Tuesday, November 3, 2009

Final Judgement in Atherton v. CHSRA

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

It's pretty much a formality at this point, but Judge Michael Kenny has issued his final judgement in the case of Atherton v. CHSRA, ordering the CHSRA to revise the EIR for the Bay Area to Central Valley segment of the project to address the concerns over noise/vibration and ROW sharing with UPRR that the judge cited in his initial decision. See both the Final Judgement document and the Peremptory Writ of Mandate below, and then my comments:

Final Judgment in Atherton v. CHSRA

Peremptory Writ of Mandate

As we explained earlier, the judge rejected plaintiffs' request to stay further HSR work. According the the CHSRA, this outcome does not impede them from continuing to move forward as they currently are with project-level EIR and design work, and should not jeopardize stimulus funding. The judge did not order a complete reopening of the full EIR process, and CHSRA is confident they can submit the revisions on time. The judge gave CHSRA 70 days to show their compliance (by decertifying the EIR - they have more time than that to finalize the revisions; thanks to the comments for pointing this out) although exactly what that means isn't precisely clear in the documents.

Although we'll hear the project opponents and those that filed the lawsuit claim victory here, it's difficult to see how those claims can be justified. The Pacheco alignment is upheld, CHSRA can continue to plan and design the system, they'll still be getting federal stimulus funds, and the judge has given them wide latitude in how they comply with the order to revise the EIR. Furthermore, the overwhelming majority of the plaintiffs' claims, particularly the main ones about the Pacheco alignment, were thrown out. The plaintiffs basically got lucky in that the judge found some other parts of the EIR that the plaintiffs never really focused on were deficient and necessitated a revision.

What was promised to us in the summer of 2008 as a lawsuit that would stop the project in its tracks and blow up the route decision has essentially fizzled. CHSRA will produce an improved EIR and address the UPRR issue, something they needed to do anyhow. The plaintiffs will get their court costs paid, but otherwise they've failed to accomplish their goals of undermining the HSR project.


Anonymous said...

The 70 days refers to the requirement that the CHSRA formally (in writing to the court) rescind their certification of the route selection and the Program EIR.

Anonymous said...

Also says that the identified defects shall be corrected before the CHSRA resubmits the EIR for consideration and approval. So, CHSRA's going to have fix and go through the certficiation process again. I'd say it looks like the judge pretty much put the whole thing back on the table.

Anonymous said...


I agree you are misreading this. CHSRA has 70 days to decertify Program EIR, not 70 day to fix it.

Joey said...

I'd say it looks like the judge pretty much put the whole thing back on the table.

Only the sections that were deemed inadequate. There is no reason to revisit the rest. And there's only so much that can really change in terms of ROW/vibration issues.

Clem said...

I'd say it looks like the judge pretty much put the whole thing back on the table.

I would have thought the judge would give more specific guidance on what would and wouldn't be open to future litigation, but I have to agree with you. Looks like it's gonna be open season, excepting the specific issues that were already litigated. I'm sure a good lawyer can find more deficiencies to squeeze out of this EIR.

Peter said...

@ Joey

Yes. This does not mean that there will be any significant changes to the route. Thinking that suddenly the Authority will say, "Oh, wait, we've now decided that Altamont is the better alternative" is insanely wishful thinking.

There is no way that that is going to happen, especially with all the environmental work continuing on the other segments. That was the big hurdle that the plaintiffs had to clear, namely whether there would be a preliminary injunction against continuing environmental work.

Peter said...

@ Clem

I don't think the judge is able to say what is open to future litigation.

The judge doesn't have the authority either to say what would be acceptable mitigation.

A new EIR IS, however, going to be open season.

This is the Authority's opportunity to bullet-proof the EIR.

Reality Check said...

Robert wrote: ... [the plaintiffs] failed to accomplish their goals of undermining the HSR project.

The plaintiffs are the proverbial strange bedfellows. While the primarily NIMBY-motivated plaintiffs may have sought to "undermine the HSR project" ... others are longtime HSR advocates and quite reasonably seek to have Altamont Pass be restored as the preferred alignment because they selflessly believe it's the superior alignment and the HSRA is making a grave and costly error by pursuing Pacheco to the exclusion of Altamont as the HSR main line.

Anonymous said...

"Thinking that suddenly the Authority will say, "Oh, wait, we've now decided that Altamont is the better alternative" is insanely wishful thinking."

Or, perhaps its insanely sane thinking - that the CHSRA will have had about a year (and change in leadership), to take a closer look at the 'insane' opposition on the Peninsula and decide their Altamont route work in progress can become 'the new preferred route' given the NEW info that will be added to the NEW and improved EIR. Its a face saving way for them to back off the Peninsula with legitimate reasoning other than just pure Nimby pressures.

(ie: new info brings to light certain impact elements/costs not before included in the previous decision, which now causes shift in decision)

Perhaps they now decide to specify Altamont to SJ, and reframe SJ to SF - letting future electrified Caltrain become the official leg from SF to SJ and let Caltrain battle the NImby's on that instead of dragging CHSRA down into that muck. I wouldn't be suprised if Pringle was thinking along these lines - screw the SF Peninsula, they'll be last in line anyway.

Peter said...

Does anyone know what the "Statement of Overriding Considerations" that was ordered withdrawn was about

I think it was Rafael who said they didn't make any such Statement, that all impacts were going to be mitigated.

Clem said...

Statement of Overriding Considerations (see section 8 of the document)

lyqwyd said...

Ugh... what a bunch of indecipherable legalese...

If people want to dream that this means Pacheco is going to be abandoned for Altamont, who cares? They will be sadly disappointed.

I can't really imagine the CHSRA is dumb enough to trade the devil they know for the devil they don't.

Even if the peninsula NIMBY's are right and by some crazy miracle they change the alignment... again, who cares? it's just trading one set of NIMBY's for another. Wel'll still get HSR.

The real question is:

What's the procedure when they re-certify the EIR? Do they have to take comments again? How long until they can start laying rail?

There will probably be another (or several more) lawsuit(s). As long as there's no injunction, then at least for the short term, it's not a big deal... the work can go on. Plaintiff will probably request an injunction, hopefully it will be rejected.

Hopefully some of the more legally inclined can weigh in and tell us what this whole thing really means.

Rafael said...

@ lyqwyd -

(part 1)

my reading of the tea leaves is that the court has ordered the following:

a) that CHSRA rescind its certification of the Bay Area to Central Valley Final Program EIS/EIR within 70 days of this ruling via a written statement to the court.

The ruling does not appear to affect the validity statewide Final Program EIS/EIR, since it de facto excludes the Bay Area to Central Valley section. That said, SF-LA-Anaheim is the starter line of the entire network, so CHSRA needs to proceed with some caution even in other segments.

b) that CHSRA take appropriate action to address the four counts in which the court ruled in favor of plaintiffs.

c) that CHSRA reconsider its statement of overriding considerations, a CEQA term for the document supporting the decision to certify, in the context of these remedial actions.

d) that CHSRA pay the plaintiffs' legal fees.

In terms of due process, CHSRA now needs to execute on these four points in parallel with ongoing project-level planning. Once a draft is ready, there will need to be another round of public and agency comments etc.

IANAL, but common sense suggests that fresh legal challenges to the revised documents will have to be limited to these remedial actions, including especially the fresh conclusions arrived at in the revised context. Otherwise, the CEQA process will never be completed, which isn't what lawmakers had in mind.

Rafael said...

@ lyqwyd -

(part 2)

Of the remedial actions, the most important is arguably the matter of right of way acquisition between Lick (roughly 1/4mi north of there the existing tracks diverge from the Monterey Hwy in San Jose) to Gilroy.

For a credible repair job, CHSRA must first spell out and provide supporting arguments for the target speed profile and traffic volume in this stretch.

Second, it must spell out the process by which it will acquire the requisite right of way for each local route variation it decides to study.

Third, it must identify locally applicable objective noise and vibration limits. Psycho-acoustic aspects of noise and all visual impacts are by definition subjective, but there are scientific methodologies for qualifying them for a population.

Fourth, it must demonstrate that there are feasible and affordable technologies for mitigating visual, noise and vibration impacts such that the proposed solution is within the identified limits. This may be accomplished by documenting relevant details of HSR implementations in other countries, computer simulations or other means.

The lines between program and project-level EIS/EIR blur in this context because the limited available space means the environmental impacts on properties adjacent to the alignments alternatives are potentially higher than usual.

CHSRA will most likely not be able to actually acquire the right of way down to Gilroy before the program level EIS/EIR is completed, but it cannot blithely declare Pacheco Pass as the preferred route without showing that acquisition and implementation will likely be possible once funding is available.

A similar four-step sequence is required for the SF peninsula, though in that case at least the right of way is mostly there. CHSRA needs to zero in on the sections where the Caltrain corridor is currently too narrow to accommodate four tracks side-by-side and, spell out construction strategies that minimize the need for land acquisition while keeping construction costs, risks and disruption levels within acceptable limits. In addition, CHSRA needs to clarify if it intends to rectify the alignment to enable express service and/or eliminate noise and maintenance issues related to tight curve radii.


For belts and suspenders, CHSRA should revisit the following Altamont Pass alternatives in light of UPRR's stance on selling any right of way for the purpose of constructing a new rail alignment dedicated to high speed passenger service (i.e. no longer available for UPRR freight trains even in emergencies):

1 - SF to Santa Clara to Fremont to Pleasanton, Tracy etc.

2 - separate routes from SF and San Jose Diridon to Union City, Pleasanton, Tracy etc.

It should be easy enough to rattle off all the reasons why both of these would have environmental impacts as great or greater than those of the Pacheco Pass route, assuming viable rights of way are still available at all.

It would be wise to also go through this exercise for the 101 and 280 options in the SF peninsula in more detail than has been published to date. What may be patently obvious to a professional transportation planner may not be to John Q. Public.

Morris Brown said...


Your post:

"a) that CHSRA rescind its certification of the Bay Area to Central Valley Final Program EIS/EIR within 70 days of this ruling via a written statement to the court."

is not quite correct. The writ clearly states that

"you are commanded immediately to ....

thus the CHSRA must immediately carry out the mandates in the writ,(de-certify the Final EIR and rescind the over-ridding findings) and within 70 days, present proof that this has been accomplished.

So right now, there is no certified EIR for the SF to Merced portion of the project.

I'll not comment further on what possible implications this might imply in the near term.

Anonymous said...

fresh legal challenges to the revised documents will have to be limited to these remedial actions

That does sound rather hopeful, doesn't it?

Peter said...

Interestingly, the issue of attorney's fees was actually postponed. Not just to determine the amount, but it looks like also to determine the actual eligibility for them.

Anonymous said...


One of the few saving graces of CEQA is that it give the little guys a change to fight back. Attorney's fees are often the stumbling block for a group being able and willing to file a legal action based on CEQA.

CEQA clearly calls for legal fees to be paid if the suit is successful, as was the case here. It is not at all unusual for there to be a small time interval while the amount is justified and approved by the court. The question of whether legal fees will be awarded, was settled in the judgement.

Anonymous said...

I'm wondering how project level work proceeds when the program level is cracked wide open in many places. They don't even have a route selected at this point, how can they go into the deeper level study on the route? What are they choosing to go in to deeper level on and how do they defend that choice?

Or stated another way - if they skip straight to project level work and use that as the evidence behind the program level EIR - does that mean they have to supply the deeper level evidence behind ALL alternatives in the updated program level EIR?

Also, can they put knowledge now gained back in to the dark for the program EIR? For example, if they have learned more about noise or visual or water (or whatever), impacts since the original EIR (and we KNOW FOR A FACT that they have - because they're proceeding on project level study), can they leave vague statements untouched in the new EIR, or do they have to bring ALL their new data into the document?

It seems that if they fail to update the WHOLE document with all the new info they have now, that ALL parts of the document could be challenged on the basis of failing to bring all known information to light. In other words - they'll be hiding or ignorning known facts at that point.

The requirement to decertify the EIR wasn't piecemeal (decertify 4 sections, or 4 paragraphs or 4 pages, or something) It was wholesale. Decertifty and resubmit the whole thing.

Anonymous said...

My understanding is that the HSRA tried to get the judge to say they just had to fix the listed issues and the judge would not agree to that.

Anonymous said...

Peter, read the judgement. It should be quite clear to any aspiring lawyer.

Peter said...

@ Anon 9:33

I haven't read the legal documents in a while, but I don't recall the Autority asking for only a piecemeal decertification.

Peter said...

I just skimmed it. Am at work right now.

Rafael said...

@ Morris Brown -

the court can't de-certify the EIS/EIR, it can only order CHSRA to rescind its own certification. While it has demanded that this be done immediately, it has given a 70-day grace period for CHSRA to prove it has done so.

This period is given so the defendant can decide whether or not to appeal the final ruling. Since CHSRA has said it will abide by it, I expect they will enact the decertification at their next board meeting.

As discussed above, the court did not spell out how CHSRA should remedy the situation, just that it must. It had earlier ruled that project-level planning work need not be stayed while the program level documents are revised.

There is a small but nonzero risk that some project-level planning work will eventually become moot as a result of the revisions. C'est la vie.

A different question is if the individual SF peninsula construction projects included in the stimulus grant application can go ahead or if USDOT will fund them without a certified program level EIS/EIR. The Transbay Terminal project applied for funds on its own and its completed, separate EIS/EIR was not a subject of the court's final ruling on Atherton vs. CHSRA.

@ anon @ 8:26am -

jeez, excellent quote out of context there. I was referring narrowly to additional challenges to the program-level EIS/EIR after it is revised. Of course, people are permitted to file whatever lawsuits they like. We'll have to see if a court throws out any that don't relate to the revisions or the conclusions that CHSRA must reconsider in their favor.

Anonymous said...

Rafael: the court can't de-certify the EIS/EIR, it can only order CHSRA to rescind its own certification.

OMG. The record stands: DE-CERTIFIED!

Anonymous said...

Final Score Card:


CHSRA consultants (additional studies = more billable hours = profit!)
lawyers for both sides (not everything has been settled = more billable hours = profit!)
Peninsula residents (ruling does not halt project or force Altamont = improved Caltrain service/HSR sooner)


CHSRA (must spend more money on consultants...but it's not clear that bothers them)


California taxpayers (more studies and lawyers = more taxpayer dollars spent)
Dublin/Pleasanton/Livermore/Tracy residents (near-zero chance of Altamont = no improved commute service likely)
Litigious NIMBYs (no injunction = lawsuit impact minimal at best)

Peter said...

@ Anon 10:27

Only the attorneys for the plaintiffs get the moolah. The attorneys for the Authority are with the AG's office, and therefore just get their normal salary (if I understand it correctly).

Anonymous said...

Why all the hoopla over "decertifications" and rejoicing over CHSRA having to amend an EIR?
In the end, California will still get its HSR, with entry's into the Bay Area via Pacheco Pass and Altamont overlay. Hence continued scoping meetings and public feedback.
That's just the plain truth, regardless of all the NIMBY, naysayer "celebrating."

Rafael said...

O/T: San Jose Mercury News guest editorial urges Sen. Feinstein to boost annual HSR funding in conference.

Rafael said...

@ anon @ 10:11am -

read the wording of the writ: it says that the court is ordering CHSRA to rescind its own certification.

I was simply referring to the legal mechanics because Morris Brown's comment. In practical terms, the outcome will of course be the same in short order.

Rafael said...

@ anon @ 10:27am -

"Dublin/Pleasanton/Livermore/Tracy residents (near-zero chance of Altamont = no improved commute service likely)"

While there will no doubt be some long-distance commuters who use HSR between e.g. Fresno and San Jose or Bakersfield/Palmdale and LA, this type of service is not its intended function.

Altamont would have reduced travel times between the Bay Area and Sacramento, but it's hardly the shortest route. Upgrading Amtrak CC would do a better job of that.

Meanwhile, precisely because it was such a bone of contention, CHSRA is in fact planning upgraded commuter service between Stockton, Modesto and San Jose. AB 3034 de facto requires that it do at least that much.

However, CHSRA has already indicated that high speed commuter trains would not be profitable. Constructing and maintaining miles of aerials above freeways as well as long tunnels through the mountains for a service that currently has a weekday ridership of perhaps 3,500 is indeed out of whack. It would still be out of whack at 10x the ridership. Therefore, someone - presumably the counties served - would have to commit to hefty operating subsidies for basically ever.

In practice, I suspect that the lack of right of way between San Jose and Fremont alone will force planners to drastically scale back their ambitions. Service may well remain based on FRA-compliant diesel rolling stock, though ACE could switch to lighter DMU gear. (Most) grade crossings will likely remain for the time being, top speeds remain at or below 110mph in the Central Valley and more like 79mph west of Altamont Pass.

Successful commuter service will depend primarily on eliminating freight-related delays, e.g. by pressing the old Southern Pacific right of way between Niles and Tracy back into service in an intelligent way. The alignment is already graded, but there are a few complications: NCRY operates historic trains and signaling on the track along the north slope of Niles Canyon and, short section of the right of way have been lost to developers in Pleasanton and Livermore (near Greenville Rd). The alignment also contains a lot of fairly tight curves.


Over time, businesses may decide to cluster around the emerging transit hubs if this gives them an edge in property taxes and/or the ability to hire and retain qualified workers.

For the time being, though, commuters into Silicon Valley still need some way to reach their final destination in sprawling low-rise business parks surrounded by large parking lots. That means enabling timed transfers from ACE to buses and corporate shuttles. That means giving priority to punctuality and WiFi service over substantially higher line haul speeds.

Another priority should be trackage rights between Lathrop and downtown Modesto. UPRR is far more likely to offer those to FRA-compliant passenger trains running at standard speed, though it may well insist that sidings be constructed for stations so freight trains already at speed don't need to slow down. Since the company's Central Valley line is much busier than the one along the central coast, that would be an eminently reasonable condition.

Longer term, a program of gradual rectifications (i.e. short tunnels) to enable higher speeds through the mountain sections. Note that while modest passive tilt (Talgo) is bulletproof, active tilt train technology entails sky-high maintenance overheads when applied to FRA-compliant rolling stock (cp. Acela Express).

A wildcard in all this is whether BART actually gets extended to an intermodal station in Livermore. If so, an ACE upgrade might well prioritize the section east of that town to provide effective relief for I-580.

Peter said...

Speaking of BART to Livermore, one of their attorneys told me that they will be presenting the Draft EIR for the extension at the BART Board Meeting on November 19.

AndyDuncan said...

@Peter, yeah I got a canned response from them for a comment I submitted, they said they expected to release the Draft EIR in "early november" and that there would be two public hearings and a 45 day comment phase.

The draft EIR is supposed to get uploaded to their site when it's released.

Peter said...

I guess they upped the schedule. Per the BART website, the Draft EIR will be released tomorrow.