Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed Rail Authority’s Revised Final Program EIR Analyzing Central Valley To San Francisco Bay Area Track Route

by Miller Starr Regalia
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While CEQA actions are statutorily designed as special proceedings with priority over other civil actions, and thus mandated to be heard and resolved expeditiously, when complex or controversial projects with dedicated opposition are involved this salutary statutory scheme sometimes goes off track. A prominent example is the ongoing CEQA challenge to the environmental review for the Central Valley to San Francisco route of the High-Speed Rail Project, which involves lawsuits that have stretched over parts of 7 years and are not yet concluded — although a recent appellate decision appears to have brought them a step closer to the driving of the final CEQA litigation spike.

In its published opinion filed July 24, 2014, the Third District Court of Appeal affirmed the trial court’s judgment in consolidated appeals and rejected additional challenges under CEQA brought by petitioner groups (including the Town of Atherton, City of Palo Alto, City of Menlo Park, Planning and Conservation League, and others) to the 2010 Revised Final Program EIR (RFPEIR) certified by the California High-Speed Rail Authority (Authority). The Authority certified the RFPEIR in connection with its approval – along with adoption of mitigation and a statement of overriding considerations – of the Pacheco Pass route (as opposed to the competing Altamont Pass route) for tracks connecting the Central Valley to the Bay Area.

The trial court found the RFPEIR, which was prepared in response to an earlier writ it had issued, still inadequately analyzed the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment; it thus denied the Authority’s request to discharge the writ and issued a supplemental peremptory writ ordering it to rescind the resolution certifying the RFPEIR. However, the court also rejected all of the Petitioner’s numerous other CEQA challenges made in both the context of the motion for discharge in the original action and in a separate CEQA action filed to challenge the RFPEIR.

Despite sending the Authority back to the drawing board again in the original action, the Petitioner groups were unhappy with their partial success, and they appealed in both actions. The Court of Appeal affirmed the trial court’s judgment in all respects, effectively putting the brakes on Petitioners’ CEQA litigation locomotive by rejecting all of their additional CEQA challenges to the RFPEIR on the merits.

As a preliminary matter, Petitioners’ state law CEQA claims were threatened with being permanently derailed on non-CEQA grounds when the Authority argued, for the first time after the appeal had been fully briefed and calendared for oral argument, that those claims were preempted under the federal Interstate Commerce Commission Termination Act (“ICCTA”; 49 U.S.C. § 701 et seq.) As deftly as a hobo leaping from a moving freight car, however, the Court of Appeal dodged the “complex, difficult, and controversial subject” of the broader ICCTA preemption issue in a 20-page analysis supporting its ultimate conclusion that “on the specific record before us it is clear that an exception to preemption, namely the market participation doctrine applies.” Thus, while the federally-created Surface Transportation Board (STB) broadly regulates interstate rail transportation – which the HST project will ultimately be an interconnected part of – and federal law normally broadly preempts all state or local regulation (whether “economic” or “environmental”) which burdens interstate rail transportation, the Court found that on the unique facts of the case before it the market participation exception applied and the Authority’s HST project was, indeed, subject to CEQA. It summarized its extensive analysis of the issue as follows:

Here, it is the sole responsibility of the state to determine the route of the HST, as well as to acquire the necessary property, and construct and operate the HST. Due to the state’s proprietary role with respect to the HST, as well as the Provisions of Proposition 1A (the voter-approved initiative bond measure to fund the HST) and the Authority’s established practice of complying with CEQA, the market participation doctrine applies.

Having thus decided that petitioners’ CEQA claims would be allowed to leave the station, the court proceeded to address them on their merits, making the following key point observations, and determinations:

  • The FRPEIR was a first-tier program EIR/EIS properly focusing on the broad policy choices ripe for decision, i.e., which network and alignment alternatives should connect the Bay Area to the Central Valley, at a broad and general conceptual level of detail; a second-tier EIR would in the future provide more detailed, site-specific impacts analysis in areas such as aesthetics, visual resources, noise and vibration.
  • Accordingly, the RFPEIR properly responded to comments that vertical alignments (such as aerial viaducts, raised berms and elevated trains) would pose problems to residential neighborhoods by pointing out that the program did not select a vertical alignment, and that such issues would be evaluated and refined as part of the project-level preliminary engineering and environmental review if the corridor moved forward.
  • Even though project-level environmental review (which had not been stayed by the trial court) continued on a separate track while the RFPEIR was being prepared, and produced studies of various alternative vertical alignments concluding that an elevated structure (aerial viaduct) was the only feasible vertical alignment for the Belmont-San Carlos-Redwood City portion of the HST route, the program-level EIR (RFPEIR) at issue was not required to address such project-level decisions and impacts, study of which was properly deferred to the second-tier, project-level analysis.
  • The Court of Appeal rejected Petitioners’ arguments that the emerging project-level analysis showing the aerial viaduct to be the only feasible vertical alignment for the Pacheco Pass route had to be included and analyzed in the first-tier RFPEIR because it was a foreseeable part of the Project. In doing so, it recited CEQA’s rules and principles on program EIRs and tiering (14 Cal. Code Regs., §§ 15161, 15168, 15385, 15152), and relied heavily on what it found to be an analogous Supreme Court decision – In re Bay-Delta, etc. (2008) 43 Cal.4th 1143 – which held that specific details about a second-tier project (the Environmental Water Account, or EWA) that were released shortly before certification of the first-tier PEIS/R for the CALFED Program need not have been included in the PEIS/R.
  • The Court of Appeal held the fact “[t]hat such project-level analysis occurred before the final program EIR was certified did not require in Bay-Delta, and does not require here, inclusion of the analysis in the program EIR.” Rather, “there was no approval for the aerial viaducts because the primary decisions ripe for review in the first-tier program EIR were the general alignment and choice of routes between the Pacheco Pass and the Altamont Pass, and did not include the specific vertical alignment at a certain portion of the HST’s route.”
  • The Court found that policy considerations militated against the level of detail Petitioners sought in a Program EIR, and that requiring such detail would undermine the purpose of tiering and unduly burden program EIRs with detail more feasibly provided and useful at the second-tier stage. “While significant new information must be included in an EIR, requiring a program EIR to include everything discovered in project-level analysis before the program EIR is certified would result in ‘endless rounds of revision and recirculation of EIRs that the Legislature did not intend.’” (Citing Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1993) 6 Cal.4th 1112, 1132.) The law did not support Petitioners’ position, which “would require an agency to stop all project-level analysis until after the program EIR was certified in order to avoid endless revisions.”
  • The Court also rejected Petitioners’ argument that the ridership model – a complex set of mathematical equations used to predict how people will travel – that was used for the project description was flawed and unsupported by substantial evidence. An expert project consultant (Cambridge Systematics) substantially increased the model’s coefficient for service headway (which increased the importance for frequent service) as used in the RFPEIR, which Petitioners complained unfairly favored the Pacheco Pass alternative. While the record reflected a disagreement in expert opinion over the proper service headway coefficient to be used, the Authority’s decision to follow Cambridge’s opinion and rely on its model was subject to the deferential substantial evidence standard of review. As the Court explained: “The disagreement was whether to use a service headway coefficient often used for intra-regional travel when the HST system provided inter-regional travel. Cambridge explained its choice; the HST system provided more frequent service than conventional inter-regional rail service. We find this difference of opinion as to which coefficient to use, and on which data to base it, is a dispute between experts that does not render an EIR inadequate. (CEQA Guidelines, § 15151.)”
  • In response to Petitioners’ attempt to challenge the credibility of other experts who supported Cambridge’s travel model, the Court stated: “It is well established that in performing a substantial evidence review, we do not resolve issues of credibility.” (Citing Simons v. City of Los Angeles (1976) 63 Cal.App.3d 455, 470.)  “[I]f there are conflicts in the evidence, their resolution is for the agency.” (Citing Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317.) In short, petitioners failed to establish Cambridge’s travel modeling was not proper expert evidence, and the Authority was entitled to rely on it.
  • The Court also rejected Petitioner’s arguments that the RFPEIR violated CEQA by failing to consider alternative alignments for an alternative Altamont Pass route proposed by another consultant (SETEC). The RFPEIR studied a reasonable range of alternatives, summarizing and comparing 21 representative network alternatives. SETEC’s alternative proposals were analyzed by another consultant for the Authority and determined not to be significantly different than other Altamont Pass alternative alignments previously studied and rejected. Accordingly, the Authority’s rejection of SETEC’s proposal was supported by substantial evidence, since “[w]hen an EIR discusses a reasonable range of alternatives sufficient to Foster informed decisionmaking, it is not required to discuss additional alternatives substantially similar to those discussed.” (Citing Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 355.)
  • Moreover, “City’s infeasibility findings [regarding alternatives] are entitled to great deference and are presumed correct,” and “reviewing court[s] must resolve reasonable doubts in favor of the administrative findings and determination.” [citations]. “A supplemental EIR is [only] required when new information shows an alternative previously found not feasible would be feasible or an alternative considerably different from those previously analyzed would substantially reduce one or more significant effects on the environment but the project proponents decline to adopt it.” (Citing CEQA Guidelines, § 15162(a)(3)(C) & (D).) All of Petitioners’ CEQA claims based on rejection of SETEC’s specific proposals for an alternative Altamont Pass route (e.g., train-splitting, Dumbarton Rail Bridge, South of Livermore/Pleasanton alignment, Fremont Area routes, etc.) were either foreclosed by collateral estoppel and/or meritless because the Authority had already properly considered and rejected substantially similar alternatives.

And so, the HST Project train rolls on. While the Project’s CEQA review – and related litigation – will no doubt continue, the Third District’s latest decision may have taken a little steam out of its environmental opponents.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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