High-Speed Rail Foes Fight Feds Over CA Enviro Law

SAN FRANCISCO (CN) - California's beleaguered high-speed rail project faces yet another legal hurdle after two Central Valley counties and several activist groups on Monday asked the 9th Circuit to review whether federal environmental law preempts state rules.

The U.S. Surface Transportation Board - the federal agency that oversees the nation's rail lines - ruled this past December that the California Environmental Quality Act 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. 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 found.

Kings County - joined by Kern County and five agricultural and citizen watchdog groups - asked the 9th Circuit Court of Appeals to review the Surface Transportation Board's decision, which they say "went well beyond what was requested of it and declared that CEQA was preempted for all purposes for the Fresno-to-Bakersfield segment."

Calling the board's decision "error," the counties and activists say the order "ignores the fact that CEQA is not a regulatory statute, but an informational statute intended to assure that the decision-makers and the public are properly informed of the significant environmental consequences of a pending decision and ways in which those consequences could be feasibly mitigated or avoided."

The petitioners also point out that because the California High Speed Rail Authority is a state agency, using the Interstate Commerce Act's preemption clause would illegally "interfere with a sovereign power of state to oversee its own subordinate governmental entities."

"Under the market participant exception to federal preemption under the Commerce Clause, the state's actions to control the behavior of its own component entities, as would a private party, are not preempted," the 6-page petition states. "In this instance, the California Legislature created CHSRA as a component agency within the state's government and intended CEQA to apply to this agency as a state-run enterprise."

The counties and activists note that the Third Appellate District in Sacramento already held in 2014's Town of Atherton v. California High Speed Rail Authority that CEQA is not preempted by the Interstate Commerce Act for the San Francisco-to-Merced segment of the planned 800-mile project.

Late last year, the California Supreme Court declined the CHSRA's request to depublish Atherton, effectively making the appellate decision final. The high court will also review an unrelated First Appellate District decision that CEQA is preempted by the Interstate Commerce Act when it comes to public rail projects in an effort to resolve conflicts between that case and Atherton, the petitioners say.

This latest move by Central Valley counties and activists is one of several lawsuits that have plagued the high-speed rail project, which was approved by voters in 2008 and finally broke ground last month.

Once completed in 2029, the $68 million project promises to whisk riders from Los Angeles to San Francisco in under three hours at speeds up to 220 mph.

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