Disappointment in ARB Case

After three years of hard work, TRANSDEF’s challenge to the California Air Resources Board’s adoption of its 2014 Scoping Plan was rejected today by the Court. Disappointingly, the decision was based purely on the technical, procedural objections brought by ARB. ARB never defended its decision to include a GHG-increasing measure in a plan intended to reduce GHGs.

In oral argument, TRANSDEF’s attorney, Stuart Flashman, proposed a new way to look at CEQA GHG impacts--one that we have not heard being used before: Because of the global climate change tipping point being close to the present, he distinguished near-term GHG emissions as being far more significant an impact than emissions occurring after the tipping point has been passed. While a very strong argument, the Court ruled that TRANSDEF’s comments had not made that point, so that we were barred from litigating it. We suggest this issue be raised in future cases.

ARB Scoping Plan Comments Filed

The Air Resources Board produces a Scoping Plan every 5 years. It is the guiding document for the GHG emissions reductions needed to implement California’s climate policy. TRANSDEF submitted a massive comment set, made up of 1). General Comments; 2). VMT Reduction Comments, Attachment: Comments on State-level Strategies; 3). Environmental Assessment Comments, Attachment: Comments on CHSRA 2016 Business Plan; and 4). Comments on Regional Emissions Reduction Targets. For more climate change resources, see this page.

Highway Widening--Crazy Business

TRANSDEF submitted comments on Caltrans’ proposal to add lanes to Highway 101 in San Mateo and Santa Clara Counties. The letter details how futile it would be to add more lanes to the highway, thereby further continuing dependence on solo driving, the cause of congestion in the first place.

Oral Argument Scheduled

Oral argument in our challenge to the Surface Transportation Board’s Declaratory Order that preempts CEQA actions from challenging the HSR project, is being rescheduled to June or July. A hearing will not be held on April 18.

Protecting Niles Canyon

TRANSDEF submitted comments today on Caltrans’ proposal to replace the 89 year-old bridge over Alameda Creek on SR 84, to allow higher speeds “to meet driver expectations.” i

Hearing in ARB Case March 17

TRANSDEF’s challenge to the Air Resources Board’s inclusion of HSR in its 2014 Scoping Plan as a GHG emissions reduction measure is now fully briefed (see bottom of page for briefs). A hearing was held March 17, 2017 at 10:00 am in Department 24, Sacramento Superior Court.

TRANSDEF has submitted
numerous comments to ARB on its 2017 Climate Change Scoping Plan, which is scheduled for approval in April 2017.

Briefing Continues in ARB case

TRANSDEF filed its Opening Brief in its challenge to ARB’s inclusion of HSR in its 2014 Scoping Plan. It’s been a long hard slog since we filed the case back in 2014, but things will move more quickly now. See this page for a copy of the brief, for ARB’s Opposition Brief, and for a description of the case’s complicated history over the past two years. Here’s the Brief’s Conclusion: Read More...

CEQA Preemption Appeal Fully Briefed

The appeal of the CEQA Preemption Order by the federal Surface Transportation Board for California HSR is now fully briefed. Oral argument has not yet been scheduled. The briefs are all posted on the STB page.

Caltrain Electrification Suit Fully Briefed

The challenge to Caltrain’s Electrification EIR is now fully briefed. (See bottom of page.) Petitioners assert that the electrification project is really the first phase of the HSR Blended System on the Peninsula, making the EIR an impermissibly chopped study of the project’s overall impacts. A hearing has been scheduled for 9 AM, September 2, 2016 in Contra Costa Superior Court.

Opening Brief Filed in STB Appeal

TRANSDEF and its allies Kings County, Kings County Farm Bureau, California Citizens for High-Speed Rail Accountability, Community Coalition on High-Speed Rail, California Rail Foundation, and Dignity Health today filed the Opening Brief in their appeal of the federal Surface Transportation Board’s Declaratory Order. That decision eliminated the California High-Speed Rail Authority’s need to comply with CEQA, due to the STB’s assertion of federal preemption of all federal, state, and local regulations pertaining to interstate railroads. See the Briefs.

TRANSDEF Files STB Challenge

In the second of two lawsuits filed today, TRANSDEF joined a coalition of non-profits and Central Valley county governments to challenge the decision of the federal Surface Transportation Board (STB) preempting the application of CEQA to California’s HSR project. In what we consider to be a shocking use of state power, the California Attorney General has previously sought to eliminate the application of CEQA to the state’s HSR project.

On October 9, 2014 the CHSRA
petitioned the STB to block California courts from issuing injunctions that could stop construction of the HSR project. In an ugly turn of events, the STB issued a ruling on December 12, 2014 that blocked not only injunctions but all application of CEQA to the HSR project. Read More...

TRANSDEF Files Caltrain Electrification Lawsuit

TRANSDEF today joined in two litigation coalitions to file suit. In the first lawsuit, it joined the Town of Atherton and the Community Coalition on High-Speed Rail to challenge the Caltrain electrification EIR. TRANSDEF’s concern here is that spending $1.5 billion on electrification will not do much to help ridership. That same money would have a much bigger effect on ridership if it were spent to build the Caltrain Downtown Extension to the Transbay Transit Center. Worse, by trading its current surplus capacity to the California High-Speed Rail Authority for electrification funding, it places a cap on its future ridership. In an era of climate change, in which we need transit operators to greatly expand their ridership, this is a profound strategic error.

For thirty years, Caltrain has wanted to electrify, but never had the money. TRANSDEF believes that this longstanding desire blinded it to the agency’s best interests. We see this as tragically similar to the Biblical tale of Esau selling his birthright to his brother Jacob because he was hungry one night.

TRANSDEF filed extensive comments on the
DEIR and the FEIR. See the Caltrain Electrification page for he background. Read More...

Contra Costa Stuck in the Past

Contra Costa County’s Transportation Authority has released a draft 2014 Countywide Comprehensive Transportation Plan. It is a classic suburban plan that ignores the fundamental challenges posed by climate change and congestion. TRANSDEF submitted comments that attempt to identify a different, more realistic pathway. We believe these comments are widely applicable to suburbia. See the Contra Costa page for more.

CHSRA Declares Independence from CEQA

In a move that screams desperation, the California High-Speed Rail Authority filed a petition with the federal Surface Transportation Board for a declaratory order that would prevent any California court from issuing an injunction to stop the construction of the Fresno-Bakersfield portion of the project. CHSRA wants to hide behind federal preemption. See this page.

By running to the feds for protection, CHSRA has told the world it cannot and will not play by California rules.

In an earlier move seeking to protect its claim to federal preemption of environmental laws, CHSRA asked the Supreme Court to depublish the appellate decision in
Town of Atherton II. See bottom of this page.

New Papers from MTC Lawsuits

TRANSDEF received the fruits of a Public Records Act request from MTC today. Legal papers from Bay Area Citizens v. MTC, including the Index to the nearly 57,000 page Administrative Record, and the settlement agreements in two other cases are posted at the bottom of this page.

CHSRA Tries to Ditch CEQA

After losing part of an appellate decision, the California High-Speed Rail Authority filed a request with the California Supreme Court today, asking it to depublish the 7/31/14 ruling. That would mean no other court could consider the ruling to be precedent, thereby making it easier to argue that CEQA doesn’t apply to railroad projects that are under the jurisdiction of the Federal Surface Transportation Board. All the papers are posted at the bottom of this page.

Plan Bay Area Court Decision Released

Alameda County Superior Court Judge Grillo issued a ruling today in the Bay Area Citizens v. ABAG challenge to Plan Bay Area. He denied their petition that sought a ruling that the EIR was inadequate. See the decision and the briefing at the bottom of this page. This page also contains the settlement between the MTC and Sierra Club and Communities for a Better Environment.

Six Challenges to Fresno-Bakersfield FEIR

TRANSDEF has collected the six petitions that challenge the Fresno-Bakersfield project level FEIR. The show begins...

Multiple Suits Challenge Plan Bay Area

Multiple lawsuits were filed, challenging the FEIR for the Bay Area’s regional plan under CEQA. Interestingly, they attack the plan from different directions:

The Sierra Club/Communities for a Better Environment suit seeks a reduction in greenhouse gases and air pollution that affects communities of color in West Oakland. The “Bay Area Citizens” suit is a right-wing challenge to what it views as an assault on Americans’ God-given right to live in suburbs. The Building Industry Association suit makes interesting claims that have never been litigated: that the regional plan violates SB 375 by not providing for feasible levels of housing for the entire population of the Bay Area, including in-commuters from the Central Valley.

For the associated documents, see the bottom of
this page.

HSRA seeks federal protection from lawsuits

The California High-Speed Rail Authority filed a brief today asking the State Court of Appeal to dismiss the Atherton petitioners’ appeal on the grounds that the federal Surface Transportation Board had asserted federal jurisdiction over its project.

This brief involved a massive amount of gall, seeing as the High-Speed Rail Authority had not applied to the STB for permission to construct its project until very recently, long after all the briefing in this case had been filed. All materials related to the appeal are available

TRANSDEF Comments on Plan Bay Area

TRANSDEF filed comments on the Bay Area’s Draft Sustainable Communities Strategy today. By a fascinating coincidence, U.S. PIRG released its study today, called A New Direction, which is directly relevant to how to approach a regional transportation plan. This study points out the transportation planning consequences of the emerging pattern of millennials driving less. These documents are available here.

Our Legal Team Has Been Busy

Round 2
On October 15, 2012, petitioners in the
Atherton I and Atherton II cases filed their Appellants Opening Brief, challenging several elements of a largely favorable court ruling back in February. For the brief, and details, see the bottom of this page.

Round 3
Two days later, our team filed an Objection to the Authority’s Return on the Writ. This is a procedure in which the High-Speed Rail Authority, represented by the Attorney General’s office, is seeking to demonstrate that it has completed a series of actions ordered by the Court, back in February. The Authority claims that its April 2012 Partially Revised Final Program EIR complies with CEQA. Our Objection claims that the EIR violates CEQA because it refuses to analyze as an EIR alternative the Blended System described in the Revised 2012 Business Plan. For details, see
this page.

HSRA Approves Pacheco Yet Again

On April 19, in accordance with writs issued by the Sacramento Superior Court in response to litigation by TRANSDEF and its allies, the CA High-Speed Rail Authority rescinded its previous certification of the 2010 Revised Final Program EIR for the Bay Area to Central Valley portion of its HST project, and rescinded its approval of the Pacheco route.

After that action, the Board certified a Partially Revised Final Program EIR and adopted the Pacheco route. While the result was the same as its 2010 action, this time was different. Authority Board members went to great lengths to appear to seriously consider the Altamont route. This was a striking change from the arrogance of past Boards. Nonetheless, the outcome was the same: nothing has changed.

The Board heard strong testimony from environmentalists as to the merits of the Altamont route. The Board heard strong testimony from environmentalists as to the merits of the Altamont route. TRANSDEF provided this testimony, which criticized the EIR and called out the EIR preparers’ underhanded tricks:

Hospital Required to Mitigate GHGs

TRANSDEF, along with fellow litigants the Sierra Club and the California Nurses Association, prevailed in a challenge to Sonoma County’s approval of a new Sutter Hospital on the fringe of Santa Rosa. They challenged the Environmental Impact Report as being inadequate in mitigating greenhouse gases, because of the site being totally auto-dependent. After several hearings and appearances before a judge, the County agreed to require Sutter Hospital to provide a shuttle to the hospital from the nearest SMART rail station. Sutter will also provide free bus and train passes to its employees, in addition to other incentives for vanpooling and carpooling.

These may possibly be the first mitigations in California imposed specifically for GHG impacts. Check out the
Press Democrat story.

LA Times Covers HSR

The Los Angeles Times has given excellent coverage to questions about the legality of the HSRA’s Central Valley project. TRANSDEF’s David Schonbrunn was interviewed in this article about the Governor’s attempt to get other environmental groups to go easy on this project.

Other HSR articles in the LA Times:

A detailed look into whether the blended system would comply with Proposition 1A.

Peter Calthorpe’s Vision California vs. right-wing defenders of the status quo.

Yet Another HSR DEIR

TRANSDEF, the Planning and Conservation League, the California Rail Foundation and the Community Coalition on High-Speed Rail filed comments on the Partially Revised Draft EIR today. This is the HSR Authority’s third attempt to come up with a legally defensible EIR for the Bay Area to Central Valley portion of the Statewide HSR project. TRANSDEF and its allies, which include the cities of Atherton, Menlo Park, and Palo Alto, successfully challenged the previous EIRs.

These comments propose an entirely new Altamont route, based on the
Altamont Corridor Rail Project Preliminary Alternatives Analysis Report. (See an earlier Newsletter for an overview of this exciting project.) By avoiding the environmental impacts identified in earlier DEIRs, this alternative poses a challenge to the Authority’s stubborn insistence on the Pacheco route: An unbiased evaluation would determine the new Altamont alternative to be environmentally superior to Pacheco.

The comment letters and attachments are posted at the bottom of the
Altamont page.

Court Rules Again Against HSRA

On Thursday, November 10, Judge Michael Kenny of the Sacramento Superior Court released a pair of decisions 38 and 40 pages long, invalidating the Environmental Impact Report for the Central Valley to Bay Area section of the California High-Speed Rail project--for the second time. The Judge found that the California High-Speed Rail Authority had failed to adequately address a series of challenges raised by the Petitioners, comprised of the Town of Atherton, the City of Menlo Park, the City of Palo Alto, the California Rail Foundation, the Transportation Solutions Defense and Education Fund, the Planning and Conservation League, Patricia Giorni and the Mid-Peninsula Residents for Civic Sanity.

The court found that the project’s Revised Environmental Impact Report had failed to discuss significant impacts, failed to consider information from the Authority’s parallel project-level studies, and failed to recirculate the document for public comments.

For the second time, the Court ordered the Authority to rescind its approvals selecting the Pacheco Pass alignment and its certification of the associated Revised Final Environmental Impact Report.

Gary Patton, co-counsel, stated that "The court's decision tells the California High-Speed Rail Authority that it can't keep ignoring the public's right to participate. The court's decision in the Atherton II case says that the Authority failed in its duty to recirculate the CEQA document to get public comments, and this was a violation of the law.”

Richard Tolmach, President of the California Rail Foundation, declared that “Twice in a row, the Authority ignored the requirements of environmental law. The Judge found they still have not done a proper study.”

Stuart Flashman, lead counsel, stated that “In rejecting the EIR, the Court has upheld the principle that significant project impacts cannot be swept under the rug for later consideration, after the key decisions have already been made.”

Because the EIR challenge was divided procedurally into two parts, there are two decisions:
Atherton I and Atherton II.

Round 2 in HSR Litigation

A coalition of three cities, three environmental organizations, two citizens’ groups and a taxpayer today filed suit challenging the Environmental Impact Report for the high-speed rail connection between the Central Valley and the Bay Area.  The report was issued by the California High-Speed Rail Authority, which is responsible for planning a statewide high-speed rail system. Five of the parties had challenged the previous version of the report, resulting in the court throwing it out and ordering it rewritten.

The cities of Palo Alto, Menlo Park, and Atherton joined the California Rail Foundation, the Transportation Solutions Defense and Education Fund and the Planning and Conservation League. Palo Alto had not been a party in the previous challenge, although it filed a supportive brief. Also joining are two citizens’ groups centered in the San Francisco Peninsula: The Community Coalition on High-Speed Rail and Mid-Peninsula Residents for Civic Sanity.  The Rail Authority’s chosen alignment would run through the Peninsula along the Caltrain/Union Pacific rail corridor.

Click here to see all the documents

Statewide CEQA Guidelines Revisions

In response to SB 97 and AB 32, the California Resources Agency has been revising the Guidelines under which the California Environmental Quality Act is implemented. These revisions call for the analysis of greenhouse gas emissions as part of standard environmental review under CEQA, including the analysis of the impacts of the emissions and their mitigation. Check out their website.

Comments Filed on Sonoma Transportation Plan

TRANSDEF filed comments on the Draft EIR for the Sonoma County Transportation Authority’s Comprehensive Transportation Plan. Find them next to the New! logo. Read More...

Comments on the DEIS for BART to San Jose

Summary only available when permalinks are enabled.