Dan Morain

Dan Morain: Denham's ploy backfires on high-speed rail

Dan Morain
Dan Morain

Rep. Jeff Denham has tried gamely to block California's high-speed rail project. Now, it seems, he may have tripped over himself.

In the past, the San Joaquin Valley Republican has called for a redo of the 2008 statewide vote authorizing California to spend $9.95 billion to help build the rail project, and has sought to divert the money to widen Highway 99, to no avail.

Denham had more success in February when he used his status as chair of the House subcommittee on railroads to urge that the U.S. Surface Transportation Board, which regulates interstate railroads, decide whether it had jurisdiction over California's intrastate rail project.

While not telling the board to assert its authority, the second-term congressman wrote that "it is imperative that the authorities set forth in the Interstate Commerce Act, including the requirement for construction authority, be followed." The effort worked, though perhaps not as Denham had wished.

Initially, Gov. Jerry Brown's administration, the project's leading advocate, fought federal oversight. But after the Surface Transportation Board issued its opinion in June asserting control over the project, Brown decided that the board's involvement wasn't such a bad idea after all.

The reason: Brown and the California High-Speed Rail Authority conclude that so long as the feds are in control, they need not comply with the California Environmental Quality Act, the nettlesome state law that is cited regularly to slow and stop all manner of projects from being built.

Acting on the governor's behalf, California Attorney General Kamala Harris took the remarkable step of writing to California Court of Appeal earlier this month essentially ceding state rights to the feds.

Once the federal board asserted its authority, Harris' deputy wrote, "the Interstate Commerce Commission Termination Act preempts a California Environmental Quality Act remedy in this appeal."

Like any self-respecting state officials, Brown and Harris normally would fight federal efforts to preempt state law. But not in this upside-down instance. Denham, like most Republicans, ordinarily would oppose federal meddling in state affairs. But not this time.

By sending the letter that led to the Surface Transportation Board's involvement, Denham, who didn't respond to my requests for an interview, managed to undermine his allies – or at least the enemies of his enemies – in the fight against the rail project.

San Francisco Peninsula cities including Atherton and Palo Alto invoked the California Environmental Quality Act when they sued to block the train from running through their fancy towns. Now, the cities' lawyers must convince the appellate court that the state law still applies.

"It is pretty outrageous, frankly," Stuart Flashman, the Oakland attorney who represents Atherton, said of Brown and Harris' stand. "One of the main things the state attorney general's office does is to defend the state's interest."

As governor, Brown has been no fan of the California Environmental Quality Act, famously saying he had never met an exemption to the act that he didn't like. It wasn't always that way.

In 2007, Attorney General Brown invoked the act to compel Fresno and other locales to consider the impact of development on global warming.

None other than then-state Sen. Denham took a leading role in the opposition to Brown's effort, pointing out that the state had no regulation in place for local governments to follow.

"It's like the cop stopping you for speeding and yet there's no speed limit," Denham said back then.

Politics change, as do principles, depending on circumstances.

Jeff Morales, the High-Speed Rail Authority's chief executive, seems to have adjusted quite nicely to federal oversight. He signed the first contracts last week with three major builders of the first leg, from Madera to Fresno, of the proposed 800-mile intrastate rail project.

"We don't see CEQA as necessary to provide environmental protection," Morales told me. The state will comply with the National Environmental Protection Act, but that's far less burdensome than the state law. Besides, he said in a sentiment echoed by the Surface Transportation Board, high-speed rail "at its core is a plus for the environment."

There is no easy way to get from Sacramento or Coastal California to Fresno or Bakersfield, except by car, and that's definitely not green.

Plenty of questions remain about the high-speed-rail project. Last week, a Superior Court judge in Sacramento, acting in a separate suit, said the state failed to abide by the terms of the 2008 ballot measure.

Maybe the train will get derailed. Maybe it will stay on track. It certainly will be litigated more. But as it stands, the California Environmental Quality Act, which would have created one of the steepest hurdles, doesn't apply, thanks largely to one of the most ardent foes of high-speed rail, Jeff Denham.

Follow Dan Morain on Twitter @danielmorain. Back columns, www.sacbee.com/morain.