Attorneys for and against California’s high-speed rail project made their final arguments Thursday to a Sacramento County Superior Court judge who will decide whether the proposed bullet-train system complies with the requirements set out in 2008 by Proposition 1A.
It’s taken more than four years for the lawsuit, filed in late 2011 by Kings County farmer John Tos, Hanford homeowner Aaron Fukuda and the Kings County Board of Supervisors against the California High-Speed Rail Authority, to reach Thursday’s trial. And both sides are going to be waiting a little longer, as Judge Michael Kenny takes time – possibly several weeks or more – to digest the arguments before rendering a decision. No matter how Kenny eventually rules, it’s a near certainty that whichever side loses will appeal the decision to the state’s court of appeal.
Stuart Flashman, an Oakland lawyer for the Kings County plaintiffs, and Deputy Attorney General Sharon O’Grady, representing the rail authority and the state, wrangled for more than two hours over key questions posed by Kenny. Those include:
▪ Whether a “blended” system on which high-speed trains would share tracks with Caltrain commuter trains along the San Francisco Peninsula blocks the authority from using any of the $9.9 billion in Proposition 1A bonds.
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▪ Does a blended system mean that the high-speed trains cannot comply with requirements for trip times and train frequency?
▪ How much flexibility does the rail authority have in interpreting the law’s requirements that the system be “economically viable?”
Financial viability is a key point of disagreement between the state and its foes. Flashman contended that the issue involves much more than whether the train system can cover its operating and maintenance costs once it is built and running.
How can you say it’s financially viable when you can’t even build it? If you can’t build it, it obviously can’t operate at a profit.
Attorney Stuart Flashman, represeneting Kings County high-speed rail opponents
“They’re building a first section called the IOS South from Merced to Burbank, and they don’t have the money to build it,” Flashman said, pointing to the authority’s $31 billion estimate for that part of the system. “They’re nowhere close. How can you say it’s financially viable when you can’t even build it? … If you can’t build it, it obviously can’t operate at a profit.”
O’Grady said the authority “is entitled to rely on its experts” whose work has been scrutinized by federal and state reviewers. “The authority has worked very hard to get credible numbers, and we believe we have more than satisfied the standard.”
Kenny noted that the law appears to grant “extraordinary deference” to the rail authority in determining the financial viability of the route or its segments. Flashman agreed. “It does have deference; it says ‘In the authority’s determination it shall be financially viable,’ ” he said. “But it doesn’t say, ‘You’ve got free rein to do whatever the hell you feel like in terms of financial viability.’ It’s still got to meet that requirement.”
“What they’re doing is something they can’t finish, at least at the moment,” Flashman added. “They don’t have a way of finishing it, and that’s not financially viable.”
The rail agency is using $3 billion in federal stimulus and transportation funds, and money from the state’s greenhouse-gas-reduction program estimated at about $500 million or more per year, for its construction in the San Joaquin Valley. Lisa Marie Alley, a spokeswoman for the rail authority, said the agency is not yet using Proposition 1A bond funds for construction in the Valley as it focuses on using its federal grants first. Bond expenditures could come later this year or in 2017, she said.
Flashman told Kenny that the blended system between San Jose and San Francisco represents a significant departure from what voters were told they were approving in the November 2008 election. Environmental assessments in 2005 and 2008 both indicated that the state was planning a line of fully dedicated tracks on the peninsula. The blended system didn’t surface until 2012, when the change was made into law by the state Legislature. Flashman argued that Proposition 1A isn’t just a bond measure limiting how the money is to be spent, but is an overall set of requirements for the entire system regardless of where the money comes from.
Because of that, he said, not only should the project be barred from using Proposition 1A bond money, it should not be permitted to be built at all. “If you’re not going to do it (with dedicated tracks), if you’re going to do something different, you should go back to the voters,” Flashman said. “The voters had an expectation that they were approving the project that was described in the 2005 and 2008 (environmental reports).”
This is a small piece of a very large system; it’s saving $30 billion to go with a blended system, which is in the interest of the taxpayers and the voters.
Deputy Attorney General Sharon O’Grady, representing the California High-Speed Rail Authority
O’Grady countered that the blended system is legal. “The Legislature has dictated a blended system on the peninsula,” she said. “The Legislature was empowered to amend this bond act … It’s not a substantial change in the project … This is a small piece of a very large system; it’s saving $30 billion to go with a blended system, which is in the interest of the taxpayers and the voters.”
She added that a state appeals court already determined “that the bond act only governs bond funds.”
Flashman and O’Grady also clashed on the issue of trip times and train frequency, offering different interpretations of the law’s requirements.
Flashman said the reports on which the authority bases its claims of being able to make a 2-hour-40-minute trip between San Francisco and Los Angeles are flawed because they don’t account for trains having to slow in urban areas or on downhill grades coming over the Tehachapi Mountains between Bakersfield and Palmdale. He added that the shared tracks on the San Francisco Peninsula also sabotage the ability to get from San Francisco to San Jose in 30 minutes.
O’Grady said it’s impractical for opponents to speculate on trip times on the peninsula, over the Tehachapis and in other areas because the system has not been fully designed. But, she added, the authority has relied on ample expertise in making its decisions. “All (the opponents) are doing is disagreeing with the authority’s experts,” she told Kenny. “That’s not a basis for overturning the authority’s judgment.”
Flashman was unmoved. “The measure was very specific in saying on trip time, you’ve got to be able to get from Los Angeles to San Francisco or vice versa in 2 hours, 40 minutes,” he said after the hearing. “They can’t do it.”
While project opponents are seeking a court order to stop the project in its tracks, O’Grady urged the judge to continue to allow the authority to continue its efforts. “The bond act is intended to build a high-speed rail system, not to stop it,” O’Grady told the judge. “The authority is working as hard as it can and believes that it can and will comply with the requirements of the bond act. But fundamentally, this is a project that the bonds are supposed to get built, and not be halted.”