Monday, September 14, 2009

Judge: No Halt to HSR Planning

NOTE: We've moved! Visit us at the California High Speed Rail Blog.

After ruling in Atherton v. CHSRA that the CHSRA needs to address the issue of the Union Pacific right of way between San Jose and Gilroy, Judge Michael Kenny was much less clear about what happens next. Into that vacuum stepped many of the anti-HSR folks to claim that the CHSRA was going to have to stop their work and do a new EIR.

Today we learn that while the ultimate remedy is still unclear, CHSRA is not barred from continuing its project level studies, and that an October 9 hearing has been scheduled by Judge Kenny to decide the matter of how to "correct the programmatic analysis," in the words of this CHSRA press release issued today:

CHSRA 9.14.09 Court Action FINAL

The release also notes that application for federal stimulus for this portion of the route remains active.

59 comments:

Peter said...

Excellent news. Shows that the judge truly understands what is at stake.
Makes sure that the state stays in the running for ARRA and other federal funding, while holding CHSRA responsible for its failure to address UPRR's concerns at the outset.

AndyDuncan said...

That the judge didn't stop work immediately is certainly a good sign. I guess we'll have to wait until the 9th to find out what the proposed remedies are. Hopefully the judge will rule quickly after the meeting on the 9th.

Anonymous said...

Hmmm, the crazies were wrong. Who woulda thunk?

Spokker said...

The judge is friends with Kopp... or was paid off by Diridon... or is in the BART-SFO consortium. Only the Peninsula Justice League can stop this project now.

Peter said...

@ Spokker

No, the judge IS Kopp, he's a chameleon...

Anonymous said...

The document you cite is the High Speed Rail's press release with their spin on events. Wait until the actual court document is filed, but from what I can tell the argument now is not whether or not they have to redo program EIR but whether they are allowed to work on project EIR in the meantime.

Peter said...

My guess is that the court will not require the environmental work end, but that it will instead require a Supplemental EIR be prepared, addressing the true risks of eminent domain along the route from San Jose to Gilroy.

The judge was, after all, formerly of one of the regional Air Quality Management Districts (I think he was the head, in fact). He understands the problems and knows that the remedy of stopping all work is not in the public interest...

AndyDuncan said...

The document you cite is the High Speed Rail's press release with their spin on events. Wait until the actual court document is filed, but from what I can tell the argument now is not whether or not they have to redo program EIR but whether they are allowed to work on project EIR in the meantime.

Regardless of spin, the fact that the judge did not immediately stop work is a good sign for CAHSR, and a bad sign for opponents.

Peter said...

"The document you cite is the High Speed Rail's press release with their spin on events. Wait until the actual court document is filed, but from what I can tell the argument now is not whether or not they have to redo program EIR but whether they are allowed to work on project EIR in the meantime."

What matters is not exactly their wording but the fact that the judge apparently rejected the remedy of stopping work, that he is going to hold a hearing on the proper remedy, and that the ARRA funding is still on track.

Anonymous said...

He did not reject the remedy of stopping work. He merely said he needed a hearing to decide whether or not that remedy was appropriate.

Peter said...

Yes, he rejected the remedy for right now. I should have been more specific.

Robert Cruickshank said...

The actual court document isn't available on the Sacramento County Superior Court site, so this was the best I could do. I have no reason to doubt the veracity of the CHSRA release, which accurately explains the status quo - NO stop to ongoing project-level EIR work, at least until the October 9 hearing.

The anon is right that stopping work is still a possible outcome of the October 9 hearing.

Anonymous said...

October 9th... Does not look good for federal funds... Nor does it look good for getting a business plan together in time for the december deadline for california funds (cuz a bus plan is going to have to include costs, and costs are going to have to include a valid route, and a valid route is going to have to include true costs and scope of row acquisition)

According to what the ever trustworthy and unbiased CHSRA tells us, the judge did not affirm the riteousness of the eir work in any way, he said he wants a hearing to decide. Did anyone expect him to rule on a remediation without a hearing?

By the way, where's a link to the actual court documents?

It will be hilarious to compare the wording of the court documents to the CHSRA's "PR" work on this. It should nicely highlight their slimy tactics.

Robert Cruickshank said...

Anon @10:37, your comment is full of falsehoods. As I said above, the court documents aren't yet available online. The judge DID say that virtually all of the EIR that selected Pacheco over Altamont was valid. The only parts rejected were those dealing with Union Pacific's ROW.

In fact, the judge's move runs counter to the claims of the lawsuit's supporters, who said that the initial decision meant a halt to ongoing HSR work and that a new EIR was going to take place. Neither has been mandated by this judge at this time.

Morris Brown said...

An extract from the judge's order:

On the First Cause of Action, Petitioners and Plaintiffs TOWN OF ATHERTON,
PLANNING AND CONSERVATION LEAGUE, CITY OF MENLO PARK,
TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND, CALIFORNIA
RAIL FOUNDATION, and BAYRAIL ALLIANCE shall have judgment against Respondent
and Defendant CALIFORNIA HIGH-SPEED RAIL AUTHORITY. A Peremptory Writ of
Mandate shall issue under seal of the Court, ordering Respondent and Defendant CALIFORNIA
HIGH-SPEED RAIL AUTHORITY to rescind and set aside its determinations to certify the
Final Environmental Impact Report/Environmental Impact Study (“EIR/EIS”) for the Bay Area
to Central Valley High-Speed Rail Project, and to approve said Project. Respondent and
Defendant CALIFORNIA HIGH SPEED RAIL AUTHORITY shall file a written return to said
writ demonstrating its compliance on or before the seventieth day following service of the writ
upon the Respondent.

========

As someone has previously reported here, what Robert has posted is the spin the Authority is putting on the Judge's ruling, an excerpt I post here.

Just remember, a couple of days before the ruling, you had board members going around saying the suit was frivolous.

CEQA law prevents remedy by a supplemental EIR after an EIR has been certified.

I hope this puts some clarity on this issue.


@Robert:

Obviously you have an inside track to this press release --- it, so far as I can tell, is not posted on CHSRA's website. Do you have a link to the original release?

Clem said...

CEQA law prevents remedy by a supplemental EIR after an EIR has been certified.

Since you seem to know, would you please point us to the exact paragraph of the CEQA guidelines (or CEQA itself) that states this?

Morris Brown said...

@Clem

I don't have that info. I got this from an experienced and well known CEQA attorney, in response to my query to him about perhaps just a supplemental EIR would be all that was required. His statement was as I have written. Apparently if you are in the field, this is basic knowledge.

Anonymous said...

Apparently if you are in the field, this is basic knowledge.

Hogwash. I've been a planner (worked for four different municipalities and two private firms) in California for 15 years. There is absolutely NO such thing in CEQA. Lawyers attempting to use CEQA to derail projects often ASSERT this, but it is NOT NOT NOT part of CEQA. Only under VERY severe circumstances would supplemental EIR not be allowed after an EIR has been certified.

For example, had the judge upheld more than a handful of trivial measures of the lawsuit, Morris' friend might have a point, however, that was not the case. The points upheld by the judge are very, very small in comparison to the full project. Judges have a LOT of discretion regarding this type of thing within the confines of CEQA, and this circumstance hardly qualifies. If the judge were to halt everything, the CHSRA would have a very valid appeal that would likely be fast-tracked, as the judge would be seen as a little wacky by others.

All of that said, the CHSRA better get hoofing with dealing with UP.

Anonymous said...

So, I'm no lawyer here but it looks like, the authority in its press release, is being about as defiant as possible, the judge has ordered the EIR certification to be entirely rescinded? And the CHSRA is saying nothing's going on, 'we win again', (and by the way, we're moving full steam ahead with request for federal stimulus dollars on a project that is so far away from shovel ready, that it hasn't even been DEFINED yet.)

And Robert for his part, is acting as a voluntary mouthpiece for the CHSRA?

Is this about the jist of it?

matt said...

actually the press release could be summarized by this:

"Oct 9th is when the hearing/ruling will be, we will continue as usual until told not to."

Pretty compliant. I am pretty sure the courts just want parties to do what they are ordered to do, not to anticipate the worst and halt everything until there is no chance of being stopped.

This really is no news. The authority will keep on doing what they need to do until the judge says otherwise. Big Deal.

Anonymous said...

Mouthpiece would be the NIMBYS friends at TRAC and the PCL bolth "supposedly" prorail and "green"

lyqwyd said...

I think the only important part of this is:

"A Peremptory Writ of
Mandate shall issue under seal of the Court, ordering Respondent and Defendant CALIFORNIA
HIGH-SPEED RAIL AUTHORITY to rescind and set aside its determinations to certify the
Final Environmental Impact Report/Environmental Impact Study (“EIR/EIS”) for the Bay Area
to Central Valley High-Speed Rail Project, and to approve said Project. Respondent and
Defendant CALIFORNIA HIGH SPEED RAIL AUTHORITY shall file a written return to said
writ demonstrating its compliance on or before the seventieth day following service of the writ
upon the Respondent."

which seems to mean CHSRA has to rescind certification of the EIR within 70 days (about 2 and a half months).

What can be inferred is that the plaintif tried to get all work halted, and the judge clearly rejected that.

So all in all a mixed bag, but like the preliminary ruling, much more in favor of CHSRA than plaintifs.

From my experience, these things are a bit of a heads-up of what to expect as the final outcome.

I don't necessarily find this as good news, but it's definitely not bad news, I think everybody already new the CHSRA would have to get the EIR re-cirtified based on the preliminary ruling.

For the exact details of what will need to be done to get the EIR re-certified, we will have to wait until at least October 9 (we may actually have to wait longer, my understanding is that the hearing is Oct 9, not necessarily a final ruling)

Of course, I'm not a lawyer so I could be completely wrong.

Zach Dahl said...

While I am not a CEQA attorney, I am planner who is very familiar with CEQA and I think the key wording is that the judge is deferring the certification of the EIR/EIS. This is really not that big of a deal. What the opponents were looking for would be a invalidation of the environmental analysis and a re-circulation based on the need to provide new information that was not presented during the 45-day public comment period. Based on the results of the additional noise analysis and negotiations with Union pacific, the judge could still rule that the EIR/EIS needs to be re-circulated, which would be a big setback for the proejct. But neither of these issues appears, at least from how I understand them right now, to be game changers or deal breakers.

But realistically, since the project level EIR is currently underway, the judge could allow the more detailed environmental document to address these issues provided he feels that the ramifications are not detrimental to the project alignment as a whole.

jim said...

temp terminal progress

jim said...

Alarming news: Senator John McCain has just proposed 20 amendments to a transportation funding bill that have one common theme: Breaking a federal promise to fund long-planned public transportation projects.

As one news report said, "McCain's targets range from a light rail project in Sacramento, California to a bus-rapid-transit system in Washington state to a rail extension linking Washington, D.C. to Dulles International Airport in northern Virginia." Other projects, both urban and rural, would be cut in Connecticut, Delaware, Florida, Hawaii, Michigan, North Carolina, and Utah.

Aside from one small, token bridge project, McCain's hit list would leave billions in highway earmarks alone.

Senators are expected to vote TODAY on these amendments: Please write your senators now and tell them to vote NO on this assault on clean, oil-saving transportation projects - and to encourage their colleagues to do the same.

And that's not the only threat.

Senator Tom Coburn of Oklahoma has proposed seven additional amendments to block the Department of Transportation from spending any money on clean transportation. Sen. Coburn would completely bar communities from using their federal funding to support bicycle and pedestrian infrastructure.

We have to stop this today: Tell your senators to vote against the McCain and Coburn amendments and stop this assault on communities that are building a transportation network for this century, rather than the last one.

Thank you for your commitment to a clean, safe, 21st century transportation system!

Sincerely,

Ilana Preuss
Outreach and Field Director
Transportation for America

Anonymous said...

Robert somehow got a leaked advance version of the press release.

It was just posted to the Authority's website (12:00 noon 9/15/09)

http://www.cahighspeedrail.ca.gov/news/CHSRA91409.pdf

Roberts must have good connections with insiders.

AndyDuncan said...

Robert somehow got a leaked advance version of the press release.

It's a conspiracy! They're sending out press releases to members of the press!

jim said...

its socialism! keep the government out of my public transportation!

AndyDuncan said...

Does anyone have a link to the actual order? Morris?

We've Got No Money for Toys said...

Stop celebrating. HSR will not be built anyway. It costs too much and there isn't enough funding. At most you can have a stretch of HSR between Los Banos and Madera, or Between Lancaster and Mojave, so that all of you, Socialist Train Huggers, can meet once a year and mentally masturbate over trains.
Not enough people will use this train to justify the expense. Cities in California aren't dense enough, except for SF, and people will soon realize that it is still faster and cheaper to directly drive to their destination the whole way, rather than to take the train and then rent a car once they get to the station. The only people who will use it are some of those who now fly from LA to the bay area or viceversa (and only assuming the train will be just as fast and just as cheap as airplanes).
The problem I have with you Train Huggers is that you want the average taxpayers to fund your toy, regardless of what the costs are and what benefits it brings. That's the issue I have with Lefties. They want governments to take care of their whims. Fortunately at the next election the Democrats will lose again, and when this nightmare is over, people will begin to reason and realize what you really are: a bunch of socialists.
People are already starting to see what you really are. Did you see the over 1 Million people marching on Washington like this weekend? That's just the start of the People's revolution against the Communist dictators.

Alon Levy said...

Did you see the over 1 Million people marching on Washington like this weekend?

You mean the 60,000 people? Yes. They carry signs like "The White House has a lyin' African" and "SeƱor citizens get free health care, senior citizens can drop dead." But to call them racist would be to play the race card.

Anonymous said...

Ahhh, Toys, he makes me laugh, makes me laugh. So cute.

lyqwyd said...

that 1 million number was a bold-faced lie by Matt Kibbe.

Next time you should probably check your sources.

jd said...

@ money for toys

OMG go read a book or somthing (Ayn Rand does not count)... At least go out and buy a coherent political philosophy.

Do you even think about what you write, because it sounds like some straight-up kook-stream-of-consciousness, daddy-o.

This project was put before the electorate in a poll with one of the largest voter turnouts in a gengeration. That is called Democracy.

The street in front of your house (or compound) that you use to get to work (supposing you have a job)which was built with our collective tax money and planned by a state-central commitee (DOT) is a better example of socialism

jd said...

P.S. "The People's revolution against communist dictators"

This is so damn funny i don't even know where to start! I bet you also think Czar's are communists.

Alon Levy said...

JD, the road network in the US is an example of socialist failure, not socialist success.

Government planning has a mixed record on infrastructure and a poor record on industrial policy, but a good record on services with long-term benefits like health and public education.

Alon Levy said...

JD, re: czars, they're not communist, but they're not libertarian, either. Libertarians, as well as some liberals, don't think in terms of communism or fascism, but in terms of totalitarianism. The more obnoxious libertarians sometimes defend the czars and the fascists, but the less obnoxious ones would just lump them as another example of authoritarian government we should fight against.

We've Got No Money for Toys said...

Maybe it wasn't a million people, but it was damn close to it. The claim that it was only 60,000 is the usual lie propaganda perpetrated by the liberal media. And only a few of them were racist. The majority was a lot of concerned citizens who maybe even voted for Obama, but now realized the mistake they made. Unfortunately the media in this country is controlled by the liberal elite (just a bunch of socialists) and if you want some kind of honest reporting you have to rely on Fox News. Even Rush Limbaugh informs more accurately than CNN or NPR (another den of socialists).
JD: I know damn well that Czars aren't necessarily communists. They are appointed by the president (like the drug Czar or the whatever Czar) therefore they can be both Republican or Democrats. Do you think I'm stupid? And I read more books than you. People like you I'd like to run over with my truck until they become part of the asphalt (the best invention ever made by mankind).

Rafael said...

@ Alon Levy -

a majority of the people of California voted in favor of prop 1A(2008), just as an earlier generation voted for the politicians who decided to build the interstate highway system and other roads.

So what's with all this hogwash about totalitarianism? I was in Berlin last week, that's where there is ample evidence of the many scars it left behind. Not so anywhere in the US.

As for the differences between libertarians, who exactly gives a damn? They're not a political or even an intellectual force to be reckoned with, just a bunch of anti-government kooks.

AndyDuncan said...

I know damn well that Czars aren't necessarily communists. They are appointed by the president (like the drug Czar or the whatever Czar) therefore they can be both Republican or Democrats. Do you think I'm stupid?

After that comment? Maybe.

Zach Dahl said...

@We've Got No Money for Toys said...

I hate to even use this space to respond to you, but the level of drivel that you spew is just too much. Did you happen to watch Fox news during the last eight years? If you did, and can't see the hypocrisy in reporting now that a Republican is no longer in office, then your head is shoved so deep in the sand it is not worth wasting another word on you.

Go find an echo chamber and have a blast. Clearly rational and intelligent discussion is not something you have the capacity to engage in.

Dumb toy truckkkss said...

Toys is a Fox brain Moron

We've Got No Money for Toys said...

When you don't have serious arguments to defend your silly positions on your Government subsidized pork toy projects (like your train) you just start insulting. Just a typical liberal.

Jay said...

We've Got No Money for Toys;

It's people like you that give Republicans like me a bad name.
Yes it is true that I am a Republican, but I am one of the few that get it. I am 100% for HSR and Mass Transit despite the cost, and despite the “bigger government” aspect for a purely selfish reason.
I want less people driving and better drivers on the road. I also want the option not to subject my car to the wonderful parking jobs of some people.
If we can get people who don’t want to or can’t drive off the road, which will be a win win for everyone.

(yes that is my yellow car in the picture)

Eric M said...

No Money for Toys,

Pot calling the kettle black!!Hypocrite

We said...

Jay: you are a Republican? If you are you don't belong there. You're just a disguised liberal, like Specter. Please surrender your Republican registration and next time register as a Democrat. No serious republican would support a socialist French inspired project like this one, which will end up being a subsidized bureaucracy like Amtrak with no hope of ever recouping the enormous capital investment necessary for the construction. For those of you who forget the Eurotunnel never turned a profit and had to be bailed out. Same with all other state owned rail companies in Europe, which turn out nothing but losses every year, which taxpayers have to bail out each time. And for whom? For the people at large? No. In the end the only beneficiaries of this pork project will be the contractors who build it, the companies who build the trains, and a bunch of rich business travelers that shuttle back and forth between LA and SF. In the end the working people, the every day commuters, whom you pretend to be supporting, will be the losers. They'll be the ones who pay the bill (through taxes) and don't enjoy the benefits, because they'll keep traveling in lousy BART and Metrolink trains for their commute. In the end you're not only a bunch of socialists, but a bunch of FAILED socialists, because you don't even know how to protect the working class. You're just LIBERAL ELITISTS, which is much worse than being a socialist.

We've Got No Money for Toys said...

The previous comment was from me. I accidentally pressed the publish button.

Anonymous said...

Toys: "For those of you who forget the Eurotunnel never turned a profit and had to be bailed out."

@ Toys: "Groupe Eurotunnel, which operates of the undersea rail link between England and France, said first-half profit rose as traffic increased on passenger trains and its vehicle-carrying shuttle service. Net income jumped to 26 million euros ($41 million) from 1 million euros a year earlier..."
--Bloomberg, 7/18/08

Robert Cruickshank said...

Toys, you planning on calling for the privatization of:

Freeways
Airports
Roads
Police and fire departments
Schools
Medicare
Tricare
VA
US Armed Forces

If so, then at least you're consistent.

If not, then you are holding rail to an unrealistic standard.

Should be noted that the Acela generates an operating surplus. 100% farebox recovery.

Jay said...

We've Got No Money;
You owe me a beer.
(I was drinking one when I read you latest, and could not help but laugh..I think I might need a key bord as well)

Alon Levy said...

As for the differences between libertarians, who exactly gives a damn? They're not a political or even an intellectual force to be reckoned with, just a bunch of anti-government kooks.

On highway matters, they are. Republicans love to quote Reason on mass transit.

jim said...

and soon we will all have to drink wine and eat cheese and take the entire month of august off for a nice paid vacation! gasp!

no on is going to take away my right to clog my arteries with fast food while inhaling carbon monoxide as I work myself into an early grave with a stress induced coronary damn it.

Screw those french with their clean air and healthy food and relaxing vacations!

Anonymous said...

HAVE TOY TRUCK..can we run over you fat stupid AMMMMican ASS????

Andre Peretti said...

I think "we've got no money for toys" is a fictitious blogger created by train lovers to discredit their opponents. His cretinous postings are so counter-productive that they can't be the work of a conscious HSR opponent.
Otherwise you have to believe he is some sort of hermit whose only link to the outside world is a one-channel TV, like in North Korea.

jim said...

no, he's real. All it takes is a low IQ and a few hours of fox news and you get these Frankentrolls all over the place.

Andre Peretti said...

@Jim
This may come as a shock to you, but France is McDonald's second market, just after the US. Students tend to desert school cafeterias and flock to the local "MacDo". Teenager obesity, which was unknown here 20 years ago, is now a problem.
Fortunately, there are many foreign tourists in France, and they will accept nothing but French food.

jim said...

well i have yet to see a fat frenchie , ever, and I have so many of them come throught the office every week,

jim said...

they're probably getting to the kids but they know better and will put a stop to it.

jim said...
This comment has been removed by the author.