Is CEQA Preempted by Surface Transportation Board Jurisdiction?
Litigants File Appeal of STB Declaratory Order

In an effort to evade the CEQA challenges to the Fresno-Bakersfield EIR, CHSRA petitioned the Surface Transportation Board (STB) to protect their project from being shut down by a court injunction. By a 2-1 vote, the STB granted a declaratory order completely preempting CEQA. After litigant’s request for a rehearing was denied, they filed a Petition for Review with the 9th Circuit Court of Appeals.

The litigants are: Kings County, Kings County Farm Bureau, California Citizens for High-Speed Rail Accountability, Community Coalition on High-Speed Rail, California Rail Foundation, Transportation Solutions Defense and Education Fund (TRANSDEF), and Dignity Health.

On Monday, December 7, 2015, Petitioners filed their Opening Brief, accompanied by:
Addendum to the Opening Brief
Errata to Opening Brief
Excerpts of the Record
Motion for Judicial Notice
and a
Motion for Stay, or in the Alternative, Referral to the California Supreme Court

Opposition Brief by Respondent STB
Opposition Brief by Intervenor CHSRA
Intervenor’s Request for Judicial Notice
Intervenor’s Addendum Statutes

Amicus Brief by Center for Biological Diversity
Petitioners’ Reply Brief [26 Mb. file]
Petitioners’ Supplemental Motion for Judicial Notice

At oral argument, the STB asserted that declaratory order had been intended to be advisory to the California Supreme Court. Because of that, STB asserted the declaratory order was not a final order, and therefore was not appealable. The 9th Circuit panel
agreed and dismissed the case.