High Speed Rail

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The California High-Speed Rail Authority (“CHSRA”) issued a press release with the status of its construction work for the high-speed rail project (the “Project”) at seven active sites in the Central Valley.  Many of the Project’s segments in Madera and Fresno are beginning to see development; the foundation has been established in several sections, rebar …

The High-Speed Rail Authority (“HSRA”) issued a progress report for the High-Speed Rail Project (the “Project”) last week, describing the HSRA’s challenges and successes to date.

One of the highlights of the report was the HSRA’s January groundbreaking in Fresno for the first segment of the Project’s 520-mile route. The report also discusses the progress…

On January 26, the U.S. Fish and Wildlife Service (“USFWS”) issued a letter to the California High-Speed Rail Authority (the “Authority”) that found that the Authority’s contractors are not in compliance with the Authority’s original environmental commitments to the USFWS in performing the preliminary work on the first segment of the high-speed rail project (the…

On December 10, 2014, the California Supreme Court granted petition for review in Friends of the Eel River v. North Coast Railroad Authority to resolve a split between the First and Third District Courts of Appeal.  (230 Cal.App.4th 85 (2014), cert. granted, 339 P.3d 329, Cal. S.C. Case No. S222472 (2014).)  The Court will consider two questions:

(1) Does the Interstate Commerce Commission Termination Act (“ICCTA”) (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)?

(2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?

The Supreme Court’s decision on this issue has the potential to affect crude by rail shipments in California, which has increased dramatically within California and nationwide in the past several years.  In 2013, railroads transported almost 40 million tons of crude oil across the U.S., as compared to approximately 20 million tons in 2012 and 7 million tons in 2011, according to data from the Association of American Railroads.

Does ICCTA Preempt CEQA?…

Continue Reading California Supreme Court To Resolve Appellate Court Split on Federal Preemption in Railroad Regulation

As the High Speed Rail Authority (“Authority”) prepares to begin construction this week of the first segment of the High Speed Rail Project (the “Project”), the State Public Works Board is concurrently scrambling to consider resolutions of necessity to acquire property for the first segment within Fresno and Madera counties.  Because of the recent litigation…

The Surface Transportation Board (“STB”) issued a declaratory order in a 2-1 vote last Friday, finding that the California Environmental Quality Act (“CEQA”) is categorically preempted by federal law, as it relates to the Fresno to Bakersfield segment of the California High-Speed Rail Project (“HSR Project”).

Section 10501(b) of Title 49 of the United States Code provides that remedies with respect to rail transportation are exclusive and preempt remedies provided under State or Federal law. The STB has previously ruled that states or localities are precluded from intruding into matters directly regulated by the STB, in particular when the state or local action would have the effect of foreclosing or unduly restricting the rail carrier’s ability to conduct its operations or otherwise unreasonably burden interstate commerce.

Under this section, the STB could not overlook the fact that CEQA, as a state pre-clearance requirement, could ultimately deny or significantly delay the High-Speed Rail Authority’s (the “Authority”) right to construct a railroad line. This would directly defy the STB’s exclusive jurisdiction over a project that it regulates. Even if it could be argued that the Authority created an implied agreement by voluntarily beginning the CEQA process, the STB concluded that any such agreement would unreasonably interfere with interstate commerce because it would prevent the Authority from exercising its authority to construct the rail line, which it had been previously authorized to do by the STB.
Continue Reading High Speed Rail Moves Forward Without CEQA Review

James Andrew, Assistant Chief Counsel for the California High-Speed Rail Authority (“CHSRA”), spoke Tuesday, October 14, at the Sacramento County Bar Association, Environmental Law Section Luncheon.  He stated that High-Speed Rail (“HSR”) is a “transformative project” in that it will be the largest infrastructure project ever built as one single project.  However, the “regulatory scheme has not caught up with the project.”  Andrew compares HSR to the federal highway system construction in the 1950s, with countless opponents and regulatory hurdles.  Similarly, HSR is being constructed in California in the same manner as the federal highway system:  in the center and branching outward.

To show that HSR can be a success, Andrew explained that HSR is comparable to the Northeast Corridor, a high speed rail system that runs from Washington, D.C. to Boston.  The two regions are similar in terms of distance of rail, population, and complexity of issues.  According to reports, over 11 million people rode the Northeast Corridor during 2012.…

Continue Reading Update on the California High Speed Rail System

The State Public Works Board (the “Board”) adopted four Resolutions of Necessity approving the High-Speed Rail Authority’s (the “Authority”) use of eminent domain for public necessity to acquire four parcels in Fresno and Madera County for the Initial Operating Segment of the High-Speed Rail Project (the “Project”).  (Click HERE for map of Initial Operating Segment.) …

The Third District Court of Appeal reversed a Sacramento Superior Court Judge’s ruling that prohibited the High Speed Rail Authority (HSRA) from selling bonds under  Proposition 1A to construct the High Speed Rail Project (the Project) and ordered the HSRA to draft a new funding plan for the construction and operation of the Project.  (See California High-Speed Rail Authority v. The Superior Court of Sacramento County, No. C075668 (Cal. Ct. App. 3d Dist., July 31, 2014).)

Proposition 1A, originally approved by voters in 2008, authorized the HSRA to issue and sell general obligations bonds (upon appropriation by the Legislature), to begin construction of the Project.  Pursuant to Proposition 1A, the HSRA prepared, published, adopted, and submitted a preliminary funding plan to the Legislature that was also made available for public review and comment.  The plan included the total anticipated federal, state, local, and other funds the HSRA intended to access to fund the construction and operations of the system.  A final funding plan must also be approved by the Director of the Department of Finance before committing any bond proceeds, but such a plan has not yet been prepared by the HSRA.

In 2013, the HSRA requested, and the Legislature appropriated, the issuance of $8.6 billion in general obligation bonds for the Project.  In order to preclude any future lawsuits, the HSRA filed a validation action in Sacramento Superior Court to obtain a judgment validating the bonds to be sold on the capital markets.  Subsequently, several real-parties-in-interest filed a responsive pleading requesting that the court issue a writ of mandate directing the HSRA to rescind the preliminary funding plan for failure to comply with statutory requirements.  On November 25, 2013, the trial court issued a writ of mandate directing the HSRA to rescind its approval of the preliminary funding plan for failing to comply with the statutory requirements.  On the same day, Judge Kenny issued a ruling denying the request for a validation judgment on grounds that the Legislature’s determination to issue the bonds was not supported by evidence in the record.…

Continue Reading Court Signals Green to $8.6bn California High-Speed Rail Bond Issuance

In Town of Atherton v. CA High Speed Rail Authority, No. C070877 (Cal. Ct. App. 3d Dist., July 24, 2014), the Third Appellate District upheld the High-Speed Rail Authority’s (HSRA) Program Environmental Impact Report/ Program Environmental Impact Statement (PEIR/PEIS) for the Bay Area to San Joaquin Valley segment of California’s High Speed Rail system (the Project).  The appellate court ruled that the HSRA properly limited the environmental analysis to a program level and properly deferred site-specific analysis, and that the PEIR/PEIS studied an adequate range of alternatives.

In 2008, the HSRA certified the PEIR/PEIS for the Bay Area to San Joaquin Valley segment and identified the Pacheco Pass Corridor as the preferred alignment.  Shortly after certification of the PEIR/PEIS, several interested parties (collectively, the Petitioners) filed suit, and the trial court found fault with the PEIR/PEIS’s project description, alternatives, and mitigation measures (Town of Atherton I).  After revising the PEIR/PEIS, the HSRA asked the trial court to approve the revisions.  A second group of litigants that included the Petitioners then filed suit to challenge the revised analysis.  That suit is the root of the instant appeal (Town of Atherton II).

In Town of Atherton II, Petitioners alleged that the revised PEIR/PEIS improperly deferred analysis of the impacts of  a portion of the train alignment and that the alternatives analysis did not consider new information provided by its own expert consulting company that identified a different feasible  alignment.  The trial court held that impacts of the alignment were properly deferred and the HSRA was not required to consider the Petitioner’s alternative.

On appeal, the appellate court first considered the HSRA’s contention that the appeal must be dismissed because federal law preempts state environmental law.  Moving on to the merits, the court then analyzed the appellants’ arguments regarding whether the PEIR/PEIS properly analyzed the impacts of the Project and the alternatives. …

Continue Reading California High Speed Rail Dodges Legal Bullet

The Sacramento Bee has reported that the Legislature’s budget proposal for the high-speed rail project has been finalized.  Gov. Jerry Brown and Democratic lawmakers have agreed to use 25 percent of future cap-and-trade funds, totaling $250 million, to continue construction of the $68 billion California High-Speed Rail Project (the “Project”).  The floor votes for the…

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