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HSR Litigation, Round 2

After the judge in the ridership challenge (see previous page) ruled that plaintiffs had an alternative remedy to challenge the ridership model, TRANSDEF and its allies filed an EIR challenge on 10/4/10.

Petition and Complaint, the complete version, including all Exhibits

Petition and Complaint, without Exhibits

Comment letter on Revised Final EIR (Exhibit D to Petition and Complaint)

In addition, the plaintiffs in the previous CEQA litigation filed the following objections on the California High-Speed Rail Authority’s return on writ:

Objections

The case has been now divided into two parts: Atherton I is a continuation of the challenge to the 2008 EIR by the Town of Atherton, the City of Menlo Park, the Planning and Conservation League, the California Rail Foundation, and the Transportation Solutions Defense and Education Fund (TRANSDEF). This case objects to the Revised Final Program EIR as not being an adequate response to the Court’s Decision invalidating the Final Program EIR.

Atherton I Opening Brief

Atherton I (Declaration of Elizabeth Alexis)

HSRA Brief in Opposition to Atherton I Objections

Atherton I Reply Brief


Atherton II is a lawsuit challenging the legality of the revised EIR by the City of Palo Alto, the Community Coalition on High-Speed Rail, Mid-Peninsula Residents for Civic Sanity, and Pat Giorni.

Atherton II Opening Brief

Atherton II (CC-HSR) Opening Brief

HSRA Brief in Opposition to Atherton II Petition

Atherton II Joint Reply Brief


The principal contentions in the briefs were:

• The project description was inadequate in failing to properly address the newly-discovered inaccuracy of previously-published modeling of the project and alternatives and failing to provide reliable information on ridership and revenue for the Project and alternatives;
• The Revised EIR failed to acknowledge significant or significantly increased traffic, noise, vibrational, air quality, visual, and blight-inducing impacts caused by changes to the Project since certification of the prior FPEIR;
• The Revised EIR failed to respond adequately to comments received on the Revised DEIR;
• The Revised EIR failed to adequately evaluate a feasible new alternative that would have substantially reduced or avoided significant Project impacts, but which the Project sponsor refused to either seriously consider or adopt;
• Respondent failed to recirculate the Revised EIR in response to the above new information;
• Respondent adopted inadequate findings in re-approving the Project. The findings were not supported by substantial evidence in the record.

Rulings in the Atherton I case and the Atherton II case were issued on November 10, 2011. 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.”

The decision elements which favored the Petitioners’ claims:

Atherton I

• The Revised Final Program EIR fails to adequately address the traffic impacts associated with narrowing the Monterey Highway. p. 11
• The Revised Final Program EIR fails to adequately address the impacts associated with moving the Monterey Highway eastward. p. 17
• Respondent failed to analyze the potential noise and vibration impacts of placing freight trains closer to residences and businesses. p. 22
• Respondent improperly deferred analysis of impacts associated with reduced access to surface streets its second-tier, project-level analysis. p. 28

Atherton II

• New information regarding significant impacts in the Revised Program EIR required recirculation. p. 29
• New information regarding the increased significance of previously disclosed significant impacts in the Revised Program EIR required recirculation. p. 31
• Respondent’s analysis of traffic impacts related to the narrowing of Monterey Highway is deficient. p. 36

Writs were issued February 1 requiring the HSRA to rescind its certification of the RFPEIR, its approval of the Pacheco Alignment, and its CEQA Findings. On April 19, 2012, the Authority Board took those actions, and then certified a Partially Revised Final Program EIR and reselected the Pacheco Alignment.

Atherton Appeal
On October 15, 2012, Atherton I and Atherton II petitioners filed an appeal.