Back in October, the High-Speed Rail Authority made a fourth attempt to circumvent California’s environmental laws for the high-speed rail project. See Calwatchdog article written a few days ago.
The Rail Authority filed a petition October 9, 2014 pleading to the Surface Transportation Board (STB) to grant them what’s known as Declaratory Relief. If granted this would essentially take away a remedy, namely construction injunction, available to litigants today under the California Environmental Quality Act. There are seven suits filed presently under CEQA regarding the Fresno to Bakersfield segment.
After many thoughtful replies by county and city entities and the public concerning this declaratory relief request, the Authority filed a 26 page reply plus reference materials even though it’s against the rules of the STB. The Authority is not supposed to reply to replies and they even stated so in their brief. Their original request was 17 pages with no reference materials on October 9, 2014.
While the legal points are very complex, there are some things that are really easy to understand. The Authority believes they can violate the rules and even offered new legal issues not previously discussed in their original request to the STB. If they had the last word, the opponents wouldn’t even be able to address the new points raised.
Stuart Flashman representing CC-HSR organization, TRANSDEF and the California Rail Foundation is asking for a 10-day extension if the STB accepts this inappropriate reply. See his brief filed November 20, 2014.
While these organizations are not a party to the Central Valley environmental lawsuits, as the Rail Authority points out in their current brief, they are no stranger to high-speed rail issues. They have been litigants in other suits including the controversial Atherton II suit. That suit is currently being used as a precedent in a request for a California Supreme Court review for another appellate decision, called Friends of Eel River. More later about this case.
Stuart Flashman is also co-counsel in the Tos, Fukuda,Kings County suits and also represents TRANSDEF which is challenging the worthiness of the high-speed rail program to receive Cap-and-Trade dollars. This link provides an excellent summary of the issues at hand with the cap-and-trade suit and most other suit briefs are filed on this site as well.
History: (Skip this if you know this part)
The Authority says they have asked for this declaratory relief plea is to “eliminate controversy and remove uncertainty.” They are in a hurry and don’t want any body or anything stopping them from starting the construction.
California’s environmental laws and the possible preemption of federal law are the issues at hand since the STB declared it is in charge of California’s development of a high-speed rail line. The STB determined this back in 2013, the reason they took control was despite the fact the California high-rail project will be built in California only, Amtrak goes across state lines and will in fact use some of California’s tracks.
But the idea to file a request like this for clarification is usually done when there is no time, when there is an emergency and there clearly is no emergency.
Out of 7 suits filed no one at this time asking for construction to stop, not one is having a hearing until the summer of 2015 and the Authority is not ready for construction anytime soon for many reasons including the lack of progress on the acquisition of land. The Fresno Bee just published a progress report on the land acquisition progress, in short they are way behind.
Legal issues: Similarities and differences with Friends of Eel River vs. Atherton case:
But make no bones about it, there are complex legal issues that have surfaced recently. It is possible that the issue of state vs. federal supremacy will be hammered out because of two cases. The high-speed rail case and a case called, Friends of Eel River case, which received an unsatisfactory ruling from Marin’s First Appellate Court. That court declared the federal preemption overrides California Environmental Quality Act. That Marin court even said the Atherton Appellate decision was wrong in their findings. The 3rd District Appellate court in Sacramento Court issued a ruling for the Atherton II case on July 24, 2014 that held that federal preemption did not apply to a State-owned rail project. It also upheld the lower court’s decision on the environmental issues petitioners had appealed regarding the San Francisco to San Jose high-speed rail segment.
In the Friends of Eel River case, the North Coast Railroad Authority (NCRA) wanted freight service of up to three round-trip trains per day, six days a week. NCRA prepared and certified an environmental impact report in compliance with the California Environmental Quality Act (CEQA), thinking that’s what they were required to do but later determined it was a mistake and that the Interstate Commerce Commission Termination Act expressly preempted application of CEQA to the project.
One of the differences between this case and the Atherton case is while North Coast mistakenly thought they had to follow CEQA, the HSR Authority knew they had to follow CEQA and continued to follow state law even after the STB ruled they were in charge of the project back in 2013.
If the Rail Authority believed that federal preemption existed why didn’t they declare so immediately and settle it at that time? It’s only now when they are in trouble without a construction start date and stuck with time requirements to spend the American Reinvestment and Recovery Act of 2009 (ARRA) money by September 2017, they want to remove remedies offered by California’s environmental laws that could further delay the project. With $3.2 billion dollars in federal grant money at stake, they are trying to remove any obstacle though frankly even without lawsuits they are in trouble because they are clearly not ready for construction. Why? Because of their lag in environmental planning, lack of sufficient funding, uncompleted design plans, lack of rail agreements and the purchase of real estate needed for construction. Mega projects like this take time, time they don’t have.
Another similarity is Friends of Eel River while it’s operation is totally the state of California like the high-speed rail project but the difference is, it has only freight trains within the state using that system. It does not cross any state lines even with the freight activity. According to a legal article , a pro-rail development article, by JD Supra, “in evaluating the NCRA’s preemption defense, the [Marin] appellate court focused on the “expansive language” of ICCTA’s “broadly worded express preemption provision,” which gives the Surface Transportation Board exclusive jurisdiction over transportation by rail carriers and the construction, acquisition and operation of railroad tracks and facilities, even if located entirely in one state.
In the case of the High-Speed Rail project, the Surface Transportation Board (STB) ruled that they were in charge of the High-Speed Rail project due to the interstate activity of Amtrak however they went along with examining the high-speed rail project from a CEQA and NEPA (National Environmental Quality Act) standpoint as did the Federal Railroad Administration. (FRA)
In a 92-page brief from Friends of Eel River, they are asking for a review of the Marin Appellate decision and are using the Atherton decision as a justification for the Supreme Court to take the case.
Here is a pro-railroad development article that does a good job explaining the Friends of Eel River case if you want to read more about this case.
If the State Supreme Court takes the case, in the end the court could decide the appellate decision for Friends of Eel River was incorrect and affirm the Atherton decision. Or they could affirm the Friends of Eel River case and strike the Atherton case. Another outcome is the court could decide to depublish the Friends of Eel River and leave the Atherton case as the precedent setting case. The State Supreme Court already ruled they would not depublish the Atherton ruling, October so perhaps that holds a hint to what the court might do. Perhaps they agreed it was a valid ruling and important to leave as a precedent setting case.
As a reminder currently the Atherton Case said that the Authority must abide by CEQA. http://transdef.org/HSR/Appeal_assets/Ruling.PDF
“The Authority’s position appears to be that it alone has discretion to decide whether to require its project, the HST, to comply with CEQA. It argues that forcing it to “take actions that the Authority in its discretion law [sic] has elected not to pursue, would turn the market participation doctrine on its head.” In making this argument, the Authority ignores that its power is circumscribed by the provisions of Proposition 1A, the voter-approved bond measure to fund the HST. The Authority’s discretion is not unfettered; it must follow the directives of the electorate. As explained ante, one of those directives is compliance with CEQA.”
One of the reasons the Sacramento 3rd district Appellate Court ruled in the Atherton case because of a concept called Market Participation Exception. The Authority is not regulating private parties, but only regulating itself as the owner/proprietor of a business venture (e.g., a railroad). A state has that right, and according to the court should not be subject to federal preemption. Usually the Attorney General makes that argument but in this case it’s the project opponents made the case.
When the Atherton case appeals court ruled that the Market Participant Exception applied to the Authority, much to the chagrin of the Authority that meant that CEQA was not preempted and it applies to this project.
This sets up the perfect scenario of why a State Supreme Court ruling is needed since there are opposing decisions from two appellate courts with some similar circumstances.
While the Authority no doubt may like this opportunity for a second bite of the apple to overrule the Atherton Decision they do not want the STB to wait until this situation is sorted out. Project opponents of the High-Speed Rail project asked that the STB wait until the California State Supreme Court decides if it will take the case and if yes, for the STB to wait until the case is decided.
See attempt #2 about the Atherton case. http://calwatchdog.com/2014/11/06/high-speed-rail-seeks-to-run-over-ceqa/
Whether or not the STB allows the “reply to the reply,” it’s sort of a catch-22. After all the STB can still can read it. It’s similar to a court ordering a jury to disregard what they just heard. It’s out there and opponents would not get the chance to reply even to new legal issues raised by the Authority in this 11th hour attempt at getting the last word.
Private law firm paid for by the California taxpayer:
The Authority has chosen Nossaman LLP with now a $19 million dollar contract, to lead the charge for them with the STB issues. They have a $19 million dollar contract. The Authority says later in 2015 at the end of the Nossaman contract they will have the time for “Authority staff to develop a non-government legal services contracting plan and engage in a competitive process to obtain best value for qualified legal services.” But not now because their services are so urgently needed. Think about it. California taxpayers are funding efforts to overturn California’s stricter environmental laws.
The Authority pleads that they need this private attorney group because the Attorney General lacks the specialized subject matter knowledge this D.C. firm. There is no doubt this firm is uniquely qualified since the lead attorney working the case is the former board chairman of the STB, leaving in 2002. http://www.nossaman.com/lmorganAppearances.
And for the Authority’s sake it is probably better for appearances sake that they have a private attorney group rather than the Attorney General’s office. As the 3rd District Appellate justices said:
In the Atherton appellate judges ruling, made July 24th said this: “This case is unusual to say the least; the state entity, represented by the state’s Attorney General, is inexplicably arguing for federal preemption instead of defending the application of state law.”
If the California Supreme Court takes the case it would seem they would be in a similar position as the AG’s office if they rule against upholding the state’s environmental law and gives the nod to federal preemption.