Ninth Circuit Rejects Beverly Hills School Fight Against Subway

LOS ANGELES (CN) — The Ninth Circuit on Tuesday dismissed Beverly Hills Unified School District’s request to block LA Metro’s plan to extend a subway under Beverly Hills High School.

The plan to extend the Metro Purple Line to Beverly Hills and Century City has been in the works for decades. The school district challenged the proposed alignment, from Constellation Boulevard to Century City, saying it violates the National Environmental Policy Act.

At a hearing in July, the school district told the Ninth Circuit that billions of dollars were committed without proper environmental review of the project, which would tunnel through pockets of methane gas and abandoned oil wells beneath the high school.

But in an unpublished memorandum Tuesday, the Ninth Circuit rejected the school district’s appeal of U.S. District Judge George Wu’s denial of its request for a preliminary injunction.

Wu ruled last year that construction could begin, and this year Mayor Eric Garcetti, U.S. Transportation Secretary Anthony Foxx and Metro officials announced $1.5 billion in federal grants and loans for the project.

In dismissing, the panel found that a grant agreement and design-build contract “do not represent an irreversible and irretrievable commitment to the Constellation Station alignment” and said the district’s challenge was premature.

The Federal Transit Administration “represented to the district court that the grant agreement and the design/build contract would not prevent it from making changes to the planned alignment. The district court did not clearly err in finding that such changes were possible. Accordingly, the agreements were not final agency action,” the 5-page memo states.

Beverly Hills wants to stop Metro from committing to a Constellation Boulevard base station without additional environmental review, and said the billions of dollars already allocated to the project will prevent changes.

But the Ninth Circuit said the Federal Transit Administration is considering weaknesses in an Environmental Impact Statement and that under the district court’s supervision, “the parties are free to return to it [the school’s NEPA complaint] if subsequent events warrant.”

The school district is represented by Jennifer Recine of the New York firm Kasowitz Benson Torres. Recine said that the Federal Transit Administration’s own analysis had identified alternative routes that would allow Metro to cross the campus without disrupting educational and recreational facilities.

“If the FTA fairly evaluates those alternatives, it will choose a mutually acceptable and beneficial route.  To the extent the FTA fails to do so, the school district will challenge the outcome of the process, which has already been detrimentally impacted by Metro’s predetermination of its preferred route,” Recine wrote in an email.

Ninth Circuit Judges Kim Wardlaw and Harry Pregerson sat on the panel with U.S. District Judge Edward Chen, sitting by designation from the Northern District of California.

Justice Department spokesman Mark Abueg declined to comment.

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