Palo Alto, Menlo Park, Atherton sue HSRBy Gennady Sheyner
Palo Alto, Atherton and Menlo Park launched a fresh lawsuit Thursday against the California High-Speed Rail Authority, claiming the state agency violated state laws when it approved a comprehensive study evaluating the Bay Area-to-Central Valley segment of the 800-mile high-speed rail system.
The three cities, which have been among the most vocal critics of the voter-approved rail system, claim in their lawsuit that the rail authority ignored their comments and essentially disregarded new information identifying flaws in the agency's ridership models.
The cities are joined in their lawsuit by the nonprofit groups California Rail Foundation, the Transportation Solutions Defense and Education Fund (TRANSDEF) and the Planning and Conservation League; and two citizens' groups -- Community Coalition on High-Speed Rail and the Midpeninsula Residents for Civic Sanity.
This is the second lawsuit filed by Midpeninsula cities that challenges the rail authority's Program Environmental Impact Report (EIR) -- a voluminous document that identifies the Pacheco Pass as the preferred alignment for the voter-approved rail line.
The first lawsuit forced the authority to "decertify" and revise the EIR but did not force it to reconsider the preferred alignment for the Bay Area segment. The authority completed the court-mandated revisions and re-certified the document on Sept. 2.
While Menlo Park and Atherton were both plaintiffs in the initial lawsuit, Palo Alto remained largely on the sidelines. Palo Alto submitted a "friend of the court" letter in support of the plaintiffs, but the court didn't consider the letter in issuing its judgment. The City Council voted unanimously on Sept. 21 to officially join the new lawsuit against the rail authority.
The lawsuit, filed by the coalition's attorney Stuart Flashman, claims that the rail authority's new Program EIR continues to violate the California Environmental Quality Act (CEQA) and asks the Sacramento County Superior Court to invalidate the newly approved EIR.
The authority, the suit states, approved the Bay Area-to-Central Valley segment of the project based on a report that "did not have an adequate description, did not give adequate consideration to the Project's impacts on the environment" and "failed to proposed adequate mitigation measures to address the Project's significant impact."
The authority also failed to "provide a fair and adequate consideration of feasible alternatives" to the project, as approved in the document, the suit claimed. Plaintiffs had persistently lobbied the authority to reconsider the Altamont Pass in the East Bay as the possible alternative to the Pacheco Pass for the Peninsula segment.
The new suit seeks both to reopen the Program EIR and to prevent the authority from releasing and certifying any future environmental reports predicated on the Pacheco Pass alignment. This would include the highly anticipated "project-level" Environmental Impact Report for the San Francisco-to-San Jose segment. The detailed and highly anticipated document, which the authority plans to release in December, is expected to analyze and narrow the design options for the Peninsula segment.
The authority hopes to certify the Project EIR later this year and start construction on the Peninsula segment next year. The agency needs to break ground in 2012 in order to qualify for Federal Railroad Administration grants.
The new lawsuit argues that because the broad program EIR violates state law, any project EIR based on it would also be illegal and "will result in irreparable harm" unless invalidated by the court.
The new lawsuit also argues that the authority violated the CEQA when it failed to re-circulate the Program EIR for public comment after "significant new information" emerged about the methodology in the report. The new information includes the discovery earlier this year by the Palo Alto-based group Californians Advocating Responsible Rail Design (CARRD) that the authority's transportation consultant used ridership models that were neither publicized nor peer reviewed.
The lawsuit claims the "model used to obtain the data contained major flaws that rendered the data obtained from it untrustworthy." The Institute of Transportation Studies at the University of California, Berkeley, also reviewed the ridership methodology in the program EIR and concluded in June that the numbers in the study are unreliable.
Flashman, who also represented the coalition in the first lawsuit, warned the authority last month that the revised document remains flawed and that a fresh lawsuit would soon be filed. He and other members of the coalition urged the authority on Sept. 2 not to approve the revised Program EIR until the Peninsula's concerns are addressed.
Flashman also wrote in a letter to the authority that while he understands the authority's desire to break ground by 2012, "the desire to meet a deadline is not an excuse to ignore the law."
He asked the authority to "stop, take a deep breath and reconsider its course of action."
"Indeed, if the authority continues forward on its current course, the most likely result will be that it will once again find itself embroiled in litigation and eventually end up, as before, on the short end of an adverse court ruling," Flashman wrote.
"That will require you to waste even more time by having to back up and try again," he wrote.
Copyright ©2010 Palo Alto Online. Published 10/04/2010.