Palo Alto, Menlo Park and Atherton are already involved in two lawsuits against the California High-Speed Rail Authority (Palo Alto joined the first suit as a "friend of the court" and the second suit as a party), the agency charged with building the voter-approved San Francisco-to-Los Angeles system. The litigation has already forced the rail authority to twice de-certify and revise its program-level Environmental Impact Report (EIR) — a sweepingly broad document that establishes the Pacheco Pass as the rail system's preferred route to the Peninsula and that considers some of the project's environmental impacts.
The rail authority's board of directors is scheduled to re-certify the document at its April 19 meeting.
But the rail authority's approval of the newly revised EIR is unlikely to stop the wave of criticism or litigation flowing from the Peninsula. Stuart Flashman, who is representing the three cities and coalition of nonprofits in both lawsuits, said the plaintiffs are looking for broader revisions to the environmental analysis, including an analysis of the "blended" design that the rail authority has recently embraced for the Peninsula segment of the rail line. The rail authority has committed to the blended design — which was advocated by state Sen. Joe Simitian, D-Palo Alto, U.S. Rep. Anna Eshoo, D-Palo Alto, and state Assemblyman Rich Gordon, D-Menlo Park — in a new business plan that the rail authority's board of directors is set to approve Thursday morning.
But while the authority's revised EIR mentions the blended approach, which calls for high-speed rail and Caltrain to share two tracks on the Peninsula, it focuses its analysis on the rail authority's original and locally unpopular vision of a four-track system along the Caltrain corridor. From the perspective of the cities and rail watchdogs, that remains a major problem.
"That's a really big issue," Flashman told the Weekly. "On the one hand, you have the business plan saying we're doing the blended system. On the other hand, you have the newest EIR still talking about the four-track system. There is a real disconnect."
City officials have maintained over the past few months that the rail authority's decision to keep its program EIR focused on the four-track system constitutes a betrayal of its promise to only consider the "blended" system, which is expected to include fewer environmental impacts. Councilman Pat Burt, a member of Palo Alto's rail committee and chairman of the five-city Peninsula Cities Consortium (which includes Menlo Park, Atherton, Belmont, Burlingame and Brisbane), has consistently called for the rail authority to revise its program EIR to reflect the rail authority's new commitment to the blended system.
But Lance Simmens, spokesman for the rail authority, said the authority has no plans to make revisions to the EIR beyond those ordered by the court. Simmens told the Weekly that analysis of the blended system will be included in the project-level EIR, a segment-specific analysis that includes more engineering and design details than the program-level document. The revised program EIR refers to the new business plan and notes that the plan "includes an emphasis on a blended system approach, early investments, and delivering early benefits to California travelers by using and leveraging investments as they are made." But Simmens said the rail authority believes the program EIR adequately covers the blended approach, which will be further analyzed in future studies.
"We've made the revisions in the program-level EIR that we feel comply with CEQA (California Environmental Quality Act) and the court," Simmens said, "And we're not going to make further changes to the program-level EIR."
This response is unlikely to satisfy cities like Palo Alto, where the City Council voted in December to adopt as the city's official stance a call for the project's termination. The council had supported the high-speed rail in 2008 but later turned against it as its price tag ballooned and as critics and independent auditors began to uncover problems with the rail authority's ridership and revenue projections. It was these problems that prompted the council to join the second lawsuit against the rail authority in October 2010.
This week, the Palo Alto council met in closed session before its Monday meeting to discuss its strategy on high-speed-rail litigation. At the discussion, the council authorized the city to file an appeal in the second lawsuit against the rail authority. Concurrently, the Menlo Park council decided on Monday to file an appeal in the first lawsuit. Menlo Park also released a statement expressing its concern about the program EIR that the rail authority is preparing to approve.
"The council's main concerns are that all of the EIRs thus far have confused on a four-track system and that none of the EIR versions have adequately considered or analyzed the 'blended' system set forth in the new business plan," Menlo Park Public Works Director Chip Taylor said in a statement Wednesday.
Taylor also wrote that the rail authority's EIRs do not "address the impact of having an elevated structure along the Peninsula" and that the council is concerned that the "ridership study is inadequate." Menlo Park officials also argued that the rail authority should make it clear that it would not seek to circumvent the California Environmental Quality Act in evaluating the impacts of the San Francisco-to-Los Angeles system.
"For the City Council to fully support the blended system, the High-Speed Rail Authority must provide certainty that the four-track system is no longer under consideration, that the ridership study will be redone, and that the project will not be exempt from the current CEQA process," Menlo Park Mayor Kirsten Keith said.
Atherton officials met in closed session Tuesday afternoon to discuss litigation against high-speed rail, Councilman Jerry Carlson said.
Atherton City Attorney Bill Conners told the Weekly that the council has authorized him to join the appeal, though the city was waiting to see what actions, if any, the rail authority's board of directors would take at its meeting Thursday, April 12, before it determines whether to continue further litigation. The board was scheduled to discuss the ongoing litigation with Peninsula cities at the end of its meeting, after the Weekly's press deadline.
"Unlike the other two cities, we have not yet made a formal decision on how to proceed and we will do so once we hear from the High-Speed Rail Authority as to what, if anything, comes out of their board meeting Thursday," Conners said.
Fresh lawsuits from the cities could further delay a project that had already been hit with numerous legal setbacks since 2008, when voters approved a $9.95 billion bond for high-speed rail. In November 2011, Sacramento Superior Court Judge Michael Kenny gave the Peninsula cities a limited victory when he ordered the rail authority to de-certify its program EIR and to further analyze the traffic impacts of narrowing a portion of Monterey Highway near San Jose. Kenny also told the rail authority to further analyze the project's traffic impacts on properties along the Caltrain corridor.
Kenny declined, however, to get involved in the disputes over ridership numbers. He also upheld the rail authority's decision to use the Pacheco Pass alignment rather than the Altamont Pass route favored by various nonprofit coalitions that joined the suit against the rail authority. The revised analysis now includes the changes mandated by Kenny.
Rail officials have been adamant in recent months that they are now committed to the blended approach on the Peninsula, despite the fact that the program EIR continues to focus on the four-track approach. Jim Harnett, a member of the rail authority's board of directors said at a public hearing in Mountain View that a blended approach is the agency's "new direction for high-speed rail." Simmens said that while the EIR will not be revised to include more analysis of the blended approach, "the implementation strategy for the two-track system is very much in play for the project."
But for Flashman and the project's critics on the Peninsula, that probably won't be good enough. Flashman told the Weekly that the rail authority's two documents, the program EIR and the business plan, currently describe two different projects, a situation that he called a "little schizophrenic."
"You have to figure out which project you're doing," Flashman said.