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Is High-Speed Rail a Greenhouse Gas Emissions Reduction Measure?
TRANSDEF’s Lawsuit Against ARB Says No!

The California Air Resources Board (ARB) is responsible under AB 32 for planning how the State will reduce its Greenhouse Gas (GHG) emissions. The compilation of that planning is known as the Scoping Plan. TRANSDEF filed these written comments with ARB on its Draft Update to the Scoping Plan. The full set of comments contained attachments, including the TRANSDEF critique of the CHSRA’s GHG report and comments on the discussion draft of the Scoping Plan Update. The critique relies heavily on a paper by Drs. Mikhail Chester and Arpad Horvath, which concluded that the HSR project would be a net emitter of GHGs for the first twenty to thirty years of HSR operations. An earlier version of this paper formed the basis for the Legislative Analyst’s skeptical report on HSR (p. 14).

TRANSDEF’s President delivered this testimony at ARB’s hearing, held in May of 2014. After closing the hearing, ARB adopted the First Update to the Scoping Plan without offering any rebuttal to the testimony.

On June 23, 2014, TRANSDEF filed suit in Fresno County Superior Court alleging that the certification of the Environmental Analysis (EA) violated CEQA because:

• The EA did not disclose the large amount of concrete production associated with HSR construction
• The EA did not disclose the GHG emissions from concrete production associated with HSR construction
• ARB did not independently evaluate the net GHG emissions benefits of HSR, and did not verify that the GHG reductions would be permanent.
• The EA did not disclose the impacts of those emissions
• The EA did not disclose the cumulative impacts of HSR as including the GHG emissions from concrete production associated with HSR construction
• The EA did not analyze or consider feasible mitigations that would reduce these emissions
• The EA did not analyze or consider alternatives that would reduce these emissions
• The EA did not adequately respond to TRANSDEF’s comments
• The findings adopted by ARB were inadequate, as they did not address TRANSDEF’s comments
• The EA should have been recirculated

In addition, ARB violated AB 32, the Global Warming Prevention Act, by:

• Failing to ensure that the GHG emissions reductions claimed to be achieved by HSR were real, permanent, quantifiable, verifiable, and enforceable
• Approving the use of cap and trade funding for the construction of HSR, which will increase GHG emissions, directly contrary to the intent of AB 32

TRANSDEF’s Petition and Complaint

TRANSDEF is seeking the following relief from the court:

• a writ directing ARB to remove HSR from the Scoping Plan and from eligibility for cap and trade funds
• a writ directing ARB to follow CEQA in reconsidering the inclusion of HSR in the Scoping Plan
• a declaration that the Legislature may not appropriate cap and trade funds unless the measure, program or project is included in a properly adopted Scoping Plan
• a declaration that the Legislature’s June 15th appropriation of cap and trade funds to HSR is invalid
• a temporary restraining order, and/or preliminary and permanent injunctions to prevent the use of cap and trade funds for HSR until the case is decided

The Administrative Record is 30,000+ pages long, with another 80,000 pages stipulated to as part of the record, but not needing to be printed.

ARB and CHSRA filed Demurrers, seeking to force the elimination of the parts of the complaint that could result in the Court stopping the flow of cap and trade funds to CHSRA. After TRANSDEF filed its Opposition, ARB and CHSRA filed their Reply Briefs. The Court sustained the Demurrer in part, leading to the filing of an amended Petition which dropped the challenge to the Legislature’s actions.

TRANSDEF filed its Opening Brief and Request for Judicial Notice on January 3, 2017.

ARB filed its Opposition Brief, Request for Judicial Notice and proposed Exhibits on February 2, 2017.

TRANSDEF filed its Reply Brief, Motion to Strike, Objection to Request for Judicial Notice and Supplemental Request for Judicial Notice on February 22.

A hearing was held on March 17, 2017 in Sacramento Superior Court. The Court ruled on May 15 that TRANSDEF’s comments hadn’t properly addressed the Scoping Plan Environmental Assessment, and ruled against all our contentions. No substantive issues were reached.