Beverly Hills School Asks Ninth Circuit to Put Brakes on Metro Subway Project

LOS ANGELES (CN) – The Beverly Hills Unified School District on Friday asked the Ninth Circuit to revive its request to block a plan to extend a subway under its high school, arguing that billions of dollars were committed to the project without a proper environmental review.

The plan to extend the Metro Purple Line to Beverly Hills and Century City has been in the works for decades. But the school district says the proposed alignment from Constellation Boulevard to Century City would mean tunneling through pockets of methane gas and abandoned oil wells beneath the school and that the project violates the National Environmental Policy Act, or NEPA.

In August 2016, U.S. District Judge George Wu ruled that construction could begin, and earlier this year Los Angeles Mayor Eric Garcetti, U.S. Transportation Secretary Anthony Foxx and Metro officials announced $1.5 billion in federal grants and loans for the project.

Beverly Hills wants an injunction to prevent Metro from committing to a Constellation Boulevard base station without conducting an additional environmental review, arguing that the billions of dollars already allocated to the project have left little room to maneuver.

Wu denied the motion for a preliminary injunction on Jan. 12.

At a hearing Friday morning at the Richard H. Chambers Courthouse in Pasadena, Jennifer Recine, an attorney representing the school, told the Ninth Circuit panel that Judge Wu should have prevented the agencies from entering into contracts and committing billions of dollars without first taking a closer look at “feasible and prudent alternatives to that alignment.” She said that the judge had abused his discretion on the “law and facts.”

“The school supports the Purple Line extension,” Recine said. “But it is critically important that in funding and constructing a popular and necessary project that the agencies are held to the same exacting environmental standard that we hope would be applied when another agency claims that a 10-lane highway or a nuclear power plant must be located next to an inner city elementary school, or in a habitat of an endangered species.”

Justice Department attorney David Gunter said the Federal Transportation Administration’s role in the project was to offer public transportation for tens of thousands of Angelenos; he asked the court to affirm.

But U.S. District Judge Edward Chen, sitting by designation on the Ninth Circuit panel from the Northern District of California, wondered if the commitments in funding would diminish the school’s hope of finding an alternative route for the subway.

“Part of their argument also is that the deeper and deeper they get into the funding and implementation, the more committed the agencies are and therefore less and less likely to really take a hard look and give a full analysis,” Chen said.

But Gunter countered that the FTA faces no financial liability if the decision on the alignment turned out to be different. He said that of the $1.2 billion construction grant agreement with Metro, the FTA had so far disbursed about $65 million. Those funds were “not specific to any particular location,” Gunter said.

“We’re not trying to prevent Beverly Hills from making sure that FTA and Metro comply with NEPA. They are entitled to make sure we comply with NEPA, but they’re not necessarily entitled to do it in this untimely attack on the remedy order, or in a motion for a preliminary injunction right now. The district court has said it intends to protect Beverly Hills’ interests, and we’re simply asking this court to send the case back to the district court so that [the judge] can do that,” Gunter said.

During rebuttal, U.S. Circuit Judge Harry Pregerson asked Recine, “What does Beverly Hills really want?”

“What Beverly Hills wants is for this alignment to move across its campus to the Constellation Station underneath its ball field. That’s what it wants,” Recine said.

Recine is with Kasowitz Benson Torres in New York City.

U.S. Circuit Judge Kim Wardlaw joined Pregerson and Chen on the panel. The court took the matter under advisement.

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