First of all, being in the Appellate Court was a different experience than the State Superior court. The Appellate Court, 3rd district in Sacramento was everything you’d imagine an important courtroom should be. It had exquisite wood paneling and large columns of carved redwood, sets of church-like long rectangular windows. It made the atmosphere feel important. You wanted to speak in hushed tones.
There was very limited seating and no jury box and the room was full. Security was very tight, no cellphones, cameras, I-Pads or computers were permitted. Audio recording was permitted by journalists if they obtained permission in advance but absolutely no cameras were allowed. Anything electronic was confiscated at the door and you were given a claim check so you could retrieve your goods on your way out.
As far as the case itself, while it was a California Environmental Quality Act (CEQA) appeal, most of the time was spent on Surface Transportation Board (STB) issues, that is, federal supremacy vs. state’s rights. The judges will rule, whether both CEQA and the National Environmental Quality Act. (NEPA) will guide the project or will CEQA be excluded and will just NEPA apply.
There was only 15 minutes allowed on each side and if the justices asked questions that did not extend the time period each side had to speak.
The Attorney General’s office argued that CEQA does not apply for the High-Speed Rail project since the STB ruled it was in control of the project. Here is the ruling, look closely at page 11 as to why they ruled this way. Stuart Flashman stated that CEQA was a more advisory law and not a make or break deal for the project. Using CEQA was a promise made to the people of California when they voted for Prop 1A. This subject is extremely complex and many attorneys have never experienced a subject like this. Here is one of the many replies the Petitioner filed.
As background, The STB ruled that the high-speed rail project was part of an interstate high-speed rail network with Amtrak. In fact Amtrak was being used as independent utility. In addition Amtrak and HSR could have blended operations and provide connectivity as Amtrak crosses state lines. Authority first argued against the STB jurisdiction but it was overruled. Read the original decision the interesting part begins on page 11.
Legal observers believe from the tone of the questions asked by the justices, the court does not seem to be sympathetic with the state arguments and probably will not rule that federal preemption replaces the state’s stricter environmental laws.
There was little time to discuss the actual Atherton appeal issues. Not many questions arose but it seemed that one of the justices believed that all the detailed impacts of the project should occur in the project level EIR. Therefore listening to this one judge’s questions, that justice did not seem sympathetic with the plaintiff’s arguments however there are 3 justices and two out of three have to agree.
If you are not familiar with California’s environmental documents, first you do a 30,000 ft. examination called a Program level environmental impact study (EIR) and you discuss a wide range of options and impacts for a project. Next after you gather lots of detailed information, that’s called a project level examination which might be considered a 5000 ft. level study. It’s a tiered process.
In this case though it was different. The Authority was doing them simultaneously, since the court ruled against part of the work they did in the program level EIR and the Authority did not reveal some key factors about impacts they discovered as they were preparing the project level EIR.
Stuart Flashman’s argument was they had the obligation to disclose what they knew in the Revised Program EIR since key decisions about routing the train through the peninsula were at stake. Would it be Pacheco Pass or would it be the Altamont Pass. Read the story-like explanation through the TRANSDEF site about the appeal of this case. Ironically the Atherton II Appeal was also first judged by Superior Court Michael Kenny, the same judge that ruled against the High-Speed Rail Authority in the Tos/Fukuda/Kings County Case. The difference is the state is appealing that case which will be heard in the same courtroom.
On Friday, May 23, 2014 the Appellate court will hear the appeal of the Tos/Fukuda/Kings County ruling. This is a civil case. This is the one that Judge Kenny ruled against the High-Speed Rail Authority and required that they rescind their funding plan because they hadn’t finished the environmental work and neither did they have the funds to complete the entire usable segment of 300 miles. These were requirements and promises made to the voters in the Prop 1A bond measure. This appeal case starts at 9:30 am. See court documents and the story behind this case known as the extraordinary appeal on the TRANSDEF site.
Both court decisions could take as long as 90 days to be announced but legal observers predict it could come earlier in 30- 45 day time frame since the state has asked for an expedited process.