Final Judgement in Atherton v. CHSRA

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.

Judge Kenny: Planning Work Can Continue

Judge Michael Kenny has issued his tentative ruling in the issue of whether work could continue on the Bay Area to the Central Valley segment of the high speed rail line - and it is a victory for CHSRA:

Petitioners have requested that the writ of mandate to be issued in this case include a stay of all of respondent’s activities dependent on or premised upon the approvals being ordered rescinded. Respondent opposes the request. The Court set a briefing and hearing schedule on this issue.

The Court has considered the parties’ arguments and the evidence they have submitted on this issue. The Court concludes that under the circumstances of this case, staying project-level activities is not appropriate pursuant to Public Resources Code section 21168.9(a)(2) and pertinent case law.

The actions for which a stay is being requested are studies with no potential for adverse change or alteration to the physical environment. Additionally, the Court concludes that such studies do not create such momentum that respondent Authority would be unable to comply with its CEQA obligations as previously determined by this Court.

Accordingly, petitioners’ request that the writ to be issued include a stay is denied.

CHSRA offered this statement in response:

“We’re happy to see that the tentative ruling supports our position that granting a stay on the project is unnecessary since the project is in the planning stage and could cost the state funding and jobs,” said Jeff Barker, the Authority’s Deputy Director.

"We don't believe that anyone is interested in jeopardizing billions of dollars in economic stimulus for California, delaying the creation of tens of thousands of jobs, and forcing taxpayers to shoulder higher costs to build the system," said Barker.

Totally agreed. There was no reason to delay planning work while the CHSRA goes back to address the two items that Judge Kenny said were inadequately examined in the program EIR.

Once again the HSR deniers behind this lawsuit have lost. They basically got lucky on the UPRR ROW issue, which was never a core element of their lawsuit, and their other efforts to stop HSR in its tracks have been consistently shot down by this judge. I have every reason to believe that will continue.

Has Palo Alto Turned The Corner?

Over the weekend Palo Alto hosted an HSR design workshop that included working groups focused on a number of different neighborhoods in Palo Alto, Menlo Park and Atherton. I wasn't able to attend owing to last-minute work commitments. But judging by the reports, it was an extremely productive event where residents came up with their preferred plans - and even explored ways to pay for them.

If you were there, by all means, post your thoughts in the comments. For now, I'm going to have to rely on the local press. Sue Dremann at Palo Alto Online had a good overview:

The two-day workshop, sponsored by the Peninsula Cities Consortium, brought together residents, city and Caltrain officials, architects, and experts in transportation, geology, tunneling, historic resources, finance and public art to discuss the visionary futures for the rail corridor.

The consensus was for undergrounded tracks with parks, community gardens, a bicycle boulevard, green spaces, shops and streets to connect neighborhoods now divided by the at-grade and elevated tracks....

Most groups said tunneling the trains seemed the best alternatve -- but they recognized the complexity and cost. The groups considered boring deep beneath creeks and avoiding damage to El Palo Alto, the city's iconic redwood.

Dremann's article goes into some detail on the various neighborhood proposals, but I want to focus on the bigger picture. Assuming this is an accurate reflection of the event, I am extremely pleased to hear this. I've always been open to a tunnel - the question is instead the cost, and according to Dremann, the locals fully understand it:

Some groups suggested the project could be funded by a one-percent sales tax hike, as was done in Berkeley when Bay Area Rapid Transit (BART) was built. Others suggested a voter-approved 30-year property-tax fee could cover costs.

Both funding models are sensible, since they rightly recognize that they will have to pay for a tunnel themselves. If these cities can muster the public support to approve such a tax, and if they can show it will pay for the costs of the tunnel, then I'll be one of the biggest supporters of such a plan.

Funding an underground solution is not likely to be a simple matter. Gennady Sheyner's Palo Alto Online article makes that pretty clear:

But speakers at Sunday's workshop also acknowledged a major obstacle standing between them and their idealistic vision: the high cost of creating underground tunnels. While rail officials don't expect to have a cost estimate for the project for another year, they have estimated the cost of boring tunnels to be about 6.5 times as much as building at grade.

The cost of building underground tunnels is also expected to be beyond the rail authority's $4.2 billion budget for the Peninsula segment.

Glenn Isaacson, principal at Conversion Management Association, said cities would have a hard time funding a tunnel, but offered several ways in which it could be done. Aside from passing bond measures or enacting special taxes, cities could sell land currently occupied by the Caltrain right-of-way and use the proceeds to pay for the tunnels, he said.

Workshop participants have also singled out a downtown stretch between El Camino Real and Alma Street as a possible site for dense, revenue-generating developments, including multi-story condominiums. But Isaacson warned that the project would still likely require significant additional funding from the California High-Speed Rail Authority.

"I'd urge you to watch your pennies in the cost of what you select," Isaacson advised the audience. "You'll have a hard time covering 100 percent of the gap."

My guess is they'll have to do all of the above - property assessments, passing a bond, and selling air rights - to fund an underground solution. One possible solution is for the CHSRA to lay out the cost of an above-grade solution (some of these articles mention an "at-grade" implementation as a possibility, which it is not) and then tell the locals that if they want to go above and beyond by building a tunnel, they have to pay for those added costs.

If you want to get public support for paying those costs locally, you have to sell not the process, nor the technical solution, but you have to sell a vision. A vision of a better Peninsula. And that too is something that the locals understand:

California's high-speed-rail project could offer Palo Alto and its neighboring cities a rare opportunity to revitalize their downtown districts, transform old train tracks into leafy gateways and bring neighborhoods closer together, a group of leading urban designers and architects said at a Sunday workshop....

Judith Wasserman, a member of Palo Alto's Architectural Review Board, gave the plan a special name: "Together Again for the First Time." Wasserman said an underground system could offer the city a long-awaited chance to connect its neighborhoods.

"The town has always been divided by the train," Wasserman said. "We've never had good cross-town connection. This is an opportunity we'll never have again."

Of course, Wasserman has it backwards; the train was there before the town. But that shouldn't take away from what is a very reasonable and supportable vision for how HSR can enhance and improve the local community.

That all being said, there are two huge, related caveats that we all need to keep in mind before we pronounce the corner being turned on the Peninsula HSR debate.

The first is the above-grade solution. It makes sense for everyone involved to have the community do work on determining how to implement an above-grade four-track solution in a way neighbors can live with. Neither Caltrain, the CHSRA, nor the Peninsula cities can afford to pin their hopes on getting voter approval for a tax increase to build a tunnel. Such work may have been done this weekend and just didn't make its way into the reports, but it is vital that the design workshops include an emphasis on planning above-grade solutions.

The second is freight rail. As we saw at the Palo Alto teach-in last month, the Peninsula Freight Rail Users Group is adamant that freight rail continue to operate much as it does today, and Union Pacific has its trackage rights that have to be considered as well. It's theoretically possible to design a tunnel that could accommodate freight rail, but the design for that is very, very different from tunnels for passenger trains alone. Since many of the proposals for tunneling in Palo Alto and neighboring cities revolve around using the at-grade land for purposes other than a railroad, that means they're going to have to build a tunnel big enough to possibly accommodate 4 tracks and high enough to accommodate today's containerized double-stacked freight consists.

I don't know if that all was discussed at the workshop. But it should have been, and it needs to be discussed going forward. Otherwise what was a very productive and valuable planning workshop may not actually be as effective as it ought to be.

Judge: No Halt to HSR Planning

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.

Thoughts on the Palo Alto Teach-In

Yesterday's "teach-in" hosted by the Peninsula Cities Consortium in Palo Alto was a rather interesting - and useful - event. I had to leave right after lunch, so my comments are only going to be focused on the two opening speeches and the first panel. I hope and expect folks will offer their own review of the day, including the afternoon "open space" session, down in the comments.

My comments are divided in two segments: first, some thoughts on the specific presentations and panels I saw, and then an assessment of where things stand on the Peninsula.

Yoriko Kishimoto, Palo Alto city councilmember and one of the lead organizers of the "teach-in," helped put together a very good meeting and should be credited for helping make it happen. In her opening remarks she said that the day's events were to proceed from the assumption that HSR was going to happen on the Peninsula, and the best thing to do was to come together to determine how best it should be implemented.

The first speaker was Gary Patton, former Santa Cruz County supervisor and counsel to the Planning and Conservation League. He proceeded to almost completely blow Kishimoto's constructive opening statement out of the water with an exhortation to the audience to ignore the will of the voters in passing Prop 1A. Patton's argument is that any project can be stopped. He isn't wrong about that, but the idea that we should reject the voters' will runs counter to his calls for democracy and engagement with the planning process.

Patton claimed that voters didn't approve "high speed rail" but merely authorized $10 billion in bonds. Which flies in the face of the fact that Californians voted for that money precisely because they liked the idea of a high speed train following the route the CHSRA laid out. Patton's assumption is that if Palo Alto residents don't want the train, they can organize and pressure their legislators to stop it. But that doesn't deal with the fact that anti-HSR folks aren't the only ones engaged in the public, democratic process, or that 6 million Californians voted to support that train and probably aren't going to be moved by the complaints of a few.

After trying to redefine what voters did last November, Patton went on to repeat virtually every single HSR denier claim, including attacks on ridership projections, cost overruns, and even repeating the "Berlin Wall" claim. Patton even went so far as to compare HSR to offshore drilling.

Patton seems to be of the school that contends any new development that might induce growth is bad and therefore must be stopped. He claimed that Santa Cruz County's changing growth patterns were somehow a success to be emulated, and even cited his role in defeating a Rod Diridon-supported train from San Jose to Santa Cruz. But those aren't exactly arguments in his favor. Instead of allowing more density in Santa Cruz, which suffers from a severe housing shortage and sky-high prices, development was channeled to Watsonville instead. As a result, Santa Cruz County is almost impossible to get around as Highway 1 is hopelessly jammed. The county is desperately trying to get passenger rail service up and running to deal with the transportation crisis. Patton's model for Santa Cruz County has been a failure for everyone except those who have owned homes in Santa Cruz and still have enough work or income or wealth to survive the downturn and the traffic-choked, unaffordable mess Santa Cruz County has become.

No coincidence then that Patton was in Palo Alto bringing the same message to locals. Patton seems to believe that an eternal 1970s can and should be maintained. But what of the consequences? What of global warming? Economic growth? Mass transportation? The future of Caltrain? None of these were mentioned by Patton.

He also mentioned the Atherton v. CHSRA lawsuit and decision, but wasn't honest with the audience about it. He didn't mention the fact that the judge upheld every aspect of the Pacheco choice, and the only thing about the EIR not upheld was the Union Pacific ROW issue between San José and Gilroy, an issue that would exist along the Altamont alignment as well.

Patton's presence, along with Richard Tolmach's presentation later in the morning, undermined Kishimoto's goal of working within the framework of assuming HSR on the Peninsula would happen. Both Patton and Tolmach clearly have not accepted the decision of the voters to build this train, both want to undermine the basic elements of the project, and both prefer to fight HSR itself rather than find the right way to build it on the Peninsula.

I understand the desire of the event planners to have all views represented. But if the goal is to figure out how to build HSR on the Peninsula in a way that residents can live with, having people like Patton and Tolmach arguing against HSR itself is not useful to achieving that goal.

After Patton came Bob Doty, who was a breath of fresh air - not just for the room but for the Caltrain/HSR project itself. He fundamentally understands what needs to be done and how to achieve it. He recognizes that the whole country is watching California HSR. If we get it right, and build it right, we're going to make HSR possible around the country. But if we screw it up, and can't get it built, it's hard to see how HSR is going to get very far elsewhere in the country.

Doty once again showed he is the right person to speak to the Peninsula on this project. He gives clear and direct answers to questions, even when the answer is "I don't know." Doty explained that the best way to get this project built on-time and on-budget is to get the early planning done the right way at the outset - to invest time and money into finalizing all the details, and then sticking to that plan once it has been agreed.

Doty also earned the trust of many in the room, if not all the hardcore anti-HSR folks, when he said that BART to SFO was a "bad project" that "screwed the Peninsula." That was an important point to acknowledge, given the bad taste the project left in many mouths, and given Quentin Kopp's role in the HSR project.

Another key point Doty made, one that keeps getting overlooked on the Peninsula, is that HSR is necessary to Caltrain's survival. Caltrain needs to electrify in order to survive. That's the only way they can accommodate future ridership growth, the only way they can manage operating costs, the only way they can have financial survival with a 75% farebox recovery rate (Doty's prediction).

As the Peninsula continues to discuss the implementation of HSR, Doty is going to play a key and quite valuable role in helping shepherd this to completion in a fair and sensible way.

The morning panel was interesting and quite useful, aside from Tolmach. I wanted to single out Greg Greenway, representing the Peninsula Freight Rail Users Group, who made some important points that need to be kept in mind. Freight rail is just as much a part of our transportation future as is passenger rail. PFRUG supports HSR, but wants to make sure it protects existing freight rail capacity. Greenway mentioned three specific concerns: operating hours, height of overhead wires, and the South San Francisco yard. It is definitely essential to preserve freight rail, and Caltrain/HSR appear determined to do exactly that. Let's hope others on the Peninsula agree and don't support proposals that would limit the effectiveness of freight rail.

Now, on to the broader assessment of where things stand. I believe there are basically two conversations happening on the Peninsula: first, whether or not HSR should even happen on the Peninsula; and second, how it should be implemented.

The first conversation is going to continue no matter what, but it is not useful or productive at this point. The voters have spoken, the route has been selected, and billions of dollars have been or are about to be committed. While Gary Patton is right that none of this is irreversible, there is no reason to turn back now. HSR is good for California and good for the Peninsula. Caltrain cannot survive without it. So I don't see how it does any good for folks on the Peninsula to continue debating whether or not HSR should happen.

The second conversation is very productive, useful, and necessary. I have always supported that conversation, so long as it happens within the framework that Kishimoto laid out at the meeting's outset - an assumption that HSR is going to happen on the Peninsula.

I think for that conversation to be successful, a few things need to be done. First, the public needs to be given a realistic assessment of project scope and limitations. What are some of the financial guidelines? What are some of the legal guidelines? What are some of the practical guidelines? For example, Kishimoto's statement ought to be clarified: HSR is going to happen on the Caltrain ROW. The silly and unworkable notion of building it on I-280 or US-101 needs to be abandoned. But it would also help if there was some sense, for example, of what locals are willing to offer in terms of funding in order to build a tunnel. Residents cannot assume that someone else will pay for a tunnel. Like Berkeley BART, most of that cost will have to be paid for by the locals themselves. If they want a tunnel, it is reasonable to expect them to pay for it, especially if a tunnel is more expensive than above-grade tracks.

Second, future events should probably not include folks who are pushing an anti-HSR agenda. If Palo Alto, for example, truly wants to find a workable solution to the question of how to build the Caltrain/HSR project, then there's really no point to having Gary Patton and Richard Tolmach there.

Third, the rest of the Peninsula needs to be given a greater role. As Bianca noted, Burlingame and Belmont seem to the ugly stepchildren of the Peninsula Cities Consortium - their issues and needs didn't really come up much at the part of the meeting I attended. Sure, the location of the meeting in Palo Alto probably helped explain that bias, but it speaks to a need to think of this project regionally. Residents and elected leaders in other cities are much more supportive of HSR, including Redwood City and Mountain View.

Finally, I think we need to get a better understanding of the different viewpoints out there. A lot of people on the Peninsula want HSR to happen - after all, Prop 1A did get a 67% yes vote in San Mateo County. Their views don't seem to be represented well at these kinds of meetings. There is a small number of NIMBYs who are absolutely opposed to this project, and then there's a grab bag of people in the middle, who aren't opposed to HSR but have concerns about how it will be built. That group is being influenced by the NIMBYs, who have been very effective at getting out their talking points, many of which are misstatements or just flat out lies.

The CHSRA hasn't been able to counter that, primarily due to a lack of funding. This "teach-in" would have been perfect for the summer of 2007 or even 2008. But the CHSRA was fighting for its financial life during those years, as Arnold Schwarzenegger at one point (spring 2007) proposed cutting the CHSRA's budget almost to zero. They'd asked for about $130 million, and ultimately received about $50 million, which itself got delayed by the Legislature's inability to agree to a budget. That didn't help the HSR project get off on the right foot on the Peninsula, and it enabled some mistrust and misstatements to take hold. Much of what is being done now, both on the part of the CHSRA and the locals, is making up for lost time.

And I think that yesterday's teach-in helped push that in the right direction. The NIMBYs and HSR deniers aside, I felt that there is a workable coalition for moving forward on the design process over the next 18-24 months on the Peninsula. Locals need to lay out their preferences and priorities, and project planners need to lay out their own needs, their own priorities, and most importantly, what the limitations are on this project.

If there is a genuine commitment to building HSR the right way - and I felt that many in the room shared that commitment - then this project will bring the benefits to the Peninsula, and improve the quality of life, that it ought to be producing.

I hope others who attended will give their thoughts in the comments. It was good to see you all there yesterday, to those I missed, my apologies. I wished I could have stayed all day.

Finally, thanks to Steve Emslie, Yoriko Kishimoto, Sara Anderson, Nadia Naik, and everyone else who helped make the teach-in happen. It was exactly what the Peninsula needs, and I look forward to participating in future meetings.

Thoughts from the Menlo Park Town Hall

First off, it was a pleasure to meet so many of you in person last night at the Menlo Park town hall event. For those of you who were there and who I didn't get to talk to, my apologies, I'm sure we'll reconnect at the Palo Alto HSR "teach-in" on September 12. I even got to say hello to Morris Brown and Martin Engel, and they were cordial and friendly to me as I was to them. It's not about personal attacks to me - I think they're wrong on pretty much everything to do with HSR, but that doesn't make them bad people.

I also don't know how I would have gotten through the whole meeting without being able to let off steam by making snarky comments about stupid questions to Bianca, especially since my iPhone died with about 20 minutes left in the evening (if you were following the twitter feed and noticed that the tweets didn't go to 9pm, that's why. Don't worry, you didn't miss anything important).

Overall Anna Eshoo deserves credit for hosting this event, and for bringing together folks from Caltrain and the CHSRA to talk about the high speed rail plans. Eshoo ran a good event - folks submitted questions or comments on cards, and Eshoo worked her way through an impressive amount of the hundreds of cards submitted. She promises that either her staff, Caltrain or the CHSRA will respond to each and every card that didn't get answered in person.

Eshoo also did a good job of pushing the panelists to answer the questions that were asked as directly as possible. That was necessary to help build some trust between the audience and the panel, although as I'll explain, that was an uphill battle from the start, as many in the audience had already made up their minds about the CHSRA.

Unfortunately, Eshoo's skills as a moderator did not outweigh her overall lack of familiarity with the project. Eshoo is a Menlo Park homeowner who lives very close to the tracks - "few people live closer to the tracks than I do," she explained several times during the evening. At times her perspective seemed to be that of a typical local - she said "I want less noise, I don't want a 40 foot wall, I don't want to lose my home." Of course, she should have known that there would be less noise, that a 40-foot wall was highly unlikely, and that she wouldn't lose her home. Caltrain and CHSRA officials made those points repeatedly during the night, but I am not quite sure Eshoo understood those points.

I get the sense Eshoo called this meeting in response to numerous constituent complaints about the project, because Eshoo did not show she really understood the HSR project in any detail. One of the evening's most stunning moments came when she realized that the CHSRA already made the decision about the route for the trains before Prop 1A was approved. Eshoo seemed to have it in her head that the whole route itself was still up for grabs, and not just the details of its implementation.

Further, she seemed to be dismayed that Prop 1A included a detailed routing based on the Final statewide EIR. Which is equally stunning to me. Did she expect people to vote for vaporware? To give $9 billion to a project that had no details nailed down?

Eshoo's apparent surprise that a route had been selected before Prop 1A went to voters, and her claims that she didn't know about it, really do not make her look very good. As a sitting Congresswoman she should have known these things. The route debate got widespread media coverage last year, including on the Peninsula. For her to miss that rather key detail suggests she wasn't really paying close attention to what goes on in her district.

And as it turns out, Eshoo did know of these key details - at least she did as of August 2007, when she signed the following letter to the CHSRA, alongside other Bay Area Congressional representatives including Zoe Lofgren, Tom Lantos, Mike Honda and my own rep, Sam Farr:

Title: Letter to Mehdi Morshed, Executive Director, California High Speed Rail Authority
Date: 08/24/2007
Location: Washington, DC
Letter to Mehdi Morshed, Executive Director, California High Speed Rail Authority

Five California Members Sign Letter Calling for Pacheco Pass Route

Washington, D.C. - Representative Zoe Lofgren (D-San Jose), joined with Representatives Anna Eshoo (D-Palo Alto), Sam Farr (D-Monterey), Mike Honda (D-Campbell), and Tom Lantos (D-San Mateo) in signing a letter strongly endorsing the Pacheco Pass route for California's High Speed Rail Project.

The complete text of the letter is below:

Mehdi Morshed
Executive Director
California High Speed Rail Authority
925 L St., Ste. 1425
Sacramento, CA 95814

Dear Mr. Morshed,

We are writing to express our strong support of California's High Speed Rail Project. We believe that the project will transform the state's transportation network into a much safer system that will serve our growing population for this century and the next in a way that can boost our economy while protecting our environment.

We recently reviewed the Northern Mountain Crossing Corridor Study you released concerning different possible routes from the Bay Area to the Central Valley. We all agree that the High Speed Train network should serve all three major cities: San Francisco, Oakland, and San Jose. However, upon reviewing the document it is clear that the Pacheco Pass alternative provides a better level of service with a greater number of trains stopping in San Francisco, Oakland and San Jose on a daily basis. The Pacheco Pass route is also the least damaging to our region's natural resources.

In order to connect the Bay Area to the Central Valley using an alternative option, the Altamont Pass, would require building a new high level bridge over the San Francisco Bay. The Altamont Pass option would also require construction through the Don Edwards Wildlife Refuge with additional impacts on the San Francisco Bay and Palo Alto shore of the Bay. This alone is a good enough reason in our opinion to reject the Altamont Pass outright. The impact the Altamont Pass would have on the environment could well make us rethink our support of any federal funding for the project.

We believe there is sufficient and compelling data to determine that the Pacheco Pass is the best option for the High Speed Train to serve the Bay Area. We thank you for your consideration and will continue to follow the issue closely.

Sincerely,

Zoe Lofgren
Michael Honda
Anna Eshoo
Sam Farr
Tom Lantos

So I don't know what Eshoo is talking about when she expressed surprise about the routing choices. True, Eshoo did not come off last night as a pro-Altamont person. Instead she came off as someone who really didn't understand some of the key project details. I hope she had some private meetings with Caltrain and CHSRA staff before the town hall, and that the town hall wasn't her first encounter with some of these issues.

Eshoo did have some other very good points, including the need for the CHSRA to improve its outreach. But if I'm a Peninsula resident, I'd be somewhat annoyed and troubled that my Congressional rep gave off an impression that she hadn't been paying attention to the details 10-year long development of a project that would bring significant change (for the better) to my region.

Two of the panelists were Caltrain staff - executive director Mike Scanlon and project advisor Bob Doty. Both of them were very, very impressive. Scanlon showed he clearly understands the need for the project as well as the locals' concerns. He emphasized that this is about survival for Caltrain, and that without electrification, Caltrain may not be able to continue operations. Caltrain needs partners to do the electrification, which will dramatically cut their costs. The state of California is no longer able to be that partner. So Caltrain needs CHSRA and its federal funding.

I don't quite think the Peninsula NIMBYs understood this point (and they would probably refuse to accept it even if they did). Their vehement opposition to the HSR project could well destroy Caltrain. These towns are already choked with traffic as it is, including Menlo Park. They desperately need Caltrain to not only stay, but to improve.

Bob Doty was another very impressive speaker. He has project management experience on HSR projects around the world, from the Channel Tunnel to Korea. Like Scanlon he was able to give quick and direct answers to questions, connecting with the audience even when the audience didn't want to hear what he had to say. Doty reminded the audience that tunneling is an extremely complex and difficult undertaking, that the decision to do it is not nearly as simply as the NIMBYs have made it out to be.

I would love for Doty to wind up with a major position at the CHSRA. He has the expertise and the credibility to help provide the kind of leadership that the project needs. UPDATE: According to Clem, Doty is already working for the CHSRA:

Bob Doty is already working for the CHSRA. He reports 50% to Mike Scanlon (Caltrain) and 50% to Mehdi Morshed (HSR), in a dual-reporting arrangement initiated by the MOU between the two agencies.

Wonderful news. Back to the original post...

Mehdi Morshed and Dominic Spaethling represented the CHSRA. Spaethling didn't get many occasions to add comments, though he did a good job of explaining the upcoming public interaction process.

Morshed was on the hot seat most of the night. His performance was mixed. It's worth keeping in mind that Morshed is not a public speaker by training - he's a project engineer. Morshed acknowledged that he's been getting some help on public outreach, and he did his best to answer questions directly. Most of the time he did this well, even if his more determined opponents in the audience refused to accept his answers.

One example is a question a self-described Palo Alto NIMBY asked about the business plan. This question was highly misleading and was a clear attempt to sow disinformation. She asked whether the CHSRA was hiring a PR consultant to write the new business plan. Her implication was that the business plan would be a dishonest product full of spin and devoid of fact.

But as Morshed explained, that's not actually the case. The Authority is hiring a PR firm to design the final publication of the business plan - the typesetting, the pictures, the printing. NONE of the content will be produced by the PR team - that comes from the financial and project contractors who rightly have the skills and knowledge to produce that information.

It's not at all unusual for that arrangement to exist, whether it's a private or a public sector business plan in question. You want someone who knows PR to ensure that the plan is readable. The only reason anyone would make an issue out of this is if you wanted to undermine the public's confidence in the CHSRA.

Morshed did less well when asked about the tunnel. He tried to reassure people that it would be given a fair hearing, but he may have gone too far in that by saying that tunnel costs "would be the last thing considered" when looking at a tunnel. Obviously it needs to be as much a factor in the choice as anything else - the CHSRA needs to ensure that it is going to build a cost-effective system. I understand Morshed's dilemma here, but the CHSRA needs to make it clear to Peninsula residents that unless they are planning to pay for the tunnel themselves, it is not appropriate for the CHSRA to be reckless with public funds.

Overall, I don't think the town hall changed any minds. These things rarely do. Especially when there is a loud group of people who have already decided to believe that numerous myths are actually facts - and that if you point out that they aren't facts, the person who believed it will become indignant at the person doing the debunking.

In that way the HSR debate resembles the health care debate in many ways. Just as "death panels" and "socialized medicine" started to dominate the conversation around health care despite there not being any evidence to support those claims, we now have arguments about a "Berlin Wall" and people convinced that numerous houses will be lost even though a cursory glance at the ROW shows that takings will be very, very, very few in number (especially in the Atherton-Menlo Park-Palo Alto area).

What the town hall also showed is how difficult it has become to focus on the big picture. To their credit, Eshoo and Scanlon both pointed to the need for sustainable mass transportation, and Scanlon in particular understood that the 20th century model of transportation, relying on freeways, was no longer viable. The Peninsula was built on the railroad. It's time to give that railroad an upgrade.

The Peninsula needs political leadership that is determined to build HSR, and determined to build it right. My question of the night was oriented toward that very matter. I wanted to hear that those in attendance, Eshoo in particular, would see to it that critics of the HSR project would not be allowed to overturn the will of the voters, that HSR would be built in a way that was cost effective. Eshoo took issue with my claims about "HSR critics" and said that everyone in the room wanted HSR built, the question was instead about whether or not it should happen.

I don't think that is accurate. Judging from the questions Eshoo herself read, there were a lot of people who still questioned the basic premise of HSR. A clear statement that "this WILL be built and it will be built the right way" would have gone a long way toward pushing everyone toward constructive solutions. Instead I'll have to be content with Eshoo's claim that there are no HSR opponents. I'm going to hold her and the Peninsula to that claim. You too, Morris!

Initial Ruling in Atherton v. CHSRA

As I wait here in Menlo Park for the HSR town hall to get underway, we have a ruling in the frivolous lawsuit Menlo Park, Atherton, and the PCL filed against the CHSRA. It's a mixed bag for everyone - the judge ruled that most of the Federal EIR on the Pacheco alignment was sound and that most of the petitioners' claims about it were "without merit."

But there were three specific points that the judge DID rule had merit:

1. EIR claim that vibration from tracks can be mitigated to a "less than significant level" is "not supported by substantial evidence"

2. EIR inadequately described land use impacts from HSR (though the judge did throw out the arguments that HSR would produce sprawl)

3. EIR needed to have been "recirculated" based on Union Pacific's refusal to share ROW in the San Jose-Gilroy corridor area.

See the ruling for yourself:

athertonvchsra

The outcome is that the "writ of mandate" the petitioners sought is granted. In practice this is likely to mean the EIR will have to be revisited to consider the three points above. Other points that the court rejected, including the argument that US-101 and I-280 needed to be considered, or that Altamont itself needs to be reconsidered, do not appear to be reopened by this ruling.

More as it develops.

Frivolous Lawsuits, Part 2

As was expected, Atherton resident Russell Peterson filed his lawsuit against Caltrain and the CHSRA today in San Mateo County Superior Court. The link includes a picture of the happy family filing the suit, taken by proud papa Morris Brown.

There is a good debate going on in the comments to recent post about whether Peterson has standing to file a lawsuit based on a contract between the Peninsula Corridor Joint Powers Board and the Union Pacific Railroad. Although I am not a lawyer, it seems that Peterson has an uphill battle ahead of him.

The conspicuous absence here is, of course, UP itself. It would be a sign of a major decline in power and in fortunes if one of the nation's largest railroads was reduced to letting some NIMBY sue on their behalf. UP would have no trouble going into court if they felt it necessary to protect their interests.

Instead, as Quentin Kopp claims, UP prefers to work with the passenger rail agencies:

Judge Quentin Kopp, a member of the rail authority's board, bristled at that suggestion.

"Mike Brady apparently worries about Union Pacific, which itself manifestly refuses to join in his frivolous suit," Judge Kopp said. "To the contrary, Union Pacific representatives have in the last 30 days met with an authority member and the governor, as well as authority staff, on the subject of right of way use."

In response to a request for an interview, Caltrain said in a statement that "nothing has been done that would violate" Union Pacific's rights.

Now, Kopp's quote is vague, and he doesn't indicate what the content or the outcome of those meetings have been. But it is telling that UP doesn't see a need to go to court. Peterson is making one hell of a longshot bid here, a desperate attempt to try and stop the HSR project dead in its tracks.

The Almanac article doesn't report Clem's insight that the Caltrain/UP agreement language seems to indicate Caltrain, not UP, holds the cards here. But that seems par for the course for the Almanac, which has never really indicated to its readers that there is significant support for HSR in the area, or that the NIMBY claims rest on very weak ground.

The Almanac does speculate about how a tunnel might actually work to UP's advantage:

On the issue that looms largest in the minds of locals — whether the rail system would run underground, or on a berm — Peninsula residents and Union Pacific might find some common ground, Mr. Brady said.

For instance, running Caltrain and high-speed rail tracks through an underground tunnel, with Union Pacific freight running above ground, could be a win-win for both locals and the railroad giant, he said. Union Pacific wouldn't have to share the above-ground tracks, enabling it to run freight trains during the day. And Peninsula cities wouldn't have to confront a 15-foot-high berm bisecting their communities.

Perhaps Union Pacific would make the tunnel option, thought in many quarters to be prohibitively expensive, a condition for its consent to the high-speed rail system.

I would be very skeptical of this. If a tunnel is built, then there will be enormous pressure put on UP by the local governments to stop the freight hauling. The at-grade tracks will become seen as an anachronistic eyesore and the cities will salivate over the possibility of developing that land, given its prime location on the Peninsula. Tunnel proposals in several cities, such as Palo Alto, rely on selling the air rights over a tunnel to developers in order to help pay for the tunnel.

Surely Union Pacific knows this, and that is one reason why they have preferred to confer with the CHSRA and Caltrain on an above-grade solution that would preserve freight trains for quite some time along the Peninsula corridor. Peterson and his pals can try and use UP for their own purposes, but it seems clear to me that this frivolous lawsuit is going to fall on its face even more quickly than the Menlo Park/Atherton/PCL/Tolmach suit over Pacheco.

Another Peninsula NIMBY Lawsuit

Clem has the scoop over on his blog about a planned lawsuit from an Atherton resident opposed to HSR that argues Union Pacific's consent must be given before the HSR project can proceed. From a Palo Alto Daily Post article:

Atherton resident Russell Peterson said yesterday he will file a lawsuit that will attempt to stop the state High Speed Rail Authority from starting any construction without the full approval of the Union Pacific Railroad....

Attorney Mike Brady, a Menlo Park resident representing Peterson, said the suit will ask a judge to require all plans for the bullet train to receive Union Pacific approval before construction begins.

As Clem lays out, this stems from Section 2.7 of the agreement between Caltrain and the UPRR, which seems to indicate that UP has to give its consent before any intercity trains can use the tracks. It is this clause that Peterson is using as the basis of his suit. I would be surprised if a judge finds Peterson has standing to sue using this agreement as a basis - wouldn't that be UP's place to decide whether or not to uphold their contractual agreement?

But as Clem found, there are other parts of the agreement that suggest Caltrain actually holds the cards here:

8.3.(c) In the event that Owner demonstrates a reasonably certain need to commence construction on all or substantially all the length of the Joint Facilities (including User's Cahill/Lick Line) of a transportation system that is a significant change in the method of delivery of Commuter Service which would be incompatible with Freight Service on the Joint Facilities (other than User's Cahill/Lick Line), Owner may, at its sole cost and expense, file no sooner than nine months prior to the commencement of such construction for permission from the ICC to abandon the Freight Service over the portion of the Join Facilities (excluding User's Cahill/Lick Line) upon which the construction is to occur. User shall not object to or oppose such a filing; however, it shall be allowed to participate in the abandonment proceedings.

Clem's interpretation is that the Caltrain/HSR project qualifies under this provision, although both Caltrain and the CHSRA have preferred to work with UP instead of against them. And that makes sense to me.

Peterson's suit will probably not go anywhere, but it does raise the issue of UP, its trackage rights, and how this affects Peninsula HSR planning. As Rafael has pointed out on several occasions, the tunnel that Peninsula NIMBYs prefer for the Caltrain/HSR corridor would almost certainly prevent freight trains from continuing to use the route.

Although it is theoretically possible that a tunnel could be built south of Redwood City and the Dumbarton rail bridge rehabbed to allow the UP freight hauler to continue to use the tracks, no money has been identified for this option, nor has it been seriously discussed. It's also worth noting that this would do nothing to help the cities further up the Peninsula, like Burlingame and San Mateo, that have also been calling for a tunnel. (Of course, I am quite confident that if Atherton, Menlo Park and Palo Alto felt they could solve their own problems by screwing the other Peninsula cities, they would gladly do so.)

If UP wants to continue running freight along the route, they are best off with an above-grade solution, and one has to assume they are quite well aware of this. Caltrain and the CHSRA are designing the route with UP's needs in mind. So why would UP have any interest in suing? No wonder a Peninsula NIMBY has to go it alone.

The Multi-Pronged Attack on California HSR

Last year this blog led the fight against the staggering amounts of misinformation put out by opponents of mass transit in their effort to defeat Proposition 1A. Even though these opponents were frequently given room to spout their misleading claims in TV and print reports around the state, whereas pro-HSR forces rarely ever got that opportunity, we won the battle. Californians rejected the arguments of the HSR deniers, the people who tried to argue against the evidence that high speed rail would be a financial disaster or that it wouldn't work in California or that people would never ride the trains. The voters showed that they understood the value and need for sustainable transportation, for economic recovery, for giving Californians an alternative to soaring oil prices.

That was the easy part.

2009 has seen a different and much more challenging battle taking shape. The Reason Foundation is still out their with their talking points, but few are listening. Instead most HSR deniers, like Morris Brown, have shifted tactics. Instead of arguing against passenger rail - a losing argument in California - they are trying to play on the environmental concerns of Bay Area residents. In order to undermine high speed rail, which will be one of the most environmentally beneficial projects this state has ever seen, they have joined with misguided environmentalists to try and block the progress of California high speed rail by claiming the project as planned will harm the environment.

Environmentalists have made a deal with the devil (so to speak) and allied with people who are fundamentally opposed to high speed rail. The environmentalists in question - particularly those from the Planning and Conservation League - apparently believe that they can use the HSR deniers for their own purposes without enabling the deniers' broader attack on the HSR project. In this the environmentalists are very, very wrong. They are jeopardizing the viability of the project as a whole, are placing a parochial and small concern above the concept, and are enabling anti-environment, anti-rail arguments in order to achieve their goals.

Californians rightly want to protect their environment. They rightly want big infrastructure projects to be built affordably and properly. And even though the environmental/NIMBY alliance ultimately seeks none of that - in fact, they are pursuing methods that jeopardize those values - they are increasingly effective at spreading their misleading claims among both the public and the state legislature.

As longtime blog readers know, these criticisms of mine are not new. What is new is that the Planning and Conservation League and the BayRail Alliance, two normally progressive organizations that support environmental and mass transit projects, have allied with the vehemently anti-HSR TRANSDEF, the "Cal Rail Foundation" (and its three members), and the cities of Menlo Park and Atherton to launch a deeply misleading attack on the high speed rail project.

The centerpiece of the attack is a new website: HSR: Let's Do It Right. The site is chock full of misleading statements, and embraces messaging that will ultimately and fundamentally undermine the HSR project they claim to support.

Before taking an in-depth look at the flaws of this site, let's lay out the landscape of HSR opposition in California:

Peninsula NIMBYs. Concentrated in the Menlo Park/Atherton/Palo Alto area, these are a quite small but vocal group of well-off homeowners who are adamantly opposed to building a grade-separated railroad for Caltrain and HSR, despite the numerous safety and environmental benefits of doing so. They've been convinced that a tunnel is a better solution, but have not identified any funding source for such a ridiculously expensive solution. They have no organization, but have instead brought on board the cities of Menlo Park, Atherton, and Palo Alto to their cause.

HSR deniers. Contrary to those who criticize the use of the term, this refers to a very distinct group of people who deny the proven benefits of high speed rail and want to kill the project outright. They are called "deniers" as an analogue to global warming deniers, based on the HSR deniers' repeated use of claims about HSR's supposed lack of financial viability, its supposed inability to meet projected ridership, and/or its supposed lack of environmental benefit. They tend to be ideologically opposed to government spending and to passenger rail projects. Not all HSR opponents are HSR deniers. But HSR deniers have had a lot of success in allying with more mainstream and respectable groups to advance their cause - specifically, the NIMBYs. HSR deniers have achieved significant gains by convincing some Peninsula residents that above-grade tracks will be a horrible city-killing disaster and that a tunnel is a better alternative - despite the fact that a tunnel is too expensive to ever become reality. HSR deniers hope that NIMBYs will provide the political power they themselves lack, and kill the project when it becomes clear that there is no viable alternative to grade-separating the Caltrain corridor.

Parochial environmentalists. The state's main environmental organizations, like the Sierra Club, strongly embraced high speed rail AND worked to ensure Prop 1A was as environmentally strong as possible (particularly by writing a ban on a Los Banos station into Prop 1A). They recognized that HSR will be a revolutionary shift in California infrastructure in favor of truly sustainable transportation that helps fight global warming, reduces pollution, and grows mass transit while shrinking the ranks of automobile commuters. But a small group of environmentalists have chosen to reject these broad benefits in a fit of pique about the choice of the Pacheco Pass alignment. The Planning and Conservation League is the biggest offender here, apparently convinced that the Pacheco alignment is so horrible that it is worth risking the entire HSR project to block it. To do so they are now allying with the NIMBYs and HSR deniers.

Parochial state legislators. California's Legislature is a broken institution totally incapable of governing this state in a time of crisis. One reason for this is term limits, which encourage legislators to ignore long-term planning and focus on their own careers. This incentivizes a focus on their own districts at the expense of the state's needs. As it relates to HSR, it enables ideological opponents of HSR like Senator Roy Ashburn, a genuine HSR denier, to try and tie down the project through burdensome and unnecessary oversight rules. It also enables people who don't care about the project's stated purpose of providing sustainable intercity transit to try and use the Prop 1A money to fund pet projects in their own backyards, like Senator Alan Lowenthal. NIMBYs, HSR deniers and environmentalists are allying with both Ashburn and Lowenthal to try and kill the HSR project by running it aground on the shoals of the legislature.

All four of these groups are represented on the HSR: Let's Do It Right site. The website is an incoherent jumble of anti-HSR claims that are sometimes mutually contradictory, but together represent a formidable threat to high speed rail.

Let's have a look at some examples.

Lying About Altamont/Pacheco

The main intent of the site is to rally the public to oppose the Pacheco alignment and force its abandonment in favor of Altamont - despite the fact that the decision for Pacheco was made through a legitimate process a year ago, and despite the fact that it was ratified by voters at the November 2008 election. Their Why Altamont? page consists of this extremely dishonest graphic:



This is pretty ridiculous stuff. The notion of "fewer impacts on communities" is only true if you don't consider Fremont, Pleasanton, Livermore and Tracy as communities. As I'll explain in a moment the site is full of "concern" for the "livable communities" on the Peninsula that would be harmed by HSR, but no such concern is offered here for the East Bay cities along the proposed Altamont route. There are about the same impacts on communities in the Altamont alignment - but those communities do not count, are not relevant, to the PCL and the other backers of this website.

It is true that expanding passenger rail along the Altamont corridor would help ease congestion. Which is why Prop 1A created a high speed corridor along the Altamont Pass and directs the CHSRA to spend money upgrading it for the purpose of easing congestion. But you wouldn't know that from the site or this graphic.

Sure, a shift from the Pacheco to the Altamont alignment might serve more East Bay residents. But it would come at the expense of about the same number of people in Santa Clara County and the Monterey Bay Area. Given that San José is the state's third largest city and one of the state's key economic centers, you'd think that it would have a pretty strong argument for being included on the HSR line. But you won't hear that argument on the website.

The claim of "$2 billion saved" is not sourced or proved. Given the support for Peninsula NIMBYs, the site's authors are in no position to make claims about saving money.

As to the wilderness area, this is is complete bullshit. The graphic is designed to mislead people into thinking the whole wilderness as shown on the map is under threat from HSR. It isn't. The tracks will run close to the existing Highway 152 corridor, and will go underneath Pacheco Pass State Park in a tunnel - which is conveniently not mentioned anywhere in this graphic or on the site.

Another lie is the "no sprawl effect" claim made. The graphic labels "land speculation" as possible in the Los Banos area, not informing readers that a station at Los Banos was specifically outlawed when Prop 1A passed. No station is planned on the western side of the Pacheco Pass. There IS a station planned at Gilroy, but that alone doesn't induce sprawl - unless the site's supporters think Caltrain service to Gilroy does that already. South County has its sprawl issues, but those already exist without HSR, and residents of Gilroy have already shown their willingness to oppose sprawl (fighting a planned Wal-Mart supercenter, for example).

Embracing NIMBYism

Environmentalists who actually care about doing something to stop global warming should be extremely wary before getting into bed with NIMBYs. NIMBYs around the country have fought wind turbines, solar power generators, and the transmission lines needed to bring clean, sustainable, renewable power to cities that need them. Solutions designed to protect our environment and arrest the pace of global warming will necessarily impact communities in ways some won't like. We have to weigh their objections against the dire and pressing need to act to reduce pollution and reduce carbon emissions.

The environmentalists who put the website together have thrown all such caution to the win. Desperate to stop the Altamont alignment, they are busy fueling misleading NIMBY claims that WILL get used elsewhere in the state to attack the HSR project, presumably in places where the PCL (among others) claims to support HSR - like Pleasanton.

The site includes a paged titled Visualize What Disaster Looks Like. It's the old misleading "Berlin Wall" images from Menlo Park that we debunked back in March.

But that's not the most insane and crazy element of the unholy alliance between the PCL and the NIMBYs. On the contact page, which includes the list of organizations sponsoring the site, in bright red capital letters is written the statement "REMEMBER: THE CITY YOU SAVE MAY BE YOUR OWN!"

Umm...wow. Is that a message people who supposedly support the HSR project, as the PCL and the BayRail Alliance claim, want to spread? By claiming that HSR will destroy cities, they're inviting open season on the HSR project from other cities, including those along the Altamont alignment. Does the PCL want Fresno to sue? Do they want Fullerton to sue? This is madness.

Allying With Legislative Enemies

The final lunatic aspect of the site I want to examine is their alliance with a broken legislature and in particular with legislators whose opposition to high speed rail has frequently been demonstrated. The site encourages the broken legislature to exert "oversight despite the fact that the legislature is incapable of effectively doing so until that institution is repaired and restored to functionality. There is no better way to undermine the HSR project than to make it dependent on a legislature that can no longer effectively govern the state.

Especially when the site specifically calls out for praise known HSR opponents. One of these is Senator Roy Ashburn, who tried to postpone the Prop 1A vote beyond 2008. Here's what the site has to say about Ashburn, listing the members of the Senate Appropriations Committee (emphasis mine):

Below is a list of Senators on the Senate Appropriations Committee. Note that Senators Simitian, Yee, Cedillo, Corbett, and Oropeza, along with Senator Ashburn, are on both Committees. Senator Ashburn has been very sympathetic:

Perhaps the site would like to explain WHY Ashburn has been sympathetic? That he has worked hard in the last year or so to throw as many roadblocks and obstacles in the path of HSR as he can?

Although Alan Lowenthal is not singled out for praise (yet) on the site, he is one of the leading figures in the legislature trying to use "oversight" to destroy the project. This blog has frequently demonstrated Lowenthal's desire to chop the statewide project into disconnected pieces, to create a glorified commuter rail benefiting Southern California and presumably the Bay Area (although the alliance with Peninsula NIMBYs jeopardizes that).

There are more flaws with the website in question, but I've gone on long enough as is. The above should be enough to make it clear that the folks behind that site are not interested in telling Californians the truth about the high speed rail project, and certainly aren't interested in ensuring that HSR actually gets built.

In fact, as I will demonstrate tomorrow, the Planning and Conservation League has taken a leading role in trying to undermine California's application for federal HSR stimulus funds, thus jeopardizing the financial viability of the entire project. There's much, much more to come.

Why The CHSRA Was Right To Reject The Settlement

by Robert Cruickshank

Reports of the CHSRA's rejection of a settlement offer put forward by Menlo Park, Atherton, the Planning and Conservation League, and several other unnamed organizations have gotten some notice in the comments to the previous post, but it deserves its own entry.

Especially so I can explain why this was the right thing to do for not just the CHSRA, but the HSR project.

The California High Speed Rail Authority has rejected a settlement offer that Menlo Park, Atherton and environmental groups made in a lawsuit challenging the decision to run bullet trains through the Peninsula instead of the East Bay, an attorney for the cities said.

The offer, which the authority rejected in a closed session meeting July 2, would have required the agency to consider running trains through Altamont Pass, said Stuart Flashman, an attorney for the petitioners. Altamont Pass and Pacheco Pass were the two finalists for the route, and the authority selected Pacheco in 2007.

"What we are proposing is we would agree to dismiss the case if you would agree at the project level to restudy one Altamont alternative," Flashman said Thursday. "You throw this out now, and it may not come back. They decided they would just roll the dice."

Why should the CHSRA believe this? Although the specific parties to a settlement would be bound by its terms, others would not. Flashman has done a lot of work to sow doubt about the Pacheco choice. Menlo Park and Atherton have residents who would still be free to file their own lawsuits - suits that are almost guaranteed to occur should the CHSRA decide on anything other than a no-build option for the Peninsula.

More importantly, it would open the door to revisiting route choices by what is essentially blackmail. Route selection and design choices must be driven by what is best for the HSR project.

There's more:

Flashman noted that the authority did not make a counter offer.

Sacramento County Superior Court Judge Michael Kenny held a five-hour hearing in the case May 29 and must make a ruling by the end of August, Flashman said. In the meantime, he must go through about 35,000 pages of documents.

"I felt, and talking with my clients they also felt, that this would have been an opportune time to try and settle," Flashman said. "Essentially we were in a situation where everybody could form their opinions about who was likely to win."

Flashman is parsing his words carefully here, but this is as clear an admission of defeat as we'll probably ever get from him and his crew. One has to assume the CHSRA recognized this as well and therefore felt no reason to settle. A court victory for the Authority would also do much to discourage other frivolous lawsuits.

Still, would it have been good for the CHSRA to offer a settlement anyway? Especially since it's possible that refusing to do so might reinforce the incorrect view among the Peninsula NIMBYs that the CHSRA is unaccountable and hostile?

I don't believe it would have been, since I'm not seeing anything the CHSRA could have offered that would be better than a court victory. As I noted above, no settlement could stop others in Menlo Park and Atherton - or other cities - from suing. Flashman et. al. want to force reconsideration of the Altamont corridor, but that ship has long since sailed, especially with CA voters ratifying the plan to use the Altamont corridor as a high speed corridor anyway.

I still await the final verdict, in favor of the HSR project and its fair process, against NIMBYs and those so-called environmentalists who prioritize small-time parochial concerns over the much greater benefits to the environment of actually building HSR.

Tuesday Open Thread

It´s mid-afternoon here on the Algarve in Portugal. Beautiful weather, cool clear water, and a nice breeze making the last week of my visit here quite enjoyable. So what am I doing online? Other than being a total nerd, and taking a kind of siesta, I´m catching up on HSR stuff. Thanks so much to Rafael for his ongoing work in keeping the blog updated.

Some quick HSR related items:

• AB 153 by Fiona Ma will be heard in the Assembly Transportation and Housing Committee today - the bill would clarify the eminent domain power of the CHSRA, to emphasize the agency does indeed have such power.



• Apologies if this has been discussed before - it is a few days old - but the Mercury News has an article on two Menlo Park/Atherton moms who have organized to fundraise for the anti-HSR lawsuit, having collected over $30,000 (note: the original version of this post misstated the sum as $300,000) toward the legal bills. I´m really pleased to see that in this economic crisis there are people with that much money to waste, especially mothers who apparently don´t have to worry about the severe attacks on public education taking place in this state. Wouldn´t $30,000 be rather useful to local schools or to help feed the hungry?!

Better Modeling of the Above-Grade Peninsula Caltrain/HSR Project

One of the most unfortunate parts of the debate on the Caltrain/HSR project on the Peninsula is the lack of accurate information. NIMBYs and other project opponents have already convinced many people that an above-grade solution would be a sort of "Berlin Wall" through the city, and Jim McFall's video reinforces that errant conclusion. The problem is that McFall's video has been the only attempt to visualize what the corridor would look like with above-grade tracks.

Until now.

Mike, who brought us the point by point refutation of the notorious Cox-Vranich HSR denier report last year, is back to inject some sense and fact into the debate over HSR. He has put together a YouTube video of simulations of the Churchill Avenue crossing in Palo Alto - including the existing at-grade model, the proposed CHSRA above-grade solution, and the flawed McFall model. Mike added authentic sounds of the crossing - a recording of Caltrain crossing at-grade, and of the Acela. Here's the video:



You can see clearly that McFall's model is misleading on several counts. He has the dimensions all wrong - the structure is higher in McFall's model than is actually proposed, and the catenary poles are too densely packed together. More importantly, McFall's video doesn't include existing landscaping that would mitigate much of the visual impact of an above-grade solution. There are no trees in the McFall video, whereas Mike's video makes clear that trees are indeed part of the solution.

The results of misleading misinformation on the Caltrain/HSR project (such as the McFall video) could be seen in Atherton on Thursday night, where a crowd came to speak in favor of the city's avowed "tunnel or nothing" stance:

Duncan Jones, Atherton's public works director, laid out the town's case for both joining the lawsuit and still participating in the high-speed rail planning process. "We need to hedge our bets," he said.

Mr. Jones, a former rail consultant, said that the town's fallback position -- if the route doesn't change, put the high-speed trains in a tunnel, rather than on a raised berm -- isn't as far-fetched as it sounds.

The rail corridor in Atherton is lined by expensive homes, and widening it to accommodate high-speed rail would require purchasing swaths of private property.

"When (the authority) looks at all of the costs and impacts, they may find out that going underground may be cheaper," Mr. Jones said.

Jones's comments are barely credible. I cannot imagine that buying a few strips of backyard will cost a billion dollars - which would be the minimum estimate for tunneling through Atherton, even with a cut and cover model. The San Jose Mercury News article on the meeting noted that Hatch Mott MacDonald executives estimated a tunnel through Atherton would cost:

A tunnel on the Peninsula would likely follow the same model as the San Jose BART extension, Townsend said, because both areas have soft ground. A high-speed rail tunnel would likely cost somewhere between $100 million to $250 million per mile, compared to less than $100 million for an at-grade system, he said.

I have a difficult time imagining that the cost of eminent domain for a few backyards would be $100 million. I am also skeptical of the lowball cost of an HSR tunnel that Townsend offered, but even if these estimates are accurate, it represents a doubling of the cost of building on the Peninsula.

Such is the fact-free nature of the debate on the Peninsula, unfortunately. Let's hope Mike's more accurate animation gets spread far and wide, and that people on the Peninsula can actually make informed choices about the Caltrain/HSR project.

Two Thursday Meetings

Tomorrow, Thursday May 28th, will see two meetings on the high speed rail project. I can't attend either of them, but hopefully you can!

First up is an FRA meeting in Rancho Cordova (Sacramento suburb) from 1PM to 4:30PM:

FRA’s High-Speed Intercity Passenger Rail Workshops
Start May 20, To Tour Nation

Dear Stakeholders:

As we begin to implement President Obama’s vision for developing a cohesive national intercity and high-speed passenger rail network. This vision was set forth in FRA’s Strategic Plan for High-Speed Rail (HSR) announced by President Obama, Vice President Biden, and U.S. Transportation Secretary LaHood, and sent to Congress that same day on April 16, 2009.

The workshops will be led by FRA Deputy Administrator Karen Rae or myself. Through these workshops, FRA is reaching out to the rail community in seven regions across the country to seek your input on the Interim Guidance we are required to issue on or before June 17, 2009, for the $8 billion in grant funds provided by the American Recovery and Reinvestment Act of 2009 (ARRA) for the high-speed rail corridors program, intercity passenger rail grants, and congestion grants. The workshops will enable FRA to discuss the HSR Strategic Plan with key stakeholders such as state departments of transportation, regional planning authorities, metropolitan leaders, associations and labor groups (under the ARRA, these workshops exclude the participation of lobbyists).

We seek your input not only to provide us with your regional vision of high-speed and intercity rail networks, but to enable stakeholders to focus on the critical factors that will make this program a success for generations to come.

The goal of the workshop is to take the first steps toward determining how we can best partner together to make the Strategic Plan a reality. During the workshop, you will have an opportunity to share experiences, raise concerns, provide insights, and make recommendations on several key issues and questions, as well as hear those of your colleagues and representatives from a regional perspective. The workshop schedule will include the following:

Introduction 10 minutes
Overview of FRA strategic plan and next steps 30 minutes
Amtrak presentation 15 minutes
Q & A 35 minutes
Regional presentation 30 minutes
Break 15 minutes
Working group break-out 1 hour
Wrap-up 15 minutes

The workshops will be held 1:00 p.m. 4:30 p.m. on the following dates and locations:

California Corridor: Sacramento May 28; Sacramento Marriott Rancho Cordova, 11211 Point East Drive, Rancho Cordova, CA 95742

In addition to participating in the workshop, I am inviting you and other members of the public to submit written comments to FRA by June 5, 2009, on issues that should be addressed in the Interim Guidance and specific recommendations on the criteria to be used in evaluating grant applications. FRA has created a public docket (Docket No. FRA-2009-0045) for the receipt of written comments. Please visit FRA’s Web site at: www.fra.dot.gov/us/content/2236 for information regarding the various ways in which you may submit comments to the public docket.

Please note, additional sessions to aid states with the mechanics of applying for ARRA funds will be scheduled after these workshops, as will informational sessions for industry, labor, intergovernmental and other interested parties.

I look forward to working with you over the coming months to ensure the grant programs funded by ARRA are implemented successfully.

Sincerely,
Joseph C. Szabo
Administrator
The Federal Railroad Administration

The other meeting is in Atherton at 7PM:

The meeting is open to the public, and will be held at the Jennings Pavilion in Holbrook-Palmer Park, 150 Watkins Ave. in Atherton.
Atherton officials, and many of the town's residents, have grave worries about the local effects of the state plan to run high-speed trains along the Caltrain corridor that bisects the town. If the high-speed rail line can't be rerouted to avoid the town, Atherton officials would rather have the train run through a trench or tunnel, instead of on an elevated berm.
The scheduled speakers at the meeting are: Mike Garvey and John Litvinger, public outreach consultants working for the California High Speed Rail Authority; John Townsend, executive vice president of Hatch Mott Macdonald, a leading tunnel-engineering and construction firm; Duncan Jones, Atherton's public works director; Gary Patton, attorney and former director of the Planning and Conservation League; and Jim McFall, who will present a digital model of elevated high-speed rail tracks going through Palo Alto.

I'm really curious about this "digital model" that will be shown. Is it going to be an accurate representation of what an elevated solution could look like, or is it going to be a biased depiction of some kind of Berlin Wall? I hope that the CHSRA has been able to generate some more accurate and realistic digital images of their own.

Update: Thanks to Clem in the comments who links to Jim McFall's video - videos that put the worst possible spin on this, making the HSR grade separation look like an Orange County freeway.

Additionally, I'm curious what the tunneling exec will have to say. Will he explain the price tag of a tunnel? Will Atherton residents have their checkbooks and credit cards ready to go to pay the multi-billion cost of such a tunnel? Only one way to find out - go to the meeting!

If anyone does attend, and wants to write up their impressions of the meeting(s), I'll be happy to post it here unedited.

How Does Redwood City Define HSR "Stakeholder"?

Redwood City has been one of the better local governments on the Peninsula when it comes to dealing with the HSR/Caltrain project, unwilling to follow Palo Alto, Menlo Park and Atherton down a NIMBY path of trying to impose unworkable changes onto the project, and certainly unwilling to threaten outright opposition to it. And yet Redwood City's staff are still capable of framing the debate in rather skewed terms.

Tonight the Redwood City Council is going to discuss a plan for public outreach (PDF) on the HSR/Caltrain project. It's nice to see a proactive approach to engaging city residents, rather than Palo Alto's quick cave to a small number of HSR critics.

In the comments on recent Peninsula-related posts here, there has been a robust discussion of NIMBYism, how to challenge it, whether it's a serious threat to the HSR project or is something we're giving too much attention to - the squeaky wheel getting the blog's grease. What the Redwood City plan suggests, though, is that the problem is with how the Peninsula cities define "stakeholders" in such a vital project. Redwood City's approach provides a too-narrow definition that excludes the most numerous group of stakeholders of all - the thousands of city residents whose lives will be improved, who will save money and time and be freed from the dangers of at-grade diesel trains by the HSR/Caltrain project.

(Note: it's not immediately clear to me if this is Redwood City's document or Caltrain's - I believe it's the city's, but even if it's Caltrain's the criticisms offered here still apply.)

Here's how the city's packet reads:

1. Overarching Principle: From a community relations standpoint, the development and implementation of the HSR/Caltrain electrification facilities must take place with profound attention to the interests of the surrounding communities, stakeholders, and sensitive audiences, offer an augmented level of community outreach, communication, and involvement, and minimize negative impacts and effects on the communities in which the project will operate.

Although that sounds reasonable, the way it's framed is setting HSR/Caltrain up to fail, even in Redwood City. The goal here shouldn't be to just "minimize negative impacts" - shouldn't we also be trying to "maximize positive impacts"? Of more concern is the list of proposed stakeholders:

2. Redwood City Stakeholders:
a. Property owners/residents/businesses within 1/2 mile of the alignment
b. Sequoia Station retailers
c. Boards and Commissions (Bike/Ped, Housing, Planning, Historic Resources)
d. Downtown Business Group
e. Chamber of Commerce
f. City staff
g. City elected officials
h. Supervisor Rose Jacobs Gibson
i. Assemblyman Ira Ruskin
j. Senator Joe Simitian
k. Neighborhood Associations
l. Redwood City Elementary School District
m. Faith communities within 1/2 mile of alignment
n. Advocates for a HSR station in Redwood City
o. Opponents of an HSR station in Redwood City

3. Sensitive/critical audiences
a. Residents and business within 1/4 mile of the alignment (particular attention to bilingual outreach)
b. Schools within 3/4 mile of the alignment
c. Motorists - in general
d. Caltrain users
e. Bicyclists/pedestrians

It's not that I object to the inclusion of specific groups or individuals here. Instead it's the premise, that privileges those next to the alignment at the exclusion of those who are not.

Don't other Redwood City residents deserve consideration? Even if they don't currently use Caltrain, but might use an electrified Caltrain or use HSR? Redwood City and Caltrain wouldn't be doing their job if they didn't find a way to do outreach to those near the line, but neither should they stop there. A full picture of the community's thoughts, and the fairest possible assessment, can only be gained if the city as a whole is involved.

It's not right that those nearest the line get more consideration. Everyone has to live with the effects of HSR/Caltrain, whether it's built or not. This is true of drivers, pedestrians, and so on. Yet we live in a state where our public review process, and our community outreach process, is skewed toward those who live near a proposed piece of infrastructure, often to the exclusion of everyone else.

In extreme cases, that would be good. When the Century Freeway (Interstate 105) was built, it destroyed numerous and entire neighborhoods. That's a classic case of where the interests of those most directly impacted by infrastructure should be emphasized. And yet when you're talking about rebuilding and improving an existing rail corridor, you're not talking about people losing homes, or whole neighborhoods being plowed under.

Redwood City's proposed public outreach plan is a good start. But for it to be an effective plan, it needs to cast a wider net, and ensure that the voices of the city's numerous HSR supporters are not unfairly excluded from the process, as they seem to have been next door in Menlo Park, Atherton, and Palo Alto.

Two Quick Peninsula Updates

1. Caltrain board approves MOU with CHSRA:

One last-minute change to the deal was the elimination of a controversial passage that indicated the bullet train would operate on a four-track alignment, assuming there typically would be two tracks for Caltrain and a pair for high-speed rail.

This was only "controversial" because Palo Alto insists on having veto power over the operations and basic needs of the system, which they have no right to claim. As others have pointed out in the comments, a four-track solution is still expected to be adopted. Personally I think Caltrain and the CHSRA should have kept that language, since NIMBYs cannot be appeased, as they immediately proved:

Palo Alto Council Member Pat Burt, echoing the concerns of other officials and residents, said the cities should have the right to partner with the state as well, not just Caltrain.

"The cities must be allowed to enter into this process in a substantive way," Burt said. "(The Caltrain board) is not designed as its first priority to preserve and protect the quality of life of the cities that the railway passes through."

Right. Their priority is to operate efficient passenger rail service. Burt's words are significant though for explaining what this is all about for him - preserving a 20th century model of urban life that is obsolete and not at all workable in the 21st century. He thinks Palo Alto can live in a kind of permanent 1995. Is this the kind of forward and progressive thinking Palo Alto wants to be known for?

Still, this is a welcome development that shows the high speed rail project is making important progress.

2. Court throws out Menlo Park's letter to CHSRA:

In August 2008, Menlo Park and Atherton joined a lawsuit against the rail authority. One of Menlo Park's arguments in joining the suit was that rail officials had not responded to their letter. Under law, the agency is required to respond to every letter it receives.

But in the March 27 ruling, Judge Michael Kenny said the city did not adequately prove that it had in fact sent the letter, and that it didn't do enough to make sure it had been received. Furthermore, after the release of the final environmental document but before it was certified, there was a 40-day window in which Menlo Park could have resent its letter, the judge said. The city apparently did not do so.

During the City Council's March 31 meeting, City Manager Glen Rojas said the plaintiffs' attorney did not think the exclusion of the city's letter would have much effect on the case, because similar arguments had been made by others, including the town of Atherton.

The article also has an interesting discussion of whether Menlo Park will reconsider its decision to sue. You'd think that in a time of financial crisis for virtually every city in the state, Menlo Park residents would prefer that their taxes pay for libraries and pothole repairs, not frivolous lawsuits against the CHSRA.

NIMBYs versus Realists on the Peninsula

After what had been a somewhat slow news week, yesterday brought a lot of HSR news, so you all will get two posts today instead of the usual one. I know, shocking! First up is an emerging split among Peninsula cities trying to draft a "Mayors Letter" to the California High Speed Rail Authority regarding the HSR project. Whereas Palo Alto appears to be moving inexorably toward outright HSR denial alongside Atherton, Menlo Park, San Mateo and Redwood City are resisting such destructive tactics.

The letter will apparently include:

The consortium's letter asks the authority to consider whisking its bullet trains through the Peninsula via tunnels, below-grade trenches and other non-disruptive options. The letter also requests the authority to evaluate a "hybrid" option in which the high-speed rail line would end at San Jose and become a Caltrain baby bullet express line north to San Francisco.

I don't know if the "non-disruptive" term comes from the letter itself or from a biased reporter, but anyone who thinks tunnels and trenches are "non-disruptive" is nuts. Even if the tunnel is bored there will be a lot of disruption in these communities due to the construction process.

It's also unfortunate to see those drafting this letter endorsing the anti-HSR concept of terminating trains at San José. It must be repeated that this is an extremely bad idea that will bleed the system of riders. Intercity travelers are NOT going to transfer to commuter trains at San José that do not have the same amenities, including luggage storage, that the HSR trains offer. Either the people drafting this letter do not know that, which calls into question their basic familiarity with the project, or they DO know this, in which case their letter should be seen as a deliberate attack on the project as a whole.

To make my position clear - it is perfectly justifiable for these cities to advocate for a tunnel. But it is not appropriate to suggest that the system be fatally compromised just because these cities are unhappy. That turns a legitimate disagreement into a desire to kill the entire system - a distinction that some cooler heads on the Peninsula recognize:

But opponents such as San Mateo and Redwood City fear being linked with cities such as Palo Alto, Menlo Park and Atherton, whose leaders are completely opposed to the train. Menlo Park and Atherton have sued the state to stop the rail from going through the Peninsula.

"Why would high-speed rail be open to an agreement with two cities that have filed a lawsuit against their ability to do what they're supposed to do," said Redwood City Mayor Rosanne Foust.

San Mateo Deputy Mayor John Lee agreed, saying, "I'm not going to go to a group that says, 'I hate high-speed rail.' "

Exactly. John Lee nails it here by seeing right through what leaders in Palo Alto, Menlo Park, and Atherton are trying to pull - using overwrought and often baseless concerns from a vocal minority to try and undermine the entire high speed rail project. San Mateo has not been silent about its own concerns, but alongside Redwood City they represent the realist faction on the Peninsula - people who genuinely want high speed rail to work for both the state and their communities.

In contrast, Palo Alto, Menlo Park and Atherton appear to be primarily motivated by classic NIMBYism - a stance taken usually by prosperous white homeowners that says they alone have veto power over any project that they do not like, even if it is tailored to their needs. This interpretation is bolstered by the fact that those three cities seem uninterested in actually giving a voice to all cities in the region:

A third group of Peninsula cities farther from the Caltrain tracks — such as Foster City, East Palo Alto and Los Altos — have had little discussion about the project and apparently will not be asked to join the group.

East Palo Alto is a racially diverse, working class community that may be located across the freeway from Palo Alto but is in a very different economic universe. They would benefit immensely from high speed rail, especially a station at Palo Alto. HSR and an upgraded Caltrain would reduce traffic on 101, and thus reducing pollution. It would help emancipate working-class residents from dependence on the automobile and the airplane. HSR would, in short, be a huge boon to a community that really needs it.

And yet Palo Alto doesn't want to invite them to their group. Why does this not surprise me?

HSR supporters have given Palo Alto numerous opportunities to advocate for this project in good faith. Unfortunately that city's leadership, which unanimously endorsed Prop 1A last year in full knowledge of how it would affect the community, is now siding with conservatives and HSR deniers against Californians and their less fortunate neighbors, against environmental improvement and efforts to fight global warming, and against mass transit.

Kudos to San Mateo and Redwood City for their more reasonable stance, and let's hope that their vision prevails over the regressive and reckless stance of some of their more privileged neighbors.

Later today: What's the future of the California High Speed Rail Authority?