Environmental lawsuits should not halt California's high-speed rail line unless it's proved to cause far more harm than good, the governor's office proposed yesterday.
Gov. Jerry Brown's (D) administration floated draft legislation that would curb the state's environmental law as it applies to initial construction of the train.
The language, circulated among green groups, would require judges before they stop development to weigh the project's impact on the state. They would be obligated to consider job losses as well as the fact that a delay could force California to forfeit $3.3 billion in federal funding.
The $68.4 billion bullet train venture brings pluses that make it worthy of special consideration, the draft bill argues.
"The high-speed rail system will link all major cities with a new state-of-the-art transportation option that will increase mobility while reducing air pollution and greenhouse gas emissions that cause global warming," the draft says. "Commencing the construction of a high-speed rail project on schedule will provide an immediate and unprecedented opportunity for California's economy."
The California Environmental Quality Act (CEQA) "has never been applied to a project of this size, complexity and phasing," the draft bill contends.
Brown's office is seeking help on CEQA as the Legislature considers whether to approve funding for initial construction on the train. Lawmakers this summer will vote on issuing $2.6 billion in state bond revenue that would be combined with the $3.3 billion in federal dollars to pay for work in California's Central Valley.
The federal money, delivered via the 2009 stimulus legislation, came with the requirement that California finish the train's first leg by 2017 or relinquish the money. The deadline forces the need for help with CEQA, the state's High-Speed Rail Authority has said (Greenwire, May 22).
The Brown administration hopes to win environmental group support before bringing the language to lawmakers. Brown's office is scheduled to meet this week with representatives from the Natural Resources Defense Council, Planning and Conservation League, and Sierra Club California to confer on the draft language.
But the proposal already is hitting opposition. The bill as written likely would prevent judges from stopping construction, some from the green groups said.
Kathryn Phillips, director of Sierra Club California, said the proposal would essentially set up a $6 billion test that lawsuits must meet, as total initial construction is valued at $6 billion.
"Everything will outweigh the environment," Phillips said. "They're setting such a high bar for what the judge has to consider that they would never be able to do an injunction."
Under the language in the draft bill, damage caused by not halting the project would have to "substantially" outweigh losses the state would suffer if work were stopped. That tilts the scale in favor of high-speed rail, said Bruce Reznik, executive director of Planning and Conservation League.
"We're concerned about tweaking CEQA on the largest infrastructure project in California's history," Reznik said.
The language in the draft proposal would make it difficult for those seeking help from the courts, said Gary Patton, an attorney representing farmers in Kings County, Calif., where construction is set to start.
"Shutting down the farms along the route, it would be very hard to prove that that was going to cause more than $6 billion worth of impact," Patton said. "But it would be pretty easy to prove that it would cause a lot of impacts, and they would be bad, and they're the kind of impacts that the California Environmental Quality Act says should be mitigated or eliminated."
Brown's office did not respond to requests for comment.
Lawmaker approval needed
Sierra Club California plans to write to the Brown administration saying that "this is unacceptable language," Phillips said. The environmental group also plans to encourage lawmakers to oppose the measure if it stays as written, she said.
It is not yet known how the Legislature would respond to the governor's request. Lawmakers in recent years have made changes to CEQA to help some projects get built more easily. But some lawmakers have warned they won't allow too much tampering with the environmental law.
"The Speaker does not favor CEQA exemptions," John Vigna, spokesman for Assembly Speaker John Perez (D), said in an email.
Vigna also said that "the speaker is committed to working with the governor and with members of the Assembly to determine the best way to realize [the high-speed rail] project."
Sen. Joe Simitian (D), chairman of the Senate Environmental Quality Committee, has said he's open to CEQA streamlining but not to "environmental shortcuts."
California Senate President Pro Tem Darrell Steinberg (D) has not had a chance to review the proposal yet, an aide said.
No challenges to EIR allowed
In addition to setting up the balancing test before the project can be stopped, the draft bill also proposes to protect the project's main environmental impact report, known as the programmatic EIR.
The High-Speed Rail Authority on April 19 deemed that EIR complete. There is still a lawsuit pending against the review, however.
The draft bill proposes that the Legislature declare that the programmatic EIR "is complete and complies with the California Environmental Quality Act ... and is not subject to further revision or review."
Reznik said he would be "hard pressed to accept that programmatic EIR as is." Planning and Conservation League is involved in one of the lawsuits challenging the document.
Reznik said he is sympathetic to the Brown administration, however. The governor, Reznik said, is trying to work within the parameters of language in the federal grant application as well as Proposition 1A, the 2008 ballot measure that launched high-speed rail.
The federal grant that gave California the $3.3 billion requires construction to start in the Central Valley, a mandate opposed by those who believe money would be better spent in an urban area. The 2017 deadline of the award also ties the state's hands on delaying the work, Reznik said.
In addition, Reznik said, Prop 1A featured several requirements including the number of stations and where some would need to be located.
"They were dealt a bad hand," Reznik said of the administration. "They're trying to deal with it."
The draft bill would apply only to initial construction of high-speed rail, and as written, it would sunset in five years. But it would affect any lawsuit filed after January of this year.