Feds Say High-Speed Rail Can Roll over State Environmental Laws

Wednesday, December 17, 2014

Federal officials, asked by the California High-Speed Rail Authority to protect it from state laws that would delay the bullet-train project, went them one better and said they could ignore the state’s entire landmark environmental protection act.

In a 2-1 ruling (pdf), the U.S. Surface Transportation Board (STB) said the state couldn’t interfere with the $68-billion project because it would potentially link to the U.S. transportation network, which is under federal supervision:

“CEQA is a state preclearance requirement that by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the (federal) board has specifically authorized, thus impinging upon the Board’s exclusive jurisdiction over rail transportation.”

The board’s action comes as more than half a dozen lawsuits challenging high-speed rail work their way through state courts. Many allege some violation of the California Environmental Quality Act (CEQA), the 42-year-old legislation that mandates the ubiquitous environmental impact reports, which require project developers to identify problems and mitigate them ahead of time.

It is unknown what effect this ruling will have on those lawsuits. But Kings County Counsel Colleen Carlson told the Fresno Bee it “practically invites more litigation.”

Board member Ann D. Begeman noted in her caustic dissent that the rail agency has said and acted like it would adhere to CEQA regulations, which are tougher than the National Environmental Policy Act (NEPA). Begeman wrote:

“The Authority has come before the Board many times asserting its commitment to CEQA and NEPA. This agency has adopted that commitment into its orders and many stakeholders have relied on the Authority’s representations over the years. The Authority should live up to its commitments and the Board should refrain from undermining it.”

The federal board signed off on a final environmental impact report for the Fresno-Bakersfield section earlier in the year that was touted as adhering to both state and federal laws. Lawsuits immediately challenged that notion. The rail Authority sought protection from injunctions that would halt work while legal issues were addressed and won that, and more.  

Stuart Flashman, an attorney who represents opponents of the rail project, told CalWatchdog, said the STB ruling was not unexpected. He said the board was “moving toward federalizing a state project (while retaining the state funding for that project) in blatant disregard of the U.S. Constitution’s clear separation between state and federal power.”

It’s been a busy few days at the rail Authority. Last week, it was announced that there would be an official ground-breaking ceremony in Fresno for the 28-mile first phase of the project on January 6, the day after attendee Jerry Brown is sworn in as governor. The Authority also announced it had selected its contractor to build the 65-mile second phase from Fresno to Bakersfield.

The winning bid of $1.2 billion surprised people who took the Authority’s word that it should cost between $1.5 billion and $2 billion. The contractor has apparently identified at least one area of savings that the state had not publicly anticipated.

–Ken Broder


To Learn More:

U.S. Board: Federal Law on High-Speed Rail Trumps State Environmental Lawsuits (by Tim Sheehan, Fresno Bee)

CEQA Can't Derail High-Speed Rail, Feds Say (by William Dotinga, Courthouse News Service)

Federal Board Pushes High-Speed Rail―A Little (by Kathy Hamilton, CalWatchdog)

That Winning Bid for California's High-Speed Rail: Is It Suspiciously Low? (by James Fallow, The Atlantic)

Another Blow to the Bullet-Train—This One from the Feds (by Ken Broder, AllGov California)

California High-Speed Rail Authority—Petition for Declaratory Order (U.S. Surface Transportation Board) (pdf)

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