Rul­ing may slow high-speed rail

Cal­i­for­nia Supreme Court says state-owned rail projects are not ex­empt from state en­vi­ron­men­tal laws.

Los Angeles Times - - FRONT PAGE - By Maura Dolan and Ralph Vartabe­dian

Court says bul­let train is not ex­empt from state en­vi­ron­men­tal laws.

Cal­i­for­nia’s high-speed train project is likely to con­tinue to be buf­feted by en­vi­ron­men­tal chal­lenges as a re­sult of a de­ci­sion by the state’s top court.

In a 6-1 rul­ing last week writ­ten by Chief Jus­tice Tani Can­til-Sakauye, the Cal­i­for­nia Supreme Court de­cided that fed­eral rail law does not usurp Cal­i­for­nia’s tough en­vi­ron­men­tal reg­u­la­tion for state-owned rail projects.

The de­ci­sion has broad sig­nif­i­cance, lawyers in the case said.

It clears the way for op­po­nents of the $64-bil­lion bul­let train to file more law­suits as con­struc­tion pro­ceeds and also al­lows Cal­i­for­ni­ans to chal­lenge other rail uses, such as the move­ment of crude oil from frack­ing.

A fed­eral court could later de­cide the mat­ter dif­fer­ently, rul­ing that U.S. law trumps state reg­u­la­tion.

But lawyers in the field said they ex­pect a sim­i­lar case pend­ing in the U.S. 9th Cir-

cuit Court of Ap­peals to be dis­missed and ex­pressed doubt that the U.S. Supreme Court would re­view last week’s rul­ing.

The high-speed rail line is sup­posed to run be­tween San Fran­cisco and Ana­heim.

So far there have been about half a dozen law­suits chal­leng­ing en­vi­ron­ment im­pact re­ports for two rail seg­ments in the Cen­tral Val­ley. Three of the suits are still pend­ing.

More law­suits are ex­pected when the rail au­thor­ity fi­nal­izes plans for con­struc­tion in the San Fran­cisco Bay Area and South­ern Cal­i­for­nia.

The Cen­tral Val­ley lit­i­ga­tion al­ready has been un­ex­pect­edly con­tentious, in­volv­ing farm­ers who lost large por­tions of their fields.

But le­gal ex­perts ex­pect an even big­ger firestorm of law­suits when en­vi­ron­men­tal im­pact re­ports are re­leased for the Sil­i­con Val­ley and parts of Los An­ge­les, pos­si­bly next year. The re­ports will re­veal where the lines will be built.

“There are likely to be a lot of peo­ple bent out of shape in those ar­eas,” said Stu­art Flash­man, an at­tor­ney who has rep­re­sented sev­eral groups and in­di­vid­u­als fight­ing high-speed rail. “There are al­ready threats of law­suits in­volv­ing the An­ge­les Na­tional For­est. It means the High-Speed Rail Au­thor­ity is nowhere near out of the woods.”

Rail au­thor­ity spokes­woman Lisa Marie Al­ley said the agency is re­view­ing what the state Supreme Court rul­ing would mean for the project.

The mat­ter of whether the bul­let train project must abide by the Cal­i­for­nia En­vi­ron­men­tal Qual­ity Act has lin­gered for years.

In 2014, the state asked the fed­eral Sur­face Trans­porta­tion Board, which reg­u­lates rail­roads, to ex­empt the project from any le­gal in­junc­tions that could stop con­struc­tion.

The board went even fur­ther, say­ing that the project was ex­empt from state law. The de­ci­sion trig­gered a fed­eral law­suit by rail op­po­nents, the case now pend­ing in the 9th Cir­cuit.

The rail au­thor­ity in the mean­time has fol­lowed both fed­eral and state en­vi­ron­men­tal laws.

The Cal­i­for­nia Supreme Court rul­ing came in law­suits filed by two en­vi­ron­men­tal ad­vo­cacy groups — Friends of the Eel River and Cal­i­for­ni­ans for Al­ter­na­tives to Tox­ics — against the North Coast Rail­road Au­thor­ity and North­west­ern Pa­cific Rail­road Co., a pri­vate com­pany that con­tracts with the au­thor­ity.

Mitch Stogner, ex­ec­u­tive di­rec­tor of the North Coast Rail­road Au­thor­ity, said the group has not de­cided whether to ask the U.S. Supreme Court to re­view the case.

He also said he did not know whether the High­Speed Rail Au­thor­ity, which lacks stand­ing to ap­peal the de­ci­sion, would be in­clined to help fi­nance a fight to the high court. The High-Speed Rail Au­thor­ity weighed in as a friend of the court.

State law­mak­ers cre­ated the North Coast Rail­road Au­thor­ity in 1989 to pro­vide freight ser­vice on a 314-mile line of de­cayed tracks in Napa, Sonoma and Hum­boldt coun­ties.

The rail­road now hauls live­stock feed, build­ing ma­te­ri­als, wood prod­ucts and liq­ue­fied pe­tro­leum gas, Stogner said, on just 62 miles of the line, from Lom­bard to Wind­sor in Sonoma County.

Amy Bricker, who rep­re­sented the river group in the case, said it was con­cerned that restart­ing rail op­er­a­tions in Eel River Canyon would pol­lute the wild and scenic wa­ter­way and en­cour­age gravel min­ing.

But Stogner said there have been no plans to run freight through the canyon be­cause the tracks there would be too costly to re­pair.

“It is a red her­ring,” he said.

Golden Gate Univer­sity Law School pro­fes­sor He­len Kang, who runs an en­vi­ron­men­tal law clinic that rep­re­sented the anti-tox­ics group, said the rul­ing means that “you have to be able to com­ply with fed­eral and state law at the same time.”

“If there is no con­flict, there is no pre­emp­tion,” she said.

In gen­eral, fed­eral laws take prece­dence over, or pre­empt, state laws — a doc­trine based on the Supremacy Clause of the U.S. Con­sti­tu­tion.

In a dis­sent to the state Supreme Court’s rul­ing, Jus­tice Carol A. Cor­ri­gan said the ma­jor­ity had cre­ated a novel le­gal the­ory to get around the fact that states may not im­pose reg­u­la­tions that in­ter­rupt rail ser­vice.

The de­ci­sion “will dis­place the long­stand­ing supremacy of fed­eral reg­u­la­tion in the area of rail­road op­er­a­tions by al­low­ing third party plain­tiffs to thwart or de­lay pub­lic rail­road projects,” Cor­ri­gan wrote.

UC Davis law pro­fes­sor Richard Frank said the Cal­i­for­nia Supreme Court al­most al­ways de­cides that state laws are not pre­empted by fed­eral ones, while fed­eral courts are more likely to say the op­po­site.

He called last week’s rul­ing “very ob­tuse” and “turgid” and said it prob­a­bly will not end the le­gal fight over whether fed­eral rail reg­u­la­tions su­per­sede state laws be­cause the de­ci­sion pro­vided “lit­tle guid­ance to pol­i­cy­mak­ers and prac­ti­tion­ers.”

The court said that fed­eral law trumps state law only for pri­vately owned rail­roads, not those owned by Cal­i­for­nia, Frank noted.

“It is go­ing to gen­er­ate more time-con­sum­ing lit­i­ga­tion,” Frank said.

LAST WEEK’S court rul­ing clears the way for op­po­nents of the $64-bil­lion bul­let train to file more law­suits as con­struc­tion pro­ceeds. Above, work is un­der­way on a viaduct over Cal­i­for­nia 99 in south Fresno.

BUL­LET TRAIN work in the Cen­tral Val­ley has led to half a dozen law­suits. Even more are likely when L.A. and Bay Area plans come out.

THE MAT­TER of whether the bul­let train project must abide by the Cal­i­for­nia En­vi­ron­men­tal Qual­ity Act has lin­gered for years.

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