Third District upholds high-speed rail EIR over Peninsula towns' objections
- William Fulton
- Jul 31, 2014
- 3 min read
In the latest decision on a long series of legal challenges by Peninsula cities and environment groups to the California High Speed Rail project, the Third District Court of Appeal has upheld the final programmatic environmental impact report for the portion of the project that calls for a route from the Central Valley over the Pacheco Pass into Bay Area suburbia.
Perhaps most significantly, the Third District, in Town of Atherton et al. v. California High Speed Rail Authority, C070877, ruled that the programmatic EIR does not need to consider specific proposals for a vertical alignment of the rail route along the Peninsula, even though options for that vertical alignment were identified before the PEIR was finalized. Writing for a unanimous three-judge panel, Justice Elena Duarte relied heavily on the California Supreme Court's ruling in In Re Bay-Delta etc., 43 Cal.4th 1143 (2008).
In that case, the Supreme Court ruled that the Bay-Delta project - a 30-year program to restore the ecological health of the Sacramento-San Joaquin Delta - did not have to identify specific water sources to implement the CALFED program in the programmatic EIR. " Justice Duarte quoted the Supreme Court as saying that requiring more specific detail "undermines the purpose of tiering." She added: "That such project-level analysis occurred before the program EIR was certified did not require in Bay-Delta, and does not require here, inclusion of the analysis in the program EIR."
The Third District also rejected claims that a supposedly faulty ridership-revenue analysis and failure to include an alternative through Altamont Pass, rather than Pacheco Pass, invalidated the PEIR. The court also ruled that the plaintiffs' lawsuit was not pre-empted by federal law.
On the ridership-revenue issue, the plaintiffs jumped on the well-publicized dispute (see http://lat.ms/1nPIJaV) over ridership methodology between Cambridge Systematics, which prepared the ridership projections, and UC Berkeley's Institute of Transportation Studies, which conducted a peer review of Cambridge's analysis. ITS acknowledged that Cambridge had "followed generally accepted professional standards" but highlighted one methodological concern, which was that Cambridge had used some assumptions typically associated with intra-regional travel, even though High Speed Rail would be an inter-regional service. Cambridge claimed it had changed the methodology to conform to recent observed data from travel surveys. The court found the plaintiffs had not proven their case and that the issue was "a dispute between experts that does not render an EIR inadequate" under CEQA Guidelines Section 15151.
The Altamont Pass alternative argument was perhaps the most technical. The plaintiffs argued that the High Speed Rail Authority was required to consider a broader range of alternatives as a result of a previous court ruling in an earlier phase of the litigation because Union Pacific opposed use of its right-of-way for the Pacheco Pass alternative. A group called Altamont Advocates hired a firm called Setec to put an Altamont Pass alternative on the table. The plaintiffs in the Atherton case said the Authority erred in not including Setec's alternative in the PEIR's alternatives analysis.
The court's discussion of the Altamont Pass alternative included several highly technical discussions. Among other things, however, the court concluded that the Altamont Pass alternative was similar to other alternatives considered in the PEIR. For example, the Altamont alternative would require replacement or expansion of the currently unused Dumbarton rail bridge across San Francisco Bay. Although the PEIR didn't consider the specific Setec alternative, it did analyze the Dumbarton bridge in its alternatives analysis and concluded that the Pacheco route, which requires no Bay crossing at all, is preferable - because, among other things, of the impact on the Bay and the Don Edwards San Francisco Bay National Wildlife Refuge. The Setec alternative tried to get around this by proposing a variety of mitigation measures, but the court knocked that argument down by saying: "The Setec proposal offered only some possible mitigation measures and it failed to address the concerns about endangered and threatened species and construction through the wetlands of the Refuge. The Authority was not required to consider anew an alternative it had already considered and reasonable rejected."
On the pre-emption issue, the High Speed Rail Authority had argued that the Interstate Commerce Commission Termination Act pre-empted state law. The court found that under the "market participation doctrine" - which distinguishes between the state's role as a regulator and the state's role as a market player - High Speed Rail qualifies for an exemption from federal pre-emption. In other words, because the state is building the project, rather than regulating a private railroad building the project, it is subject to CEQA.
The Case: Town of Atherton et al v California High Speed Rail Commission, C070877 (filed July 24, 2014). See http://www.courts.ca.gov/opinions/archive/C070877.PDF. For the High-Speed Rail Authority's documents on the Bay Area to Central Valley route via Pacheco Pass see http://www.hsr.ca.gov/Programs/Environmental_Planning/bay_area.html.