding should be used to build a high-speed route between Bakersfield and Merced in the Central Valley. 

Speaker wants changes to Newsom’s focus on Central Valley

But it now appears that even that scaled-back plan will face opposition from some key Democrats in the Legislature. On Thuesday, the Times reported that Democratic Assembly members from the Los Angeles and Bay areas – including Speaker Anthony Rendon – have for weeks discussed shifting the state’s rail focus. They hope to take up to $6 billion that Newsom wants to use in the Central Valley to improve rail service from Pasadena to Anaheim and commuter rail in and out of San Francisco. They believe a shorter, scaled-down version of the Central Valley route is viable with funding in the $14 billion range.

“I like the concept,” Rendon told the Times. “Any project that doesn’t have a significant amount of service to the largest areas in the state doesn’t make much sense.”

The prospect of taking state bullet train money for the Los Angeles area was first raised publicly in April by several members of board of the Los Angeles County Metropolitan Transportation Authority.

Any reduction in the scope of the Central Valley route proposed by Newsom is likely to face bitter opposition from the area’s politicians, who see the bullet train as crucial to improving the economy in one of the state’s poorest regions. They were enthusiastic about Newsom’s comments during last year’s campaign that a bullet train would be ideal to connect Silicon Valley workers with relatively inexpensive housing in the Central Valley.

“This is clear political retribution by President Trump, and we won’t sit idly by,” Gov. Gavin Newsom said in a statement issued soon after the Transportation Department announcement. “This is California’s money, and we are going to fight for it.”

Newsom’s depiction of the decision as a Trump vendetta can be buttressed by the president’s repeated clashes with California over federal policies, but the state may face more of a difficult fight to retain bullet-train funding than top officials are willing to admit. While $929 million of the federal funding was directly approved by Congress – the other $2.5 billion came from the massive economic stimulus bill of 2009 – both chunks of money are covered by Federal Railroad Administration (FRA) rules that are meant to ensure federal funds are used properly.

Lack of ‘reasonable progress’ can trigger refund demand

One such provision specifically applies to the $2.5 billion that the Department of Transportation may want refunded: “Any failure to make reasonable progress on the project or other violation of this agreement that significantly endangers substantial performance of the project shall provide sufficient grounds for the FRA to terminate this agreement.”

As the Los Angeles Times reported in November, the California High-Speed Rail Authority was 13 years behind schedule in completing the now-$77 billion project. Citing a lack of available funding, Newsom has at least for now suspended moves to build the train beyond a route already under construction in the Central Valley and forced out longtime rail board chairman Dan Richard.

Yet the project isn’t just on shaky grounds on the question of proper use of federal funding. In mid-2009, in its application for federal stimulus dollars, the state of California made representations to the U.S. Department of Transportation about the project’s solid financing, careful planning and strong accountability provisions that have been repeatedly belied by state audits and reviews as well as independent reporting.

The Obama administration – which was disappointed that California was the only state to accept federal high-speed rail funding – was content to extend deadlines to try to help the Golden State project find its way. Under Obama, rail officials also rejected complaints from California House Republicans that the state project was breaking federal rules.

State claimed it had sound project in requesting stimulus funds

But if the U.S. DOT chooses to go after the California High-Speed Rail Authority, it has a wealth of examples that it can site to show the state’s 2009 grant request made false claims about the soundness of the state project. The short list:

— In January 2010, the Legislative Analyst’s Office concluded that the rail authority didn’t have a legal business plan because it anticipated using promises of subsidies if revenue estimates fell short to attract investors. Such subsidies were explicitly banned by Proposition 1A, the 2008 state ballot measure providing $9.95 billion in bond seed money for the then-$34 billion project. This is why the project has never attracted outside investors, unlike projects in Europe in which governments promised to share the risk if revenue goals weren’t met.

— In April 2012, to reduce the cost of the project – which had ballooned to $98 billion – Gov. Jerry Brown and rail authority officials announced that they would instead pursue a $64 billion “blended” rail system in which high-speed trains shared much-slower regular tracks for approximately 45 miles in the crowded urban areas on each end of the primary San Francisco-Los Angeles route. But as critics – including former state Sen. Quentin Kopp, considered the father of the state’s bullet train project – immediately noted, this meant that what the state wanted to build wasn’t actually a high-speed rail line linking San Francisco and Los Angeles. That’s what was promised to state voters in 2008 and the federal government in 2009.

— In October 2015, the Los Angeles Times reported that it had obtained documents that showed primary contractor Parsons Brinckerhoff had warned the rail authority in 2013 that a $9 billion cost overrun was likely on the project’s initial phase from Burbank to Merced. The authority didn’t disclose this to the public or revise cost estimates upward – decisions that could have been prosecuted if done by publicly held corporations.

What happens next from here is murky. But as the Associated Press noted, the federal government doesn’t need California to write it a check to get its money back. If the Department of Transportation concludes the state didn’t live up to its commitments with federal funds, it could withhold federal dollars on unrelated projects until it gets back all the money that it believes was misspent.

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.

So how about we let others join in the fun? What do the mainstream media have to say about my key three points?

Their conventional wisdom is a lot closer to my deep skepticism than to Richard’s rosy scenarios, that’s for sure.

Point 1: There are not nearly adequate funds available to complete the $68 billion project in the way promised to voters in 2008 who approved Proposition 1A, giving the bullet train $9.95 billion in state bonds as seed money.

As Politico reported on Feb. 8, this is already a huge legal obstacle based on Prop. 1A’s language — not a distant headache on the horizon.

Judge Michael Kenny ruled that the state could not sell future bonds to finance the first leg of construction until they redid the business plan to specify sources of funding “that were more than merely theoretically possible.”

As for the $250 million in cap-and-trade funds Gov. Jerry Brown secured for the rail project this fiscal year, as Associated Press noted on Jan. 14 …

It also is just a tiny fraction of the overall price tag for high-speed rail, currently at $68 billion.

And as the L.A. Times reported on Feb. 28, this appropriation is deeply unpopular with environmentalists — and it offers …

… significant legal risks. The state law that set up the limits on greenhouse gases and the cap-and-trade system calls for investments that will reduce emissions by 2020 to the levels that existed in 1990, some experts say. The state’s nonpartisan Legislative Analyst’s Office, noting the bullet train would not be in operation until after 2020, has questioned the legality of using the cap-and-trade funding  for rail construction.

As for Dan Richard’s claim that significant private financing is just around the corner, I await Dan naming a single company that would have any interest in partnering with the state of California on a multibillion-dollar project without revenue or ridership guarantees, which are banned by Prop. 1A. Dan won’t be able to because there aren’t any.

As for the notion that the federal government might foot nearly the entire bill for one state’s extremely expensive project –as some CA bloggers hope  — I can’t cite an MSM piece saying that’s not true, because it’s not even something the MSM considers in the realm of human possibility.

And, no, it’s not just those evil House Republicans who oppose further federal funding than the $3.5 billion the project has gotten so far. Patty Murray, the Washington Democrat who is now chair of the Senate budget committee, came out as an opponent of federal funding for such projects in 2011.

Point 2: The legal challenges the project faces because of Prop. 1A restrictions are likely to be impossible to overcome.

Judge Michael Kenny didn’t just say that before construction began, the state has to have $31 billion in hand to build a “viable” first operating segment of 300 miles that could make money even if the full system was never completed. He said the state had to complete environmental reviews for all 300 miles. It’s not even one-tenth complete, with only 27 miles having clearances.

This is from the Hanford (CA) Sentinel’s reporting on Feb. 4:

Kenny also ruled that the Authority needed to complete environmental analyses for the segment before construction begins.

As for Richard’s confidence in the bullet train’s lawyers, as the Sentinel notes, the legal team instead looks more like the Keystone Kops:

Kings County opponents celebrated the [August 2013 and November 2013] rulings as at least partial vindication, but Authority officials said the project was proceeding on schedule and implied that the rulings were a minor inconvenience.

In the appeal [filed in January], the Authority argued just the opposite.

“The trial court’s approach to these issues cripples government’s ability to function. … Action by this court is urgently required to avoid compromising the Authority’s ability to build the system quickly and economically, as intended by the Legislature and the voters,” the appeal states.

And keep in mind that in Silicon Valley, rich cities have basically vowed to block related construction forever using NIMBY tactics. These tactics have a long history of winning in California — especially when you have very skilled attorneys with very deep-pocket clients.

Point 3: What the state proposes isn’t even high-speed rail.

Because of fears of just the sort of corner-cutting we’re now seeing, Prop. 1A required that the bullet train get from downtown Los Angeles to downtown San Francisco in no more than two hours and 40 minutes. But under the governor’s “blended” plan using regular rail from San Francisco to San Jose and from the northern edges of the L.A. exurb to downtown L.A., that means about 100 miles of the trip will be at conventional train speeds and 410 miles at bullet-train speeds.

If you make the generous concession that the conventional trains will go 100 miles at 100 mph, taking 60 minutes, and if you have transfer times of five minutes for each of the train switches, that means the bullet train will have to cover 410 miles in 90 minutes, going 273 mph, to comply with the 160-minute limit in state law.

I repeat, 273 mph. I repeat, 273 mph. I repeat, 273 mph.

That’s average speed, not top speed.

Nevertheless, Richard says that’s not going to be a problem. He says …

“… the independent Legislative Peer Review Group looked at the planning and concluded that at present, our design would allow for that trip to occur in 2 hours and 32 minutes.”

What does the MSM say? Even though I have never seen a piece that breaks down the math of the CHSRA’s claims as I did above, most journos are very skeptical, and so are many experts, as this L.A. Times piece from March 27 notes.

But there’s another wrinkle here. In his response to my original post, Richard seems to take the 160-minute provision of Prop. 1A seriously. But as the L.A. Times reported on June 9 of this year, the rail authority is trying to play semantic games to get out of the obligation — because it’s an obligation it can’t meet:

Dan Richard, chairman of the authority, said the state would deliver a system that meets all legal requirements of the ballot measure.

“We are not trying to parse words and hide behind legal technicalities,” he said.

But critics and opponents, including some key players from the project’s past, say the rail authority is trying to circumvent the basic intent of the protections because the existing plan for the Los Angeles-to-San Francisco line can’t meet them.

The unusual specificity of Proposition 1A has been cited by bullet train promoters and critics to bolster their positions. And both sides have put the language and procedures set out in an 8,000-word piece of legislation underlying the ballot measure under an interpretive microscope. One example: Does a requirement to “design” the train so it can travel from L.A. to San Francisco in two hours and 40 minutes mean the state has to provide such service?

“This bond issue was extraordinary,” said Quentin Kopp, a former state senator, state court judge and former chairman of the rail authority, when the restrictions were written. “I can’t recall any general obligation bond issue that incorporated legal provisions to the extent this one does.”

In Kopp’s view, the state legislation and subsequent ballot measure were a conscious effort by the Legislature to place binding safeguards on the biggest infrastructure project in California history.

Rep. Alan Lowenthal (D-Long Beach), a former state senator who wrote many of the restrictions, said: “We didn’t put them in as guidelines…. It was really clear what we wanted.”

In 2008, 160 minutes meant 160 minutes in California. In 2014? Well, that’s open to debate.

I look forward to Dan Richard’s response to my response to his response to my response to James Fallows. Will he argue again that I’m a “rabid” bullet-train hater? Or will he concede that “rabid” though I may be, I’ve got the MSM generally on my side?

If he says the MSM is with him, Dan should offers specifics, and not just boosterism from the edit page of the Fresno Bee.

We shall see.

In the mean time, I sure hope that Fallows talks to Ralph Vartabedian of the L.A. Times or Mike Rosenberg of the San Jose Mercury-News or to former Democratic state Sens. Quentin Kopp, Alan Lowenthal or Joe Simitian. When that happens, he will see that it’s not just blowhard libertarian bloggers who believe the bullet train is a debacle.

It’s lots of people — including many of the project’s original true believers.

In his first installment, his focus is on how much better life is in places with fast, convenient trains and how big infrastructure projects can tranform regions for the better. Then he cites studies which talk about this specific project’s benefits in helping local economies and reducing pollution.

The problem is that Fallows is describing California’s high-speed rail project in a vacuum. When someone just hears the concept, of course they are likely to think it sounds cool.

But the California project is not proceeding in a vacuum. It is unfolding under specific parameters governed by state law and under the specific circumstances we’ve seen in California since 2008, when state voters approved Proposition 1A and $9.95 billion in bond seed money for the train. When you look at the pet project of the California High-Speed Rail Authority with these factors in mind, it’s obvious that Fallows, as smart as he may be, is clueless on the bullet train.

Beyond the happy talk: What reality looks like

Here are seven ways that is the case.

1. All the wonderful things the train allegedly does don’t matter if it can’t be paid for. There is at most $13 billion in state and federal funding for a project that has a price tag of $68 billion (a price tag that no one really believes is accurate). There is no prospect for further federal funding in an era in which discretionary domestic spending is being squeezed as never before. State funding of $250 million a year from fees from California’s nascent cap-and-trade pollution-rights market begins this budget cycle. But that is a pittance, and if they’re off the record, no state lawmaker will admit to wanting taxpayers to foot the entire bill. So why can’t the private sector come to the rescue? Because …

2. All the wonderful things the train allegedly does don’t matter if it can’t be built legally. No private sector investors have emerged despite years of promises from the administrations of Arnold Schwarzenegger and Jerry Brown because Prop 1A included a provision that there could be no operating subsidies, whether the rail system was run by the state government or a private operator. No investor wants to partner with a suspect entity like the state of California without revenue or ridership guarantees that are tantamount to promises of subsidies if the project doesn’t meet expectations.

The bullet train isn’t just susceptible to the NIMBYism that routinely hobbles big projects. The only lawyers who believe the state’s proposal is legal under the terms of Prop 1A work for the rail authority or for political entities that support the project. It’s already been blocked by a Sacramento Superior Court judge on the grounds that it has inadequate financing and insufficient environmental reviews to begin construction of its initial $31 billion, 300-mile link. That’s because of yet another Prop 1A safeguard: the requirement that construction couldn’t begin unless there is all necessary money in hand and completed environmental reviews for an entire rail segment that could be economically viable even if the statewide system were never completed.

3. What the state of California wants to do isn’t even a high-speed rail project under the definition established in state law. Fallows somehow has missed the harsh critique of former state Sen. Quentin Kopp, the father of the bullet train idea in California, who opposes Brown’s plan to build a really fast train from San Jose to the northern edges of the Los Angeles exurbs. Kopp says — correctly — that Prop 1A promised a two-hour, 40-minute trip from downtown San Francisco to downtown L.A. That’s not in the realm of even theoretical possibility if riders have to spend an hour getting from San Francisco to San Jose and then an hour getting from northern L.A. County to downtown L.A. on regular trains.

Public, lawmakers have cooled to project

Now it’s time for four more reasons that are a little more subjective but that Fallows still has no effective way to counter:

4. The Fallows case for the bullet train builds on information he was provided by the state and its paid consultants. Unless he is the most naive man in the world, he should be hugely suspicious of information provided by those pushing the project. Why? Because here is the short list of some of the many important things they have deceived the public and the media about since 2008:

The project’s cost (used to be $33 billion, then $98 billion, now allegedly $68 billion); annual ridership forecasts (initially an insane 117 million people, or three times as many riders as Amtrak, which operates in 46 states); jobs created; pollution reduction; and cost of fares.

5. The public no longer backs the project. It won narrowly in 2008. Now polls show nearly two-thirds of voters are opposed. Costly projects surrounded by controversy and scandal — and lacking funding — need public support if they are to be completed.

6. Many Democrats in the state Legislature have lost faith. The incoming Senate president, Kevin De Leon of Los Angeles, even said it was stupid to begin the project in the Central Valley instead of the state’s most populated regions. And the most dominant special interests in Sacramento are public employee unions, not the building-trades unions which love the bullet train. These unions are extremely wary of another big mouth at the state trough. An enormously expensive bailout of the state teachers pension system has just gotten under way; a similar bailout of a program for retiree health care for state employees is still badly needed; and temporary income-tax and sales-tax hikes are expiring in coming years. These factors add up to a grim coming era in which there will be a perpetual dog-eat-dog fight for every dollar in the Legislature. These are the fights that the teacher unions in particular win year after year. There is no reason to think teacher unions will use their clout to help the bullet-train project as opposed to trying to enervate it.

7. The idea that trains dependent on conventional 20th-century engineering are the key to getting people around in 21st-century California is farcical to anyone who pays attention to the enormous building wave of transformative transportation technology. Driverless cars are only one example.

Fallows’ goal seems to be shoring up a project he perceives in trouble. But unless he moves out of his vacuum-based view of high-speed rail’s glories and addresses its California realities, he’s not even going to be a factor in debates over the bullet train — at least in the Golden State.

That’s because here, we’ve already heard all the happy talk. And we’ve noticed how little it meshes with reality.

That is the deadline for the California High-Speed Rail Authority to respond to a landmark ruling by Sacramento Superior Court Judge Michael Kenny, who is hearing a series of related challenges to the rail authority's project. On Aug. 16, Kenny released a decision related to a lawsuit filed by Kings County, Hanford farmer John Tos and homeowner Aaron Fukuda that agreed with their arguments that the rail authority would be breaking state law in two ways if it began construction of the project, as is now planned for 2014.

The judge held that the state had failed to identify the sources for the entire $31 billion needed to complete the bullet train's “initial operating segment” from Merced to the San Fernando Valley and to obtain all necessary environmental approvals for that segment.

Instead of ordering the project be halted, however, Kenny scheduled a “remedies” hearing for Nov. 8 at which the state would discuss how it planned to address the deficiencies in its business plan and the inadequacies of its environmental reviews. The plaintiffs have already sent Kenny their proposed order. It argues that based on his Aug. 16 decision, the judge has no choice but to “permanently enjoin” the rail authority from proceeding with construction until it was in compliance with state law.

Set grounds for appeal — or accept likely long delays?

Observers of the Kings County lawsuit say rail authority officials — and Gov. Jerry Brown, who emerged as a vigorous project backer in late 2011 — have a starkly difficult decision to make in their remedies filing.

If they accept Kenny's interpretation of Proposition 1A, their remedies would delay construction indefinitely and possibly permanently. It's not just that full environmental reviews will take years, with project opponents having many opportunities to employ the NIMBY tactics long honed by California environmentalists. It's the daunting task of finding more than $20 billion in firm new funding for the project. In the sequester era, the federal spigot that previously provided more than $3 billion in funds has been turned off. No private investors are interested without the sort of revenue or ridership guarantees that are forbidden under Proposition 1A.

But if the rail authority rejects Kenny's interpretation, that would foreshadow an appeal of his ruling and probably also prompt an indefinite delay on construction. Having ruled the state's plan violated two of Proposition 1A's key taxpayer protections, the judge is unlikely to say construction can begin while his decision is appealed.

This suggests the only way ground can be broken next year as planned  in the Central Valley is under extraordinary circumstances: a state appellate court issuing what amounts to an emergency suspension of Kenny's Aug. 16 ruling.

'The protections … must now be taken seriously'

Among those who consider this extremely unlikely is Quentin Kopp, the former San Francisco judge and state senator who is considered the father of the state bullet-train project and who helped write Proposition 1A. Kopp no longer supports the project touted by the rail authority. “It is not at all what we promised voters,” he told me in an interview in which he expressed deep satisfaction with Kenny's decision. “The protections in the proposition must now be taken seriously.”

If that happens, the bullet-train project is imperiled on other legal grounds as well. A key provision of Proposition 1A was the requirement that the train be true high-speed rail, defined as going the 400-plus miles from downtown Los Angeles to downtown San Francisco in two hours and 40 minutes or less.

But under the revised “blended” plan approved by Brown to reduce the project's estimated cost from $98 billion to $68 billion, such a result appears impossible. The “blended” blueprint would only provide true high-speed rail from San Jose to the northern reaches of sprawling Los Angeles. At each end, travelers would have to switch to regular commuter rail. Even a four-hour trip looks optimistic under such circumstances.

The rail authority has never been able to offer any credible documentation that the 160-minute requirement could be met under its revised plan. Instead, it cites “verbal assertions based on (the) skill, experience and optimism” of project engineers.

This weakness of the rail authority's plan is targeted in another lawsuit being heard by Kenny. Kings County, the Howard Jarvis Taxpayers Association and two other parties argue that the state cannot legally issue the $9.95 billion in bonds authorized by voters in 2008 because the “blended” system is not what they approved and is far from a “statewide high-speed rail system.” A state review panel cleared the issuance of the bonds in March.

Kenny's decision in that case is expected this month, according to the Fresno Bee.

Judge Michael Kenny’s Aug. 16 ruling that the California High-Speed Rail Authority had failed to meet funding and environmental standards that would allow it to legally begin construction of the project in the Central Valley has elicited little or no reaction from the two editorial boards that have been the bullet train project’s biggest backers since it got $9.95 billion in state bond funds in 2008 with the approval of Proposition 1A.

It’s the biggest news for the project in five years, and yet according to Nexis, all the Sacramento Bee could offer was this passing remark in an Aug. 18 editorial:

“A potential setback emerged Friday when a judge agreed with Kings County that the rail authority has to have financing and environmental clearances in hand for the first 290 miles – not just the first 130 miles. We think that ruling is ripe for appeal.”

Based on what? The ruling from Kenny is pretty much exactly what former judge and state Sen. Quentin Kopp predicted, and he was the key shepherd of Prop. 1A back in 2008. What specifically is “ripe for appeal”? Kenny taking seriously the taxpayer protections that helped get the bonds approved?

But at least the Bee editorial board had a reaction, however small and vague. Nexis shows the Los Angeles Times editorial board has been mum. No more juvenile “I think I can! I think I can” editorials for the time being, I guess.

State judge’s ruling should jeopardize federal funds

Meanwhile, as I wrote this week for City Journal, a state judge saying the project lacks the necessary funding for its initial operating segment creates a headache for the federal government — or it least it would if we were still a nation of laws.

“Kenny’s decision should raise some tough questions in Washington, D.C., too. The judge’s findings appear to undermine the Obama administration’s claim that the high-speed rail project remains eligible for billions in federal stimulus funds. The Department of Transportation awarded California $3.5 billion for the project, with most of the money coming from the $787 billion stimulus that Congress approved in 2009. Those stimulus funds are subject to all sorts of regulations and compliance rules. Federal regulations have a reputation for obscurity, but here they couldn’t be clearer: federal dollars may only go to state rail projects that have demonstrated a sound and viable ‘financial plan (capital and operating),’ ‘reasonableness of financial estimates,’  and ‘quality of planning process.’ Just because the federal government approved a grant doesn’t mean that it can’t cancel it later. The rules require state officials to report regularly on their progress, and the Federal Railroad Administration audits those reports. Presumably, the report for the third quarter of 2013 will note that a state superior court judge moved to block the project because it lacked the necessary financing to get started.”

But the problem for this theory is that it presumes the Obama administration cares what its legal obligations are. There’s little sign of that in Washington these days.

“If all of this doesn’t lead to the loss of federal funds, then critics of the Obama White House may add a new entry to the list of laws—the Affordable Care Act, the No Child Left Behind Act, and laws governing drug possession, illegal immigrants, and the disposal of nuclear waste—that the administration ignores or rewrites on the fly.”

We’ll see. But after talking to Quentin Kopp and Kings County’s lead attorney, I’m pretty sure the bullet train is getting the fate it deserves — whatever happens on the federal front.

And what does Sac Bee columnist Dan Morain think is news? What he sees as the backfiring of a petty, hypocritical attempt by Republican Congressman Jeff Denham to block high-speed rail by trying to make it subject to federal oversight:

“By sending the letter that led to the Surface Transportation Board’s involvement, Denham, who didn’t respond to my requests for an interview, managed to undermine his allies – or at least the enemies of his enemies – in the fight against the rail project.

“San Francisco Peninsula cities including Atherton and Palo Alto invoked the California Environmental Quality Act when they sued to block the train from running through their fancy towns. Now, the cities’ lawyers must convince the appellate court that the state law still applies.”

Apologist/attack dog for the Sacramento establishment

But does Morain put Denham’s by-any-means-necessary effort to block the bullet train in context? That going to extremes is justified when you are trying to block a boondoggle that was sold with lies in 2008, starting with the ballot language illegally written by the Legislature’s Democratic leaders?

Nah. You lecture  the Republican for hypocrisy.

And you only giving passing mention to the fact the state government has been kneecapped by a Sacramento judge for breaking the law on the same project.

It appears Dan Morain is positioning himself to succeed George Skelton as all-purpose apologist, attack dog and stenographer for the Sacramento political-media establishment.

Thank God for Dan Borenstein. Here’s the opening part of his sharp editorial for the Bay Area News Group:

Ignoring the week’s real news

“Finally, a judge officially recognizes what has been obvious for years: The bullet train empress has no clothes — or, in this case, money.

“Sacramento County Superior Court Judge Michael Kenny’s 16-page ruling issued Friday exposes the fraud perpetuated by the California High-Speed Rail Authority.

“Voters set restrictions in 2008 when they supported linking major metropolitan areas of the state: Money must be secured and environmental reviews completed before the authority authorizes expenditures.

“Kenny concludes it failed to clear either hurdle. The authority ‘abused its discretion by approving a funding plan that did not comply with the requirements of the law.’

“For years now, Gov. Jerry Brown and his puppet leading the authority board, Dan Richard, have been perpetrating a bait-and-switch on Californians.”

Earth to Dan Morain: Isn’t this, yunno, news? Isn’t this the big development on the bullet-train front?

Duh. Of course it is. But Morain will get more attaboys from his media and political buddies for going after alleged GOP hypocrisy. If his goal is to be George Skelton Jr., he’s well on his way.

By Chris Reed

There’s been quite a bit of good reporting done on the bullet-train fiasco. Mike Rosenberg of the San Jose Mercury-News and Lance Williams of California Watch jump to mind. But Ralph Vartabedian of the Los Angeles Times probably deserves top honors.

Vartabedian’s smart, nuanced beat reporting points discerning readers toward the truth — namely, that California’s project makes Boston’s Big Dig look like a work of efficient genius. The latest example was his piece this week on why and how some of the bullet train’s most ardent and longtime defenders have turned on the project. It’s full of interesting specifics that set up his future reporting on court fights over the project’s legality.

But it’s more than just this sort of sharp professionalism. Bullet train followers know all about Quentin Kopp’s misgivings and the lies and deceptions that have marked the project since well before it won $9.95 billion in bond seed money from state voters in 2008. Here’s what Vartabedian has done that is exceptional: His reporting has shown the bullet train fiasco is even worse than we imagined!

This is from his Jan. 27, 2013, piece, headlined “State has yet to buy any land for train”:

“Construction of California’s high-speed rail network is supposed to start in just six months, but the state hasn’t acquired a single acre along the route and faces what officials are calling a challenging schedule to assemble hundreds of parcels needed in the Central Valley.

“The complexity of getting federal, state and local regulatory approvals for the massive $68-billion project has already pushed back the start of construction to July from late last year. Even with that additional time, however, the state is facing a risk of not having the property to start major construction work near Fresno as now planned. …

“It hopes to begin making purchase offers for land in the next several weeks. But that’s only the first step in a convoluted legal process that will give farmers, businesses and homeowners leverage to delay the project by weeks, if not months, and drive up sales prices, legal experts say.

“One major stumbling block could be valuing agricultural land in a region where prices have been soaring, raising property owners’ expectations far above what the state expects to pay. …

“Delays in starting construction could set in motion a chain reaction of problems that would jeopardize the politically and financially sensitive timetable for building the $6-billion first leg of the system. …

“If the construction schedule slips, costs could grow and leave the state without enough money to complete the entire first segment. ..

“In addition to property, the rail authority still needs permits from the Army Corps of Engineers and approval by the San Joaquin Valley Air Pollution Control District, two more potential choke points that Morales says can be navigated.

Here’s an excerpt from “Rail line’s big dig,” the Nov. 13, 2012, piece by Vartabedian that outlines the project’s insane complexity:

“The sheer scale and scope of the bullet train’s push into Southern California, including traversing complex seismic hazards, would rival construction of the state’s massive freeway system, water transport networks and its port complexes. It is likely to be viewed in future decades as an engineering marvel — or a costly folly. ..

“The plan calls for bullet trains to shoot east from Bakersfield at 220 mph, climbing one of the steepest sustained high-speed rail inclines in the world. It would soar over canyons on viaducts as high as a 33-story skyscraper. The line would duck in and out of tunnels up to 500 feet below the rugged surface. It would cross more than half a dozen earthquake faults heading toward L.A.

“Tunneling machines as long as a football field will have to be jockeyed into mountain canyons to do the heavy, back-breaking work once left to Chinese laborers. New access roads and a corridor for high-voltage power lines will have to be carved through the Tehachapis to feed power-hungry trains. When completed and fully operational, the bullet train will need an estimated 2.7 million kilowatt hours of electricity each day — about a quarter of Hoover Dam’s average daily output. …

“One measure of the topographic challenge: Over that 141 miles from Bakersfield to Los Angeles, up to 59% of the track would run in tunnels or on viaducts, according to preliminary planning documents. …

“At this point, the rail authority estimates it will cost about $7.7 billion to build the 83 miles of rail from Bakersfield to Palmdale and about $12.5 billion to build the 58 miles of rail from Palmdale to Union Station. …

“Depending on the slope of the track, the tallest viaduct could be 200 to 330 feet off the ground.

“The same holds true for the segment through the San Gabriel Mountains, roughly following California 14.  …

“California’s bullet train will have to operate over some of the nation’s most seismically active terrain … . There are half a dozen faults between Bakersfield and Los Angeles, including the White Wolf and San Andreas, both capable of producing a 7.5 magnitude quake. Where high viaducts are near faults, engineers are considering reinforced concrete structures that would resist ground motion and have containment features to prevent a derailed bullet train from plunging to the ground … . At full speed, however, a bullet train would need four to five miles to make an emergency stop on level ground, and longer going downhill.”

I don’t know how anyone could read this without thinking about every other sentence, “The state of California is competent to pull this off?” Nor do I think anyone could read this and think the bullet train will only cost $68 billion. Triple that — at least.

Which brings us to the Los Angeles Times editorial page. According to Nexis, the last time it weighed in on the bullet train, in November 2011, here was the literally juvenile result:

 “It’s a gamble, and not one to be taken lightly. But gasoline isn’t going to get any cheaper in the future and the freeways aren’t going to get less clogged. We think California can find a way to get the train built. We think it can. We think it can….”

Yes, the L.A. Times editorial page editor actually invoked “The Little Engine That Could” in sickeningly cutesy fashion to stick up for this folly.

I bet, to invoke a Trent Dilferism, Ralph Vartabedian threw up in his mouth a little when he read that painfully childish and uninformed editorial.