CEQA Alert: Court of Appeal Blunts Latest CEQA Attack on California’s High-Speed Train System

On July 24, 2014, California’s Third Appellate District affirmed a trial court’s ruling that the California High-Speed Rail Authority’s (Authority’s) revised final program environmental impact report/environmental impact statement (PEIR/EIS) for the proposed California high-speed train (HST) system generally complied with CEQA, with the exception of a flawed traffic impact analysis.

The appellate decision arose from two separate challenges below. The “Atherton I” petitioners had secured a partial victory in their challenge to the Authority’s revised final PEIR, which was the product of a successful challenge to the “original” final PEIR: the trial court ruled that the revised final PEIR failed to adequately address the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment for the HST.
 

However, the trial court rejected the Atherton I petitioners’ other CEQA challenges, holding that it was proper for the Authority to defer analysis of certain vertical profile alignment impacts—relating to the elevation of track above ground level—until a later project-specific EIR. The court also held that petitioners’ challenge to information contained in the project description that was based on an allegedly flawed revenue and ridership model reflected a “classic disagreement among experts that often occurs in the CEQA context” and did not provide a basis for invalidating the PEIR.

 

With respect to the challenge brought by the “Atherton II” petitioners, the trial court found that the Authority’s alternatives analysis complied with CEQA and there was no abuse of discretion in its failure to consider alternatives submitted by petitioners’ expert consultant.

 

Due to the deficiencies in the traffic analysis with respect to the Monterey Highway impacts, the trial court denied the Authority’s motion for discharge of the writ in the underlying challenge to the original PEIR and issued a supplemental peremptory writ ordering the Authority to rescind and set aside the resolution certifying the revised final PEIR. The Atherton I and Atherton II petitioners then collectively appealed in light of their partial victory below.

 

On appeal, petitioners alleged that the Authority’s revised final PEIR violated CEQA because:

1. it provided an inadequate analysis of the “vertical profile options for alignment” along portions of the San Francisco Peninsula;
2. it used a flawed revenue and ridership model that improperly skewed the results in favor of the Pacheco Pass alternative for connecting the Central Valley to the San Francisco Bay Area, rather than the Altamont Pass alternative further to the north; and 
3. the range of alternatives analyzed was inadequate. 

As a preliminary matter, the court of appeal rejected the Authority’s argument that CEQA was preempted in this case by the Interstate Commerce Commission Termination Act (ICCTA).  The court held that application of the “market participation doctrine,” which generally distinguishes between a state’s role as regulator versus its role as a market participant, defeated the preemption claim.

 

On the merits of the CEQA claims, the court of appeal upheld the Authority’s use of a program EIR, deferring site-specific analysis of the vertical alignment of the HSP in the Belmont-San Carlos-Redwood City portion of the project area to a later project-level EIR. The fact that the project-specific analysis of an aerial viaduct for that portion of the route was proceeding concurrently with revisions to the PEIR did not necessitate inclusion of that project-specific discussion in the programmatic document. 

 

With respect to the allegedly flawed revenue and ridership model, the court held that the challenge amounted to a classic CEQA “battle of the experts” and, because substantial evidence supported the methodology of the Authority’s consultant, the PEIR could not be found deficient on that basis.

Finally, the court held that the Authority analyzed an adequate range of alternatives and was not required to evaluate additional alternatives proposed by petitioners, based on one of the following findings:

1. the claim was barred by collateral estoppel;
2. the alternative was substantially similar to one of those evaluated in the revised final PEIR;
3. the alternative would continue to be studied at the project level; or
4. the Authority’s infeasibility findings were supported by substantial evidence.

This will probably not be the last of the CEQA challenges facing the HST. A petition for review by the Supreme Court is likely. Also, because the court of appeal affirmed the trial court’s issuance of a supplemental peremptory writ and ordered the Authority to set aside its approval of the revised final PEIR to correct deficient traffic analyses, additional challenges may follow issuance of a (further) revised final PEIR with respect to that issue. Finally, any project-level EIRs prepared for the HST may also face CEQA challenges.

 

--Don Sobelman and Nicole Martin

 

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com; or Nicole Martin at (415) 228-5435 or nmm@bcltlaw.com.