Summer is usually a slow time for most people including politicians but not in California.
Highly Unusual Action by the AG office: The CEQA twist
The Attorney General’s office representing the High-Speed Rail (HSR) Authority has done something quite unusual. It is arguing that the California Environmental Quality Act does not govern the High-Speed Rail Project any longer.
The state just filed a brief, actually an opinion, in which they stated a case for federal preemption involving a five-year old Atherton CEQA case, which concerned only the San Francisco to San Jose segment. The case was on appeal challenging ridership numbers and design impacts to residential areas.
Here’s how the new twist happened. The case was about to be heard before an appeals court on July 29th when a sudden flurry of activity occurred. July 10th the Attorney General’s office asked the court to consider a June 2013 Surface Transportation Board (STB) ruling about the HSR project and raised the question if the federal laws preempted state laws. See previous article. Attorney Stuart Flashman, the Attorney on this Atherton case and by the way, co-counsel for the Prop 1A (Tos/Fukuda/Kings county) decision expected this month, thought one reason might be they were afraid they would lose the Atherton case but perhaps there’s a bigger motive behind this action.
As a reference, Congressman Jeff Denham made the request for the Surface Transportation Board back in the Spring to look at the project, he was not sure if it would fall under their supervision. The thinking was that this federal group would take a closer look at the project and perhaps make some needed changes that would improve the project.
The STB makes decisions primarily when additional or new interstate railroads and they ruled this project is under their auspices. One of the points argued was that the Amtrak usage of the CV segment made it an interstate project. See more from an earlier article. The STB ruled in June that the rail authority could begin construction on a 65-mile stretch, subject to environmental clearance but they had not studied the entire project as was expected. Currently the rail project has only partial state environmental clearance for about 25 miles.
So the courts agreed to consider the AG’s question, before hearing the Atherton appeal. They asked each side to send in a brief with their take on the questions the Attorney General (AG) raised.
The AG’s office stated in their brief that in their opinion they believe the STB controls the project now and the California Environmental Quality Act no longer applies to the HSR project. The plaintiff’s will present their brief September 17th.
According to Tony Rossmann, principal of Rossmann and Moore, LLP, a well-respected environmental firm, believes this is highly unusual and in fact "distressing and disappointing" for the Attorney General to take this position.
“I can imagine many folks asserting federal preemption, but the State of California by and through the Attorney General is a public disgrace. Last time this happened in Ivanhoe Irr. Dist v. McCracken, 40 years of foul jurisprudence followed. There may be preemption but the State should leave it to others to argue that its own laws do not govern.”
Is there a conflict of interest with the state’s role in representing the High-Speed Rail Authority Board and being the enforcer of state law?
Rossmann believes there is certainly “institutional friction there” and explained that at times the AG’s office represents the state and is not on the same side as the citizens as demonstrated with this project’s environmental work.
But this is different. He explains that if the High-Speed Rail Authority is asking the AG’s office to raise a federal pre-emption defense, “which is somewhat politically shameful and it does not reflect well on the HSR Authority”, that’s one thing. He believes “the Authority is doing this because they are so frustrated that they’ve been caught, called on their inadequacies and now they’re trying to exempt themselves from the law. As a political matter that’s kind of distressing.”
But it’s quite another matter for the Attorney General would take on the case rather than suggest the Authority hire a private lawyer firm to do that. Rossmann believes the Authority wants to full force of the state behind the court action rather than a private firm.
He also believes something more important is at stake. “ It’s an extraordinary circumstance when the state itself argues that it’s own laws are pre-empted. Part of what we rely on is the adversarial process, is a forceful presentation of both sides and if the state basically throws in the towel, it makes it all too easy for the court to write a really unbalanced decision that doesn’t recognize the sharp distinctions that have to be drawn.”
Rossmann firmly believes the Attorney General’s office should have said, “We’re not going to put the power of the Chief Law Enforcement Officer behind an argument that state law does not govern.” If in fact the Authority had a ghost writer, a private law firm who wrote the actual brief, perhaps they and not the AG's office should have presented the case.
How will the environmental community react to the idea of CEQA being pre-empted on the HSR project?
“I think their reaction is going to be a very strong one. High-Speed Rail is a very tough issue for the environmental community because it’s something we all want but we want it properly done and properly managed. When I say we, I speak as a citizen of California not necessarily for the environmental community,” said Rossmann.
“This preemption thing is really a lightning rod.” He believes that even people who might think the high-speed rail project is good the way it is are going to be really upset about this. “I would imagine that political pressure will be brought to bear to have the Attorney General back off of this position. I wonder if the Attorney General herself and the really top leadership in that office are aware of the significance of what has been done in their name.”
Anja Raudabaugh, Executive Director for the Madera Farm Bureau, a party that sued the Authority and settled their case out of court, finds the situation astonishing. “It’s highly irregular, just because of the general nature of the Attorney Advocacy office for the state, not advocating for enforcement of state laws and in fact to advocating for the opposite. For the laws to be neglected and ignored is asinine and unheard of. The AG’s office entire role for the state of California is to advocate for the enforcement of the law and here they are doing the opposite. Every other state project has to go through this.” She added that CEQA “serves as a public vetting platform. It’s not my problem that they don’t have time to comply with a process that they are supposed to do,” said Ms. Raudabaugh.
William Grindley, author of various reports about the Rail project summed it up, “If the AG prevails, let's disband the Government of the State of California and only abide by what Washington thinks good for us. “
“We have met the enemy and he is us,” other complications:
But regardless how many favorable breaks the Authority gets from the courts, the Federal Railroad Administration (FRA) or the passage of laws exempting the project from state laws, the Authority still has severe time and operational problems.
In the end they have to make the ARRA dates. They must submit invoices for final reimbursement of expenses for the small segment in the Central Valley by the Spring of 2017 since final invoices are actually due six months in advance of the Fall 2017 deadline or so their documents show. The environmental work is about 2 years behind and the project start date is a year behind.
Supposedly in order for this date to be extended, Congress has to do it. Lately the mood in Washington is not to spend money especially with this controversial project, which has federal funding blocked at this time. Eventually someone has to ask, how late is too late to start?
The HSR Authority can’t finish the land acquisition for the Initial Construction Schedule in time to begin a summer start even a late summer date unless of course they go through a very bizarre process and begin construction in project friendly Fresno on a patch of land that they may have acquired by that time. There is no way they will clear the first 130 miles. Their own engineering reports it indicates a March 2014 start date and they are always late in their predictions.
It makes no sense construction wise to start in Fresno and backtrack north to pick up Madera County afterward when their direction is to go south. But they can’t turn in the southerly direction from Fresno because they have not completed their EIR from Fresno to Bakersfield and will meet with fierce opposition from Kings County. Winning this lawsuit might ease their dilemma but it does not eliminate the need to comply with the National Environmental Quality Act. (NEPA)
According to Anja Raudabaugh, Executive Director of Madera Farm Bureau, Madera offers have been slow and inaccurate including some offers that had land erroneously included. Apparently the rail authority personnel have been operating in some cases with old maps and have included bad information in the offers.
Regarding their legal settlement with the HSR Authority, while the Authority finally sent the entire $5 million check after a default letter was sent by their attorneys, they have not complied with the condition to have an Agricultural mediator help the farmers during the offer process. According to Raudabaugh, the Authority sent a rather terse letter stating they were not required to have this position filled during the offer stage. She says that was clearly not what was negotiated. This remains a key area disagreement since the farmers need help now, “someone on their side,” during the offer phase.
The Wye problems:
In addition if and when the Authority wishes to go north from Fresno, they will eventually have to deal with a contentious area called the Chowchilla Wye and issue a supplemental EIR/EIS. This area was excluded from the original environmental work for the Merced to Fresno section. It was supposed to be studied later in the Merced to San Jose segment but they changed their mind and want to amend the Merced to Fresno EIR. See the article about issues with the Wye.
In addition, the proposed routes in the Wye area have not been cleared by the Army Corp of Engineers. Also a very sticky issue looms which is the requirement for the Rail authority to obtain permits for a river crossing. The role of the Army Corp is to protect and maintain the nation's waterways. It requires a detailed bridge design done and then it could take up to six months to review it. “Starting the project early is a helluva lot of money and risk if the Army Corp does not issue a 404/408 [permits] at the end of the day for the river crossing, “says Anja Raudabaugh.
Reality Check for the project:
Please read this excellent article outlining where we are as far as a realistic view of the viability of the project and the time crunch by the LA Times writer, Ralph Vartabetian titled, “Shovel-ready bullet train construction delayed again.” http://www.latimethezs.com/news/local/la-me-bullet-delays-20130812,0,4180504.story
In the end, the Authority may be seeking shelter from more restrictive state laws and future lawsuits by “back-dooring” through the five-year-old Atherton Court case. The Authority may believe that the project will be in friendly waters with the feds in control of the project but they are forgetting the “rule of law,” should apply in Washington, DC too or at least we all hope so.