Palo Alto should sue on high-speed railShould Palo Alto sue the California High Speed Rail Authority over what it sees as inadequate responses to community comments and concerns in the authority's draft environmental impact report (EIR)?
Adequacy of environmental review is one of the few legal challenges possible to force the High Speed Rail Authority to address local concerns
That pivotal question will be debated Monday night by the City Council in closed session.
The city faces an Oct. 2 deadline for filing a legal challenge to the authority's latest approval of a draft environmental impact report that, according to city officials, inadequately responds to Palo Alto's criticisms of the draft, as required under the California Environmental Quality Act (CEQA).
The real dilemma is whether a lawsuit would be effective in forcing the authority to engage in serious discussions over the issues raised by the city.
That depends on how one defines "effective." On one hand, pointing out shortcomings in the authority reports seems to have become a cottage industry in California. Independent critics, organizations (such as Californians Advocating Responsible Rail Design, or CARRD), and independent studies by experts have identified serious flaws in the authority's ridership estimates and business plan.
There also is a growing list of cities up and down the state with serious concerns about the project, ranging from impacts on residents to effects on the environment and farming.
The downside to a lawsuit is that under CEQA even a legal victory only requires that an agency responsible for doing an environmental impact review correct the deficiencies. So even if Palo Alto wins in the courtroom it would not likely derail the project, in and of itself, or force the authority to tunnel or trench the rails through the Midpeninsula, according to experts in environmental law.
Yet there are other factors at play, and a huge one is time. The authority itself has repeatedly cited tight guidelines to qualify for federal funding crucial to financing the project, now estimated at $43 billion.
The real value of a lawsuit to Palo Alto and other cities would be the leverage it provides in gaining a formal "seat at the table." With time a factor, the rail authority cannot afford delays due to litigation and will be much more motivated to negotiate changes than defend itself in court.
The list of deadlines resembles a train arrival-and-departure schedule: A draft EIR is targeted for completion by this December. The state Legislature, with support from Sen. Joe Simitian of Palo Alto, has set a February 2011 deadline for the authority to produce a "viable business plan" or face possible loss of legislator support.
Additional federal stimulus funds are expected to be announced by January 2011. The environmental review must be completed by September 2011 for the rail project to be eligible for a federal stimulus rebate. Construction must begin by September 2012 to maintain eligibility for federal stimulus funds, and the line must be completed within five years (by September 2017) to retain federal stimulus-fund grants.
So the deeper question for Palo Alto officials to consider Monday night is not whether their possible lawsuit could block the overall rail project or force the authority to put the Midpeninsula segment underground in a deep tunnel or covered trench.
The issue is "delay."
If the city can establish that the authority was deficient not only in its responses to concerns of Palo Alto and other Peninsula cities but also that the underlying EIR is deficient, it could jeopardize the authority's ability to meet the federal deadlines.
The deadlines, of course, could be extended given federal and state support for high-speed rail generally. But a delay would also allow time for rail opponents or tunnel/trench advocates to build their political bases, and coalesce — and perhaps launch an initiative challenge to the 2008 voter approval of the system and $9.95 billion down payment.
There is a "good government" issue, also. In most CEQA cases, the EIR is produced by a developer and a government agency oversees its adequacy. In this case, the rail authority does both, so the only effective oversight must come from the courts.
Given the alternative of surface rails crowding Alma Street or a huge overhead "viaduct" through Midpeninsula communities, Palo Alto should go full throttle and sue.