Weeks after learning about Caltrain's plan to seek an exemption from California's environmental law for its proposed electrification project in the event of a lawsuit, Palo Alto officials are preparing to consider their legal options.
The City Council has set a special closed-session meeting for this evening to consider potential litigation against the Peninsula Corridor Joint Powers Board. The session, which was placed on the agenda last week, comes two weeks after the council heard a presentation about Caltrain's staff about the recently completed Environmental Impact Report (EIR) for the long-planned project, which seeks to replace diesel trains with electric ones starting in 2019. In addition to enabling an increase in trains, the electrification project also intends to set the stage for the ultimate construction of high-speed rail.
Caltrain's recently approved EIR, which identifies the project's impacts and proposed mitigations, concluded that the project would worsen congestions three intersections on Alma Street and that these impacts cannot be mitigated because of physical constraints. While Palo Alto officials have requested that Caltrain help mitigate some impacts by working with the city on grade separation, the agency has declined to do so, citing the high cost of building a trench for Caltrain.
"Due to geometric constraints on it (Alma), we didn't find any feasible mitigations other than grade separation that Caltrain is not financially capable of doing," Caltrain's consultant Rich Walter told the council on Jan. 12.
The document also asserted for the first time Caltrain's intention to claim exemption from the California Environmental Quality Act, the very law that makes the EIR mandatory, should the project face a lawsuit. While Caltrain officials said they plan to go along with the mitigations laid out in the report regardless of the law's applicability, they also said they reserve the right to declare themselves exempt from the law if the document faces a legal challenge.
"The statement of the JPB is that they reserve the right to assert this," Walter said, referring to the exemption from CEQA. "It doesn't change the commitment that the agency has made to the mitigations identified in the EIR."
Marian Lee, executive officer for Caltrain's modernization, told the Palo Alto council on Jan. 12 that the agency is willing to work "outside CEQA" to figure out ways to address the project's impacts on local intersections.
"We're not turning away," Lee said. "Where there are impacts, we've been directed by the board to meet with (city) staff and consider what are the additional things we can do."
Caltrain's response did not entirely satisfy the council, with several members saying they were skeptical about the agency's stated commitments to mitigating the impacts given its simultaneous assertion that state law does not apply to the electrification project.
"That's a lot of words," Councilman Marc Berman told Lee after she said that Caltrain plans to work with staff outside the CEQA process. "If you're saying CEQA doesn't apply, there's no guarantee that anything will actually happen on that front. You're pledging to do your best, but there's nothing in the document that says there will be any mitigations for these impacts."
Lee also said Caltrain would be interested in potentially entering into a separate partnership with Palo Alto to pursue grade separation, which is something that both the agency and the city want. This could be accomplished through a memorandum of understanding.
Vice Mayor Greg Schmid wasn't entirely pleased with this response and asked Lee to inform her board that one of its good "partners" is "upset."
"We are partners, which is why it's so disturbing for you to come and claim the right to have an exemption from CEQA," Schmid said. "CEQA is our way to have a dialogue over issues and mitigations. Your board reserving the right (to claim exemption) indicates that we are less of a partnership for the future."
Tonight's closed session will be held at the end of the regular council meeting, which will begin at 6 p.m. Read the agenda here.
