Next week, November 8th, Judge Michael Kenny will hear arguments on what the consequences will be concerning the violations of Prop 1A. In nutshell the court ruled the Authority's funding plan was inadequate in dollars and environmental work and in doing so the High-Speed Rail Authority overstepped its bounds. The Attorney General's office is defending the Rail Authority and they believe there should be no consequences. They are using federal money now, not Prop 1A money and the Legislature had the right to approve the plan, as imperfect as it was. The Plaintiffs of the Prop 1A case believe the Rail Authority should not be allowed to move forward since they are obligating state bond funds. They should be made to obey the key provisions in the bond measure.
Dan Walters, esteemed political journalist and Dan Richard, Chairman of the High-Speed Rail project (HSR) have a difference of opinion on the merits of the high-speed rail project. Walters wrote a rather critical view of the project and summarized the situation as a question of political integrity for the Governor. “If the bullet train cannot honestly comply with the requirements that voters were told would guard against flim-flam, it should be derailed.”
Mr. Richard obviously took offense and came back with an emotional defense of his ailing rail program and ends his commentary with this quote, “The reality is that, with Gov. Brown’s support and under his watchful eye, we are going forward with a high-speed rail project that the people voted for, the Legislature approved and California needs.”
Dan Walters wrote in his Sacramento Bee article that “Legal maneuvers aside, it’s quite evident that the project, as modified by Brown’s handpicked High-Speed Rail Authority to overcome other political and financial hurdles, cannot comply with the plain language of the bond ballot measure – language that bullet-train proponents told voters would protect the project’s integrity.”
Most would agree with Walters’s opinion that this is not the “rail project that the people voted for.” It’s a classic “bait and switch.”
This defense that Dan Richard is putting up is very different from what his opinion of the project was when he joined the HSR Board in August 2011. At that time, he was widely quoted as telling the Governor that this program would come back and “bite him in the ankles.” But after two years, that’s all changed.
What Dan Richard quoted positive commentary from public agencies, however he omitted parts that were not so flattering. Why would he do that?
In 2005, Professor Bent Flyvbjerg, Megaproject expert hits on a possible explanation. Flyvbjerg identified two main causes of misinformation in policy and management: strategic misrepresentation (lying) and optimism bias (appraisal optimism).
Dan Richard just may be the victim of optimism bias, which boils down to the tendency for people to be overly optimistic about the outcome of the planned action. This includes over-estimating the likelihood of positive events and under-estimating the likelihood of negative events. No doubt the man believes in his project and wants it to be successful.
Richard argues in his article that the judge got it all wrong; he was looking at the old funding plan and old business plan. He says, “The new team wrote a revised business plan, which improved ridership and cost estimates, and adopted a “blended approach” to bringing down the price, while still meeting the requirements of Proposition 1A. “
Comment: No plan- neither the funding plan or business plan written since 2011 complies with Prop 1A, period.
Once the concept of the Initial Construction Section (ICS) was developed, that was the critical point that turned the project on the path of illegality. That is, the Authority well knew it couldn’t finish the environmental work or gather $31 billion dollars for the entire Initial Operating Section so they invented the smaller segment called the ICS. The judge did not buy that and that’s why he ruled against the Authority.
December 3, 2010 Board Meeting, under Curt Pringle’s leadership as board chairman, the board was about to vote on where construction would start. Deputy Attorney General was never consulted before the meeting and was put on the spot at the meeting and asked if the Initial Construction Segment they were about to vote was legal. The answer was no, it was not a usable segment. Diridon changed his motion. " Let me stress then in the motion which I am going to offer that I'm using the words "starter construction project and not anything else." So you can use those words then into build in useable segment, as you would like to with the staff when we communicate with the legislature. This is a starter construction project. This does not relate to usable section, operable section." http://www.examiner.com/article/california-high-speed-rail-central-valley-route-selection-and-violations-of-ab-3034
And that’s what the court ruled, the Initial Construction Section (ICS) did not relate to what was supposed to be the construction of the first usable segment. They had to build not 130 miles but more than double that to the San Fernando Valley. To this day, the environmental work is incomplete and the funds, all $31 billion are not in the bank.
There was only one funding plan approved by the rail authority. It didn’t have the final selection of the Initial Operating Segment South, it had both a northern and southern section included but it did not include the billion-dollar gift for the “bookends.”
Bookend funding is money for both San Francisco Bay Area and Los Angeles area and is designed to immediately give a boost to commuter rail and other transit projects. This spending, out of bond money meant for high-speed rail, was designed to minimize the risk that would occur from pouring all the money into the central valley. Frankly it was designed to secure votes in the legislature and to obtain approval of the Peer Review group who had been highly critical of the program.
Note the article about the Peer Review’s change in tune article. http://www.examiner.com/article/the-peer-review-group-report-and-a-chang... It also quotes the Legislative Analyst that the plan they did not comply with the law. The change to spend money on the bookends definitely mellowed the opinion of the Peer Review group but did not completely wipe away their concern about the lack of funding for the entire project. They remain firm and insist the HSR program needs a steady funding source.
Also the blended provision, approved in April 2012, is not in Prop 1A, only connectivity funds were designed to be used for commuter rail. Some of these projects might be useful someday to high-speed rail if and when it is built.
Rail Modernization Program:
Lately the HSR Authority has taken a new approach, Dan Richard has been talking about a comprehensive rail program for the state as a better approach. He said in his article, “the reality is that we can’t build enough new freeways and airport runways to meet the demands of our fast-growing population; even if we could, the cost would far exceed that of modernizing our rail system. Moreover, our new approach helps bolster other critical rail projects throughout the state.”
October 5th Dan Richard gave a talk to the Rail Pac group. It was an entertaining 25 minute talk but on a serious note showed the change in approach of the current board.
See: 10:20 to 15:00 http://youtu.be/PnHzBbpmChM> Here’s one of the ideas he talked to them about. He says, as exciting as it may be to ride a train 220 mph that can get you to LA to San Francisco in 2 hours and 40 minutes which is fully electrified and paying for its self, that’s not enough and it’s not the right vision. “ He says in order to be successful they cannot look at high-speed rail as an insulated, stand alone program but instead it’s a backbone of an entire rail modernization program that works with the existing rail networks both heavy and commuter rail, all these things working together have a synergistic effect.
Comment: What he says makes sense but short of the use of the connectivity funds in the bond measure meant to help in just the way that Richard speaks of, Prop 1A does not allow for high-speed rail dollars to be spent on other rail projects. The writers of the bond measure wouldn’t have separated the funds the way they did if this was the vision. The connectivity funds of around $950 million dollars of the $9.95 billion, the rest of the bond funds are exclusively for building the high-speed rail project. That was the vision that was proposed to the public at the time of the vote- it was to build a high-speed rail system. See Quentin Kopp's declaration - paragraphs 8 and 9.
What Dan Richard proposes might be a great idea; in fact a better idea than what was originally planned however most agree it would require another vote by the public. Substantial changes to a bond measure are not permitted in this state unless specifically stated in the bond measure. Those passages that are in plain English cannot be tampered with and that’s what the court ruled.
The Legislative Counsel’s report:
Dan Richard says this: “Walters knows the Legislature voted to approve funding based on revisions that the Legislative Counsel deemed were in compliance with the law.”
Comment: Yes, it's true the legislature voted for the funding. However, Senator DeSaulnier and Senator Simitian, requested the report by the Legislative Counsel and received the Legislative Counsel Opinion prior to the funding vote in July 2012. They wanted to know if this new blended plan in April 2012 business plan was legal. The content obviously didn’t convince them of the legality of the program, which is why they voted no for the funding.
The report says this: “ A blended system presents additional challenges because of the need to accommodate both high-speed trains and conventional trains on existing. Albeit upgraded, rail corridors, this results in potential impacts on the capacity of the corridors to, among other things, efficiently handle both types of train services and on the ability to meet required travel times.” They also say this, “We are not able to independently verify the authority's assertion that the required travel times can be met under the blended system”
They also said the four-track option had to be on the horizon in order for the blended plan to be legal. That is not what’s being offered to the public today with Senator Hill’s passage of SB 557. The thrust of that bill is an attempt to protect the peninsula cities from a 4-track system. On Hill’s website quoting from a Palo Alto Weekly article, the first sentence it says this: “Legislation that makes it next to impossible for the California High-Speed Rail Authority to build a four-track rail system on the Peninsula was signed into law Friday by Gov. Jerry Brown.” It the bill was rock solid enforceable, which it is not, it would seem that based on what Leg Counsel wrote, they would not then agree that the blended system was legal.
The Legislative Counsel report also used wiggle words like, “ we are not aware of any facts that would prevent us from believing”… They specifically leave travel times muddy. They do not say that the plan can meet travel time requirements and almost proved the opposite, the report states that San Jose to San Francisco segment had travel time simulations done by Caltrain in fact that point to travel times that cannot comply with Prop 1A, which is 30 minutes.
General Accounting Office:
The GAO did not rave about the project. They gave the project a passing grade. Read the first page and you will find they did not wholeheartedly endorse the project. http://www.gao.gov/assets/660/650608.pdf
The first sentence of the report states this, “Based on an initial evaluation of the California High Speed Rail Authority’s (Authority) cost estimates, GAO found that they exhibit certain strengths and weaknesses when compared to best practices in GAO’s Cost Guide.” They also say later in page one, they remain concerned about the availability of federal funding for the project.
Well after the funding vote, the State Auditor has made public comments that the project had improved substantially but it does not say they are in compliance with the law, that’s not their job.
See what they write about the program: http://www.bsa.ca.gov/pdfs/factsheets/2011-504.pdf .
To repeat, Dan Walters ends his article with this: “If the bullet train cannot honestly comply with the requirements that voters were told would guard against flim-flam, it should be derailed.”
In the end, it will be the court’s job, not Dan Richard’s or the Governor’s, to determine if the High-Speed Rail project is in compliance with the law, the people’s bond measure.
It is a question of political integrity for Governor to continue to push a plan that a state judge ruled was illegal, the public didn’t vote on and one they no longer want.
See Dan Walters Opinion piece:
See Dan Richard Opinion piece: http://www.sacbee.com/2013/10/23/5843515/another-view-walters-misleads.html
See previous articles written by this author who has followed the project for four years now. http://www.examiner.com/transportation-policy-in-san-francisco/kathy-ham...