Nearly 90 days since the hearing on August 12th, the ruling from Judge Kenny arrived, the answer- the Program Level Environmental Impact Report (EIR) for the Central Valley to San Francisco was found to be inadequate again. The Revised Program EIR had failed to consider significant impacts, failed to consider information found in the project level studies and failed to re-circulate the document for public comments.
In Atherton II, the court found that the Authority failed to give the public an adequate opportunity to comment on the significant impacts of sound, vibration and traffic impacts that would be caused by removing lanes on the Monterey Highway, south of San Jose. The Authority said they would study those impacts later in the more detailed Project Level EIR but the court ruled differently. “The court ruled that as soon as you identify those impacts you have to start studying them,” said Stuart Flashman, lead attorney in the case. Those impacts were found because the Authority continued project level study even though they were made to de-certify the Program Level EIR. The project level normally starts after the certification of the program level EIR.
Gary Patton, co-counsel, stated that “The court’s decision tells the California High-Speed Rail Authority that it can’t keep ignoring the public’s right to participate. The court’s decision in the Atherton II case says that the Authority failed in its duty to recirculate the CEQA document to get public comments, and this was a violation of the law.”
Rich Tolmach, President of the California Rail Foundation, declared that,” Twice in a row, the Authority ignored the requirements of the environmental law. The Judge found they still have not done a proper study.”
Stuart Flashman, lead counsel stated that, “In rejecting the EIR, the Court has upheld the principle that significant project impacts cannot be swept under the rug for later consideration, after the key decisions have already been made.”
David Schonbrunn, president of TRANSDEF, had some opinions about high-speed rail project as a whole and said “this is a classic the Emperor has no clothes in this case, the emperor has no project. I believe that when they came up with this $100 billion number, they knew it was over.”
This does delay the final certification of the Central Valley (Merced) to San Francisco segment for several months as the High Speed Rail Authority must address issues found deficient by the court and re-circulate the document to the public. It is unknown at this time whether this decision will delay certification for other central valley EIRs on tight timeframes due to federal funding requirements since they tier off the Central Valley to San Francisco EIR. This is noted in the Notice of Intent (NOI) http://www.cahighspeedrail.ca.gov/search.aspx?searchtext=NOI&folderid=0&searchfor=all&orderby=id&orderdirection=ascending for the project. There is also a question about how this might affect the selection of the Initial Operating Segment. If the Northern section to San Jose remains uncertified, it could force the Authority’s selection south toward the San Fernando Valley.
The ridership issue was not found in favor of the petitioners however this finding does not mean that the Authority’s ridership model is without issue. It is an extremely complex issue. The judge found it to be a disagreement among experts, much like the Authority had stated in public meetings when it attempted to answer criticisms by University of California at Berkeley, Institute of Transportation. (ITS) http://www.examiner.com/transportation-policy-in-san-francisco/california-high-speed-rail-results-for-hire-mega-project-estimate-failures
We are reminded of the Standard of Review which the court considers when studying an EIR. In the court documents there is a quote that demonstrates this principle. “Where an EIR is challenged as being legally inadequate, a court presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise.” (Sierra Club v. City of Orange - 2008). The burden of proof is therefore very difficult for petitioners to overcome using this standard.
The petitioners comprised of the Town of Atherton, the City of Menlo Park, the City of Palo Alto, the California Rail Foundation, (CRF) the Transportation Solutions Defense and Education Fund (TRANSDEF), the Planning and Conservation League (PCL), Community Coalition on High Speed Rail (CC-HSR), Patricia Giorni and the Mid-Peninsula Residents for Civic Sanity.
The briefing can be found on the TRANSDEF web-site http://transdef.org/Blog/Whats_hot.html
Comments