CEQA Can’t Derail High-Speed Rail, Feds Say

     
     (CN) – The federal agency that oversees the nation’s rail lines dealt a potential blow to challenges to California’s beleaguered high-speed rail project, by declaring that federal law trumps the state’s stringent environmental standards.
     In a 2-1 vote, the U.S. Surface Transportation Board ruled last week the California Environmental Quality Act, or CEQA, is “categorically preempted” by the federal Interstate Commerce Act. The preemption provision of that act, broadened by Congress in 1995, gives the board exclusive jurisdiction over all aspects of rail transportation – from switches to tracks to terminals, the board found.
     And since the board had already approved another portion of the California high-speed rail project last year – because of planned links to the interstate rail system – attempts to stall the project with dozens of CEQA lawsuits fail under federal law, the board said.
     “CEQA is a state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the board has specifically authorized, thus impinging upon the board’s exclusive jurisdiction over rail transportation,” commissioners Daniel Elliott III and Deb Miller wrote. “In addition, a CEQA enforcement suit in this context attempts to regulate a project that is directly regulated by the board. The Interstate Commerce Act expressly preempts any state law attempts to regulate rail construction projects, as they are under the board’s exclusive jurisdiction.”
     As for the seven CEQA lawsuits over the proposed Bakersfield-to-Fresno line alone – which breaks ground in January – the board said it had already greenlighted the line after reviewing its environmental impacts under the National Environmental Protection Act and based on its transportation merits.
     “We believe that this conflict with our jurisdiction runs contrary to Congress’s intent,” the board held. “In particular, we conclude that any implied agreement to comply with CEQA that potentially could have the effect, through the mechanism of a third-party enforcement suit, of prohibiting the construction of a rail line authorized by the board unreasonably interferes with interstate commerce by conflicting with our exclusive jurisdiction and by preventing the California High-Speed Rail Authority from exercising the authority we have granted it.”
     But in a blistering dissent, board member Ann Begeman called the board’s ruling an “overreaching order that also clears the citizens of the state of California from the High-Speed Rail Authority’s path.”
     “Just as I could not support the majority’s prior oversight avoidance, I cannot support moving a significant piece of the authority’s decision-making beyond the reach of the people whose interests the authority purportedly serves,” Begeman added.
     How the board’s decision will affect the seven Fresno-Bakersfield line lawsuits – which are currently pending before Sacramento County Superior Court Judge Michael Kenny – or other environmental challenges to the project peppering the state remains unknown. But Kings County Counsel Colleen Carlson told the Fresno Bee on Monday that the ruling “practically invites more litigation.”
     The now-$68 billion project – approved by voters under Proposition 1A in 2008 – has been besieged by other litigation as well, outside the environmental realm. Although the California Supreme Court in October refused to jump in on a debate over $9 billion in bond funds that will be used to break ground on the project, the rail authority still faces challenges over whether voters were sold on the false promise of speed.
     While Prop. 1A mandated that trains must whisk passengers from Los Angeles to San Francisco in under three hours, the authority’s routing choices over the treacherous Tehachapi Mountains and through the heart of the Central Valley – making potentially 10 stops along the way – and its blended integration with standard-speed rail make it impossible for the trains to reach the 220-mph speed necessary to hit the three-hour mark, opponents claim.

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