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Taking a hard look at the CEQA lawsuit against the CHSRA:

Original post made by Martin Engel, Menlo Park, on Mar 27, 2009

There are rumors about Palo Alto’s city council being split more or less 50/50 about filing an amicus brief to join the lawsuit of which Atherton and Menlo Park are now plaintiffs.

Those on the city council that oppose participating in such a lawsuit may very well miss the entire point. There is no downside to filing; only to not filing.

Many of us have been led to believe that the lawsuit is only about getting the rail authority to relinquish its firm grip on the Pacheco pass route, the one that obliges them to use the entire Caltrain corridor on the Peninsula in favor of the Altamont Pass route.

Actually, that’s not the case. The lawsuit makes the claim that the rail authority, despite its knowledge that Union Pacific would not permit use of the UP rail corridor between San Jose and Gilroy, nonetheless committed themselves to the EIS/EIR that makes that very claim. The lawsuit alleges this to be a falsehood and therefore a violation of CEQA laws.
Union Pacific has reiterated their position in their EIS/EIR comments to the rail authority.

What can be expected of this lawsuit on May 29, when it will be heard by the court? Finding against the rail authority may not oblige them to reject the Caltrain corridor as their preferred route, even if they can’t use the UP corridor south of San Jose to Gilroy. But, it will impose severe hardships, considerable valuable time lost, re-writing of EIS/EIR documents and re-submitting them for analysis. And, they will have to provide a valid alternative route south of San Jose, a difficult challenge.

Therefore, the purpose of the lawsuit is actually “leverage.” It can’t be ignored, the way Mr. Diridon stated in front of the Palo Alto City Council that he would ignore the interests of our coalition of cities; or, to put it fairly, not to give us any more attention than he would, say, my Aunt Tilly in Milpitas.

The lawsuit says – in effect – don’t mess with us, Mr. Diridon. We filed this one and we will file others. Even though you may not think so, you are in fact accountable to us and you must pay more attention to us than to Aunt Tilly in Milpitas. If you are not totally truthful as you justify your decisions, you are breaking the law and we must sue, if only to protect our collective interests.

The lawsuit levels the playing field. The entire purpose for creating this coalition of cities, an agenda that Council member Yoriko Kishimoto actively pursues, is to gain such a level playing field. If it is in Caltrain/CHSRA’s interest to “divide and conquer” the cities on the Peninsula, we have the opportunity to realize that “in unity there is strength.” 

The lawsuit is a valuable negotiating chip in this adversarial game, indeed the only one we have at this time. I would say to those who are advocating this multi-cities coalition (and I have done so for several years), if you don’t want to play this game, don’t bother to form a team. But, if you don’t play, you will certainly lose.

The first palpable act of the coalition, or at least a number of its members, must be to participate in this lawsuit. And the purpose of this is not to be able to say to the rail people, you are wrong and we are right. The purpose of the lawsuit is to get results; to get the environmental attention and protection that we are entitled to, since that is the entire purpose of the CEQA laws, to protect the environment -- OUR environment. The rail authority can't pick the least expensive route or alignment, it has to be the one that is least harmful to the environment. Environment doesn't only mean trees and wetlands. We all represent an urban environment and it too must be protected.

If Palo Alto joins this suit, it makes clear to the court that three cities, Atherton, Menlo Park and Palo Alto, representing 100,000 people (who may not all agree), merit having their day in court. 

As I have said, this is an environmental issue. As the residents of our cities, we are a rail-linked string of habitats of an "endangered" species, Homo Suburbanis. They must not damage our habitats or diminish their habitability.

The rail authority would, for their own interests, erode the quality of our environment and that is the whole purpose behind the California Environmental Quality Act; to prevent that. Palo Alto can do no less than participate with an amicus brief, if only to get the proper attention from and protection against the rail authority that it deserves.



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