High-speed-rail critics eye fresh legal challenges

Palo Alto, Menlo Park officials consider appealing rail authority's latest environmental analysis

As state officials prepare to approve the environmental analysis for California's planned high-speed-rail system, Peninsula cities are again gearing up to challenge the legality of the $68 billion project, the Weekly has learned.

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 authority's rail 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 Peninsula, it focuses its analysis on the rail authority's original and locally unpopular vision 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 voted 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 will wait to see what actions, if any, the rail authority's board of directors will take at its Thursday morning before it determines whether to continue further litigation.

The board is scheduled to discuss the ongoing litigation with Peninsula cities at the end of its meeting.

"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, which now includes the changes mandated by Kenny, is scheduled to be approved by the rail authority on April 19.

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.


Like this comment
Posted by Evan
a resident of Crescent Park
on Apr 11, 2012 at 3:50 pm

Those groups have decimated the high-speed rail project … they're still not happy. And that's the point. Nothing the high-speed rail authority does will ever satisfy them, because the only thing that will satisfy them is if nothing ever happens. These people are so blind and so misguided, they'll never stop until this project is dead. And that's a horrible thing for majority of all of us Palo Altans that actually want a brighter future, with better transit and urban design.

What would America be like if people like this had stomped their feet and pouted until the interstate highway project or BART were cancelled.

Like this comment
Posted by Craig Laughton
a resident of College Terrace
on Apr 11, 2012 at 4:39 pm

HSR is a disaster, from beginning to end. It is neither needed, nor demanded by the market. The PA City Council rubber-stamped it, as a matter of green course. It should be killed in it's virtual tracks, now. We, in California, including Palo Alto, have been wounded by this turkey. Stick a fork in it, accept our losses, then move on. It is all a very sad affair.

Like this comment
Posted by Walter_E_Wallis
a resident of Midtown
on Apr 11, 2012 at 4:43 pm

Walter_E_Wallis is a registered user.

If all it did was close all the grade crossings and electrify, it would be worth it.

Like this comment
Posted by Peter Carpenter
a resident of Atherton
on Apr 11, 2012 at 4:49 pm

Peter Carpenter is a registered user.

"What would America be like if people like this had stomped their feet and pouted until the interstate highway project or BART were cancelled."

Remember that projects like the SST (supersonic transport) and the Space Shuttle HAVE been cancelled because they were not economically feasible to continue. HSR between the Bay Area and Southern California is simply not economically feasible given the very low population densities over the entire route. HSR works best in very high densities areas and even then there is not a single HSR system in the world which operates without a significant public subsidy. To build HSR wil require permanently diverting critical public resources from many more important needs.

Would you support an orbital rocket system connecting north and south? Of course not because the cost would far outstrip the expected revenues. The same is true of HSR.

Like this comment
Posted by Craig Laughton
a resident of College Terrace
on Apr 11, 2012 at 4:59 pm

"If all it did was close all the grade crossings and electrify, it would be worth it."

Nope. Not even close. $$B for grade separations? Absurd.

Caltrain can and should be addressed by the SF West Bay Penninsula. After all, it is our commuter train, not somebody elses. I, personally, think it is a reasonable system, as is, but it needs some more financial support...which is MUCH cheaper than spending $$B on an absurd HSR system.

This HSR nightmare needs to end now!

Like this comment
Posted by ODB
a resident of Old Palo Alto
on Apr 11, 2012 at 5:16 pm

Walter, you're saying it's OK for the state to spend $70 billion plus cost overruns just so Palo Alto can get rid of grade crossings. That's an awfully expensive proposition and a very flimsy reason to build this boondoggle.

Like this comment
Posted by Martin Engel
a resident of Menlo Park
on Apr 11, 2012 at 7:14 pm

We’ve made this point a number of times. Peninsula Commuter rail, now operated by the Caltrain organization, is not merely the Peninsula’s problem. It is a Bay Area wide problem. The Bay Area lacks a comprehensive network of multi-modal public mass transit.

On the Peninsula, Caltrain thinks they are in the railroad business. Big mistake! They should understand that they are in the public mass transit commuter business.

There are a dozen or so individual transit operators, all scrambling for sufficient operating subsidies and capital development funds. All experiencing various levels of mis-management, Caltrain among the more flagrant. These individual operators all need to be under a single, state-based management structure with adequate funding, perhaps like the Capital Corridor/Amtrak system with a state-based joint powers board.

For true transit effectiveness, there should be a seamless integration of various modalities, such as light-rail, buses (including BRT), commuter rail, shuttles, and even ferries, since we surround such a large body of water.
They should be confronting the first-and-last-mile problem.

Caltrain thinks they are in the railroad business. They should understand that they are in the public mass transit commuter business.

In the Bay Area, we all live and work in a highly distributed way. Our transit system needs to address that. Caltrain’s obsession is with San Jose and San Francisco; all other stops are an inconvenience with the possible exception of Palo Alto.

Finally, High-Speed Rail is certainly not California’s future unless all Californians become highly affluent and can afford the most expensive train tickets available. Is it OK to build a luxury train only affordable by suits with laptops and corporate travel expense accounts?

The two population regions in the state are indeed in dire need of public mass transit. That’s where our funding resources, scarce as they are, should be invested. An inter-city luxury train is the last thing this state needs.

Like this comment
Posted by Many
a resident of Greenmeadow
on Apr 11, 2012 at 10:15 pm

I'm glad Palo Alto and Menlo Park are litigating. The CA HSR has once again shown the arrogance that has galvanized opposition to their blundering costly project in this most recent revelation regarding the EIR. The EIR clearly states that the 4-track alignment is plan A, no question about it. In an article in the Daily Post April 7, CA HSR spokesman Lance Simmens dances around the question of if HSR is embracing the so-called "blended" system on the CalTrain tracks, why is the 4 track alignment still in the EIR? In response , Mr Simmens claims that the EIR really isn't an important document, or that it's not enforceable, or something like that. Basically, he says that even though the EIR clearly states that the plan for the peninsula is the full 4 track build out, that peninsula residents need not worry because that's not the plan. When asked then if a 4 track system was not the plan, why was it not removed from the EIR. The response was essentially that the words were not important. Yeah, right. I wish I could link to the article, but the Daily Post does not post on-line.

It's clear that once again, that the absolute arrogance of the CA HSR is on full display here. CA HSR does not care about anything but getting money from the state and federal govt, and passing it along to "consultants", well connected labor groups, and then on to supporting politicians via all manor of 3rd party campaign contributions.

Hey Joe! Hey Rich!, Hey Anna! How does it feel to have CA HSR tell you all, again, to **** off? Honestly, the CA HSR has zero credibility. They come up with new "better" business plans about as fast a roll of toilet paper gets used up, and is about as valuable as that same used tp. It's time to de-fund the CA HSR, de-authorize the CA HSR, and stop the wasteful spending already approaching $1B before it soars to 10's and hundreds of billions of dollars.

Like this comment
Posted by Dr Doodle
a resident of another community
on Apr 12, 2012 at 8:57 am

@Martin Engle: great points! It seems to me that electrifying Caltrain is an important component of what you're describing. Not HSR, but electrified Caltrain. Right? At least for me, if HSR will pay to electrify Caltrain, and price is that at some point in the distant future MAYBE two HSR trains will roll by each hour, that's a deal I'd take in a second. (Partly because I don't believe that those 2 HSR trains will ever arrive.)

Like this comment
Posted by Robert
a resident of Stanford
on Apr 12, 2012 at 10:46 am


You posted thus: "Those groups have decimated the high-speed rail project … they're still not happy. And that's the point. Nothing the high-speed rail authority does will ever satisfy them, because the only thing that will satisfy them is if nothing ever happens. These people are so blind and so misguided, they'll never stop until this project is dead. And that's a horrible thing for majority of all of us Palo Altans that actually want a brighter future, with better transit and urban design.What would America be like if people like this had stomped their feet and pouted until the interstate highway project or BART were cancelled."

1. Good to read another tendentious post from Evan. Ironically, in light of what he said of critics of this HSR project, for him, nothing that the CHSRA does ever makes him UNHAPPY, and nothing could, REGARDLESS of CHSRA's current fanciful versions of project construction cost, system design, environmental impact mitigation, ridership study, cost study, or steady-state financial feasibility.

2. Admirable try, Evan, attempting to depict opposition to this boondoggle as just a small minority, when according to the latest polls a substantial majority of Californians want a revote on this idea (given how it was represented and has since changed) and actually would oppose it. If you'd like, I'd be happy to provide a citation for the study I'm referencing.

3. Evan asked what would have happened if similar groups had "stomped their feet and shouted" until BART and the Interstate Highway System were cancelled. Now I understand your position, Evan: large-scale infrastructure projects should just be routinely approved and not be allowed to be challenged by the public. So, on that view, you'd have given summary approval to the construction of an extensive network of nuclear power plants, nuclear waste facilities, the Westside Highway in NYC, and SST aircraft without public scrutiny. Fortunately, the National Environmental Protection Act permits the public to challenge Environmental Impact Statements in court, in an attempt to show that the proponents' accounts of environmental impacts is deceptive or fraudulent. Such is life in a vigorous democratic society. My apologies.

4. By the way, Evan, I wish your claim that the HSR project has been "decimated" (by "those groups") was true, but, alas, it's not. HSR, in its latest PR-massaged incarnation, is still alive and well. After all, politicians with insatiable egos like visible legacies to their lackluster careers and need money for their reelection campaigns, and groups that would benefit financially from large projects are only too happy to cooperate.

Like this comment
Posted by JA3+
a resident of Crescent Park
on Apr 12, 2012 at 11:20 am

"HSR is a disaster, from beginning to end. It is neither needed, nor demanded by the market."

+1. I agree in full. HSR is profligate, imprudent, and unwise; I fully support the current litigation filed by our City and others.

Like this comment
Posted by Herb Borock
a resident of Professorville
on Apr 12, 2012 at 12:36 pm

"Kenny ... 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, which now includes the changes mandated by Kenny, is scheduled to be approved by the rail authority on April 19."

Judege Kenny ordered the rail authority to set aside their approval of the Pacheco Pass alignment:

Judgment has been entered in this proceeding ordering that a peremptory writ of mandate issue under seal of tiiis Court.
THEREFORE you are commanded, upon receipt of this Writ:
I) To rescind and set aside your Resolufion No. 11-11 certifying the Revised Final Program Environmental Impact Report for the Bay Area to Central Valley High-Speed Train Project, approving the Pacheco Pass Network Altemative Serving San Francisco via San Jose and approving preferred alignment altematives and station location options. This resolufion is remanded to Respondent for reconsideration after completing compliance with this writ."

The rail authority has amended its agenda for April 19, 2012, to inlcude language in agenda item #4 "to select and approve a network alternative, preferred alignments, and preferred station locations for further study in second-tier EIRs." Web Link

Like this comment
Posted by senor blogger
a resident of Palo Verde
on Apr 13, 2012 at 8:33 am

I agree with Evan and Robert.

There is an unpublished reasen why these particular groups have taken it upon themselves to try to kill the project.

Maybe its time for the Grand Jury to look at what the secret motivations are and how much taxpayer money is being spent to fight what the Statewide Voters approved

Like this comment
Posted by Robert
a resident of Stanford
on Apr 13, 2012 at 9:29 am

@"senior blogger"

With due respect, I STRONGLY DISAGREE with you. I made no reference to any mysterious "unpublished reason" why most opponents of this HSR project oppose it. The major reasons they oppose it are clear and explicit: GREATLY INCREASED STATE DEBT and EXTREMELY NEGATIVE ENVIRONMENTAL IMPACT on the Peninsula.

However, there ARE many "unpublished" (but obvious) reasons, having nothing to do with the goal of enhancing transportation by means of electrifying CalTrain, why supporters of this project persist in supporting it:

--POCKETING PUBLIC MONEY BIG TIME (unions, construction companies, and consultants are salivating at the money they stand to make);
--POCKETING CAMPAIGN CONTRIBUTIONS (for local politicians from those who would make big bucks from HSR);
--CITY STATUS ENVY ("SF must be a system node too, just like LA!"); and
--CREATING A TANGIBLE POLITICAL LEGACY (Jerry Brown, not unlike his father's north-south aquaduct).

Please do not equate my position with Evan's. He's a gung-ho carte blanche supporter of HSR on any terms who opposes public scrutiny of this looming fiasco. I am a strong opponent of this HSR project with this huge price tag, this route and (aerial) design, and its foreseeable major negative environmental impact.

Like this comment
Posted by Brian
a resident of Midtown
on Apr 15, 2012 at 4:47 am

Welcome to Palo Alto; proud to be the new "Orange County" of the north! A city of self indulgent faux liberals who immediately reveal their closeted Republican sensibilities whenever any crazy speculations arise that something might affect their property values. "To hell with the rest of the state! To hell with trying to adopt more sustainable transportation and development models!"

Everyday Palo Alto is sounding less like a real community and more like one of those fake gated versions. It's a community of people that clearly doesn't believe in the principles of collective responsibility. It's all about me, me, me!

You know; sometimes hard decisions have to be made. There is no denying that global warming is basically a fact. Critics of HSR always use the current status quo as an example of why HSR will always be doomed to be a failure, ignorant of the facts that Americans are not a special breed of people immune to the environmental and economic challenges the rest of the world will be facing. There are systemic problems in how our cities are built and maintaining the status quo is not an option.

Back to the subject of property values; Palo Alto's own Rail Corridor study group even acknowledge that in all reality HSR is more likely to increase property values in Palo Alto. There is nothing ironic in that. In the 2008 recession and foreclosure crisis the worst affected communities were those in the central valley with poor public transit. Without cheap gas mobility becomes very limited. I am not saying Palo Alto will ever have to risk becoming the next Stockton but it should count it's blessings.

People in Palo Alto would be well served if they thought about these issues a bit more rather than voraciously consuming whatever Tea Party Republican talking points are fed to them (the messenger disguised of course as something else). Sad to say, I don't see change happening any time soon around here. The longstanding myths about what affects property values dominates everyone's thinking in Palo Alto like a cult.

Like this comment
Posted by Robert
a resident of Stanford
on Apr 15, 2012 at 9:19 am


And the point of your meandering, focus-free discourse is what exactly?

That HSR is actually a blessing or boon for Palo Alto property values?

If so, do you believe that to be the case INDEPENDENT of...

-- the actual system design ("aerial" vs tunnel or trench),
-- increased traffic in PA (if PA were to become a node),
-- the number of trains running through PA per hour,
-- number of tracks built,
-- whether property is seized by eminent domain (do you think owners would actually get fair market value?), either entire parcels or "just" backyards,
-- whether state taxes had to be substantially increased and the budget further chopped (thereby further decimating public education) to pay for the much bigger than advertised cost of this system,
-- whether the walls on top of which the trains would run would be festooned with graffiti, and
-- even if Palo Altans didn't actually use HSR to commute to and from SF?

Yes, indeed, it's marvelous how HSR would turn out to be a boon to PA property values independent of any of these troubling contingent possibilities. It's almost enough to make one wish that we would consider building two HSR systems so property values could really benefit.

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