California has long contemplated a high-speed rail system connecting its southern and northern regions. In 1996 when the Legislature established defendant California High-Speed Rail Authority (the Authority), it declared the need for an intercity rail system operating at high speeds to complement the existing infrastructure of highways and airports. (Pub. Util. Code, § 185010.) As plans for a high-speed rail system developed, the system's alignment — simply put, where to lay the track — from the Central Valley to the San Francisco Bay Area became an issue. At the heart of the dispute in this case is the Authority's decision that trains travelling between those destinations should travel through the Pacheco Pass rather than further north at the Altamont Pass.
Petitioners challenge the adequacy of the revised final program environmental impact report/environmental impact statement (PEIR/EIS) and the approval of the Pacheco Pass network alternative as the route for the high-speed train (HST) system to connect the San Francisco Bay Area and the Central Valley. They contend the revised final PEIR violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it (1) provides an inadequate analysis of the vertical profile options for alignment — simply put, where to elevate the track — along the San
After this case was originally calendared for oral argument, the Authority asked us to dismiss it, contending that federal law preempts any CEQA remedy. The Authority makes this argument because a federal board recently assumed jurisdiction over the HST. As we will explain, we need not decide the broader question of federal preemption because we find the specific circumstances of this case establish an exception to federal preemption under the market participation doctrine.
On the merits, we hold the Authority properly used a PEIR and tiering and deferred site-specific analysis such as the vertical alignment to a later project EIR. The challenge to the revenue and ridership modeling presents a disagreement among experts that does not make the revised final PEIR inadequate. The Authority studied an adequate range of alternatives. It was not required to analyze the Setec alternatives because they were infeasible or substantially similar to those already studied. Accordingly, we shall affirm.
In 1993, the Intercity High-Speed Rail Commission (Commission) was established to develop a framework for implementation of a high-speed rail system. As part of a study, the Commission considered three mountain passes (the Altamont, the Pacheco, and the Panoche) to link the Central Valley to the San Francisco Bay Area by rail. It recommended the Altamont Pass. "This option generates higher ridership and revenue for the system, and is less costly to construct than the other two mountain passes considered."
In 1996, the Authority was established to continue planning for the high-speed rail system. (Pub. Util. Code, § 185000 et seq.) At the end of 1999, the Authority issued a final report on the corridor evaluation. The report noted the Altamont Pass corridor, which turned west from the Central Valley south of Stockton, had a faster travel time than the Pacheco Pass corridor. It did, however, require a branch alignment, or additional track(s), to provide train service to San Jose, which resulted in less frequent service to both San Francisco and San Jose unless additional trains were provided. Environmental issues included a substantial impact to farmland and impacts to threatened and endangered species.
In 2005, the Authority directed its staff to proceed with the preparation of a separate program-level EIR to identify a preferred alignment within the broad corridor between and including the Altamont Pass and the Pacheco Pass for the HST system segment connecting the San Francisco Bay Area to the Central Valley. After receiving over 400 comments on the draft PEIR, in 2008 the Authority prepared a final PEIR/EIS, which identified the Pacheco Pass as the preferred alternative. The Pacheco Pass alternative (1) minimized impacts on wetlands, waterbodies, and the environment; (2) best served the connection between Northern and Southern California; (3) best used the Caltrain Corridor (between San Jose and San Francisco); and (4) was strongly supported by the Bay Area region, cities, agencies, and organizations.
Petitioners Town of Atherton, Planning and Conservation League, City of Menlo Park, Transportation Solutions Defense and Education Fund, California Rail Foundation, and Bayrail Alliance (collectively Atherton I petitioners) petitioned for a peremptory writ of mandate to set aside certification of the final revised PEIR. The Atherton I petitioners contended the final revised PEIR was inadequate because it failed to include an adequate description of the project and feasible alternatives; it failed to adequately identify and mitigate the project's significant impacts; its alternatives analysis was inadequate and predisposed toward selection of the Pacheco Pass alternative; and the Authority refused to recirculate the draft PEIR after the Union Pacific Railroad announced its opposition to allowing use of its right-of-way.
The trial court found the Atherton I petitioners met their burden of showing certain inadequacies in the final PEIR. These inadequacies related primarily to the project description and the Union Pacific Railroad's opposition to allowing the project to use its right-of-way. The trial court issued a peremptory writ of mandate commanding the Authority to rescind and set aside its
The Authority filed an initial return to the writ, indicating the Authority had rescinded its prior approvals relating to the project.
The Atherton I petitioners petitioned for a writ of coram nobis, seeking to vacate the prior judgment. They contended newly discovered evidence that revealed the revenue and ridership modeling was obviously and fatally flawed had been improperly withheld.
The trial court denied the petition. It found the Atherton I petitioners failed to establish both that the new evidence would cause a probable different result and that the new evidence could not have been discovered with due diligence. Further, the court found the Atherton I petitioners had an alternate remedy in the CEQA compliance procedure.
In September 2010, the Authority certified the revised final PEIR as in compliance with CEQA, and approved the CEQA findings of fact and statement of overriding considerations, and adopted the mitigation monitoring and reporting program. It also approved the Pacheco Pass network alternative.
The Authority filed a supplemental return to the writ. The Authority declared that it had complied with the writ and requested that the writ be discharged.
The Atherton I petitioners objected to the Authority's supplemental return to the writ, contending the Authority had failed to comply fully with the writ. They alleged the revised final PEIR was inadequate for several reasons. First, the project description was inadequate because it included inaccurate ridership and revenue figures from a defective model. Second, the revised final PEIR failed to disclose significant impacts resulting from removing the HST right-of-way from the Union Pacific Railroad right-of-way, especially the impact of the removal of two lanes from the Monterey Highway and the need for a vertical alignment through cities on the Peninsula. Third, the Atherton I petitioners objected to the analysis of alternatives and claimed that new information required recirculation of the PEIR. They explained that a group known as the Altamont Advocates had contracted with a French high-speed rail expert consulting company, Setec, to identify a feasible Altamont Pass alignment. Setec also provided material on the feasibility of a new Dumbarton rail bridge to serve the Altamont Pass route. The Atherton I petitioners complained that the Authority "brushed these new alternatives and the new information aside."
A second group of petitioners included all of the Atherton I petitioners, except Bayrail Alliance, and added the City of Palo Alto, Community Coalition on High-Speed Rail, MidPeninsula Residents for Civic Sanity, and Patricia Hogan-Giorni (the Atherton II petitioners). They petitioned for a writ of mandate, seeking to set aside approvals for the project, including the determination to choose the Pacheco Pass alignment. They raised many of the same points as the Atherton I petitioners.
The parties stipulated that the Atherton I case would address whether the Authority complied with the writ, while the Atherton II case would address whether the Authority complied with CEQA in the revised final PEIR. In addition, those parties who were petitioners in both Atherton I and Atherton II would file a request for dismissal with prejudice from Atherton II.
The trial court agreed with the Atherton I petitioners, finding the revised final PEIR failed to adequately address the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment. It rejected the remaining contentions of the Atherton I petitioners. The court found it proper to defer analysis of the impacts of the vertical alignment until the second-tier project analysis. The challenges to the modeling failed; the court found the dispute was a "classic disagreement among experts that often occurs in the CEQA context."
Due to the deficiencies in analysis of the traffic impacts on Monterey Highway, the court denied the motion for discharge of the writ. The court issued a supplemental peremptory writ ordering the Authority to rescind and set aside the resolution certifying the revised final PEIR (Atherton II).
Dissatisfied with only a partial victory, both the Atherton I petitioners and the Atherton II petitioners (collectively petitioners) appealed.
The Authority contends this case must be dismissed because federal law, specifically the ICC Termination Act of 1995 (ICCTA) (49 U.S.C. § 701 et seq.), preempts state environmental law, including CEQA, in this case.
We agree with amicus curiae Citizens for California High-Speed Rail Accountability (CCHRA) that "[p]reemption under ICCTA is a complex, difficult, and controversial subject." We do not find the answer to the question of whether the ICCTA preempts CEQA in this case as certain as the Authority argues. We need not wade into the various complexities and intricacies presented by the broader question of federal preemption, because on the specific record before us it is clear that an exception to preemption, namely the market participation doctrine, applies. Here, it is the sole responsibility of the state to determine the route of the HST, as well as to acquire the necessary property, and construct and operate the HST. Due to the state's proprietary role with respect to the HST, as well as the provisions of Proposition 1A (the voter-approved initiative bond measure to fund the HST) and the Authority's established practice of complying with CEQA, the market participation doctrine applies.
"Effective January 1, 1996, the ICCTA abolished the Interstate Commerce Commission (ICC) and created a new Surface Transportation Board (STB) to regulate, inter alia, rail transportation in the United States. [Citations.] The purpose of the ICCTA is to `build[] on the deregulatory policies that have promoted growth and stability in the surface transportation sector.' [Citation.] With respect to rail transportation, the ICCTA seeks to implement a `[f]ederal scheme of minimal regulation for this intrinsically interstate form of transportation,' and to retain only regulations `that are necessary to maintain a "safety net" or "backstop" of remedies to address problems of rates, access to facilities, and industry restructuring.' [Citations.]" (Elam v. Kansas City Southern Railway Co. (5th Cir. 2011) 635 F.3d 796, 804 (Elam).)
In March 2013, the Authority filed with the Surface Transportation Board (STB) a petition for exemption from the prior approval requirements of 49 United States Code section 10901 to construct an approximately 65-mile dedicated high-speed passenger rail line between Merced and Fresno, California (the first of nine sections of the HST). Concurrently, the Authority filed a motion to dismiss the petition, arguing that the STB lacked jurisdiction because the HST would be located entirely within California, would provide only intrastate transportation, and was not part of an interstate rail network. (California High-Speed Rail Authority — Construction Exemption — in Merced, Madera and Fresno Counties, Cal. (STB, Apr. 18, 2013, No. FD 35724) 2013 STB Lexis 126, p. *2).) The STB denied the motion to dismiss, finding it had jurisdiction over construction of the HST. (Id. at pp. *3-*4.)
In a June 13, 2013, decision, the STB set forth its reasons for finding it had jurisdiction over the HST. "Under 49 U.S.C. § 10501(a)(2)(A), the Board has jurisdiction over transportation by rail carrier between a place in a state and a place in the same state, as long as that intrastate transportation is carried out `as part of the interstate rail network.'" (California High-Speed Rail Authority — Construction Exemption — in Merced, Madera and Fresno Counties, Cal. (STB, June 13, 2013, No. FD 35724) 2013 STB Lexis 180, p. *24 (STB June Decision).) The STB concluded that due to the interconnectivity of the HST system with Amtrak lines, the HST would be constructed as part of the interstate rail network and, therefore, the STB had jurisdiction. (Ibid.)
In late June 2013, after we had calendared this case for oral argument, the Authority requested from us a continuance of oral argument and permission to file a supplemental brief based on the STB decision we described ante. The Authority requested additional time to examine the STB's jurisdictional decision and its potential application to this case. The Authority cited to City
Petitioners opposed the request to continue, arguing, inter alia, that the issue of preemption had been waived by the failure to raise it in the trial court.
We granted the continuance and requested supplemental briefing. We asked the parties to brief the answers to two questions: (1) Does federal law preempt state environmental law with respect to California's high-speed rail system? and (2) Assuming federal law does, in fact, preempt state law in this area, is the preemption in the nature of an affirmative defense that is forfeited if not raised in the trial court or is the preemption jurisdictional in nature?
The Authority's supplemental brief answered that the ICCTA preempted a CEQA remedy in this appeal and the preemption is jurisdictional in nature. Petitioners answered that federal preemption under the ICCTA did not apply to the Authority's compliance with CEQA because CEQA was informational rather than regulatory and because the market participation exception to preemption applied. Petitioners further asserted that because the Authority's compliance with CEQA was not jurisdictionally preempted, any preemptive claim that the project did not have to comply with CEQA was forfeited.
Relying on City of Auburn, supra, 154 F.3d 1025, the Authority contends that CEQA is an environmental preclearance statute that is facially preempted by the ICCTA. In City of Auburn, a railroad sought to reacquire a segment of the Stampede Pass rail line and to repair and improve it. (154 F.3d at
The City of Auburn challenged the STB decision. It argued the legislative history of the ICCTA established that Congress intended to preempt only economic regulation, not the traditional state police power of environmental review. (City of Auburn, supra, 154 F.3d at p. 1029.) The Ninth Circuit disagreed; it found no evidence that Congress intended states to have any role in the regulation of railroads. (Id. at p. 1031.) Further, given the broad language of 49 United States Code section 10501(b)(2), it found "the distinction between `economic' and `environmental' regulation begins to blur. For if local authorities have the ability to impose `environmental' permitting regulations on the railroad, such power will in fact amount to `economic regulation' if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line." (City of Auburn, at p. 1031.)
In Green Mountain, supra, 404 F.3d 638, the railroad proposed to build transloading facilities (to transfer goods from one mode of transportation to another) and sought a declaration that Vermont's environmental land use law, mandating a preconstruction permit for land development, was preempted by the ICCTA. Relying on City of Auburn, the Second Circuit found preemption. (Green Mountain, supra, 404 F.3d at pp. 642-643.) The court noted that other federal courts and the STB had recognized that the ICCTA preempts most state and local preconstruction permit requirements. (404 F.3d at p. 642.)
Under circumstances that differ from those here and involve a private railroad, the STB has found the ICCTA preempts CEQA, relying on City of Auburn. In DesertXpress Enterprises, LLC — Petition for Declaratory Order (STB, June 27, 2007, No. FD 34914) 2007 STB Lexis 343, the petitioner proposed to construct an approximately 200-mile interstate high-speed passenger rail system between Victorville, California, and Las Vegas, Nevada. It
We do not deem City of Auburn to provide the definitive answer to the question of federal preemption in this case. Although City of Auburn spoke of "environmental review laws" (City of Auburn, supra, 154 F.3d at p. 1027), which would appear to include CEQA, the case concerned only permitting laws (City of Auburn, at pp. 1029, 1031), as did Green Mountain, supra, 404 F.3d at page 643. The STB decision under review in City of Auburn noted it was the permitting "process itself" that was "objectionable." (Kings County, WA — Petition for Declaratory Order — Burlington Northern Railroad Company — Stampede Pass Line (STB, Sept. 25, 1996, No. FD 33095) 1996 STB Lexis 236, p. *11.) It is clear that denial of a permit can be "`used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the [STB] has authorized,'" and thus the permitting process is preempted. (Adrian, supra, 550 F.3d at p. 540) It is less clear and certainly subject to dispute whether requiring review under CEQA before deciding on the alignment of the HST from the Central Valley to the San Francisco Bay Area has a comparable potential effect to deny the railroad the ability to conduct its operations and activities.
In City of Auburn, the court was reviewing a decision of the STB that found the permitting laws at issue preempted by the ICCTA. (City of Auburn, supra, 154 F.3d at p. 1027.) As we noted ante, here the STB June Decision made no finding as to preemption, nor was it asked to. Indeed, the STB June Decision, which addressed only the portion of the HST between Merced and Fresno (and not the alignment at issue here), did not mention preemption. The decision came after extensive state and federal environmental review had been completed, including preparation of an environmental impact study. (STB June Decision, supra, 2013 STB Lexis 180, at p. *13.) Further, federal cases subsequent to City of Auburn have found ICCTA does not preempt all state and local environmental laws, as discussed ante. The D.C. Circuit even described City of Auburn as "seeming to apply a broader preemption rule." (Fayus, supra, 602 F.3d at p. 451.)
We need not, however, wade further into these weeds. Assuming without deciding that the ICCTA preempts CEQA as to the HST, at least one exception to preemption applies here. Their applicability stems from the nature of the project at issue here. We are not faced with a private railroad company seeking to construct a rail line without having to comply with state regulations. Rather, it is the state that is constructing the rail line, financed by
The market participation doctrine recognizes considerations of state sovereignty, the state's role "as guardian and trustee for its people," and the right of a private business to exercise discretion as to those with whom it will deal. (Reeves, Inc. v. Stake (1980) 447 U.S. 429, 436 [65 L.Ed.2d 244, 252, 100 S.Ct. 2271].) "Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause." (Id. at p. 439 [65 L.Ed.2d at pp. 252-253].) Analysis in a market participation case involves "a single inquiry: whether the challenged `program constituted direct state participation in the market.'" (Id. at p. 436, fn. 7 [65 L.Ed.2d at p. 250].)
"In distinguishing between proprietary action that is immune from preemption and impermissible attempts to regulate through the spending power, the key under Boston Harbor is to focus on two questions. First, does the challenged action essentially reflect the entity's own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances? Second, does the narrow scope of the challenged action defeat an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem? Both questions seek to isolate a class of government interactions with the market that are so narrowly focused, and so in keeping with the ordinary behavior of private parties, that a regulatory impulse can be safely ruled out." (Cardinal Towing v. City of Bedford, Texas (5th Cir. 1999) 180 F.3d 686, 693 (Cardinal Towing).)
Petitioners, as well as amici curiae CCHRA and POH, argue the first prong of the Cardinal Towing test is met. Undergoing full CEQA review of the decision for the alignment of the Central Valley to Bay Area portion of the HST serves the state's interest in reducing adverse environmental impacts as part of its proprietary action in owning and constructing the HST.
Although the Authority notes there is no case applying the market participation doctrine to defeat a claim of preemption under the ICCTA, it does not argue that the doctrine never applies to defeat such preemption.
The Authority asserts it has not engaged in any proprietary action in complying with CEQA in the preparation of the final revised PEIR at issue here. "[T]he Authority has not acted in a proprietary capacity to develop its own rules or standards for environmental review of the programmatic route decision or the high-speed train project in general. In preparing the Program EIR, the Authority was simply complying with a state environmental review statute, CEQA, in good faith until the STB assumed jurisdiction over the project, thereby preempting any further CEQA remedy."
Preliminarily, we take issue with the Authority's view that it was the STB June Decision that preempted CEQA. We agree with amicus curiae Union Pacific Railroad Company that the basis for preemption is solely the language of the ICCTA, not the discretion of the STB. (See Green Mountain, supra, 404 F.3d at pp. 641-642.)
To further establish the Legislature's intent that the Authority must comply with CEQA, amicus curiae POH requests that this court take judicial notice of a letter from Senator Mark Leno (the Leno Letter) contained in the Senate Daily Journal for the 2011-2012 Regular Session at pages 4447-4448. The Leno Letter is intended to clarify certain matters addressed in Senate Bill No. 1029 (2011-2012 Reg. Sess.), which amended the Budget Act of 2012, pertaining to funds for the HST. One provision in Senate Bill No. 1029 (2011-2012 Reg. Sess.) contained identical language to that in Proposition 1A (Sts. & Hy. Code, § 2704.08, subd. (c)(2)(K)) — completion of "all necessary project level environmental clearances necessary to proceed to construction." (Stats. 2012, ch. 152, § 3.) The Leno Letter explains, "It is the intent of this provision that no funds appropriated under this item shall be encumbered for construction of a project prior to compliance with CEQA and the National Environmental Policy Act." (Sen. Daily J. (2011-2012 Reg. Sess.) p. 4448.)
The Authority opposes this request, claiming the Leno Letter is not relevant.
As we discussed briefly ante, the Authority contends that it alone can invoke the market participation doctrine as an exception to federal preemption of CEQA. It notes that petitioners and amici curiae cite only cases where the doctrine was used defensively by a public entity to protect actions it elected to take in the market. It provides no authority supporting the argument that the power to "invoke" the doctrine is reserved for it to selectively assert in order to exempt those projects of its choosing from federal preemption. This case is unusual to say the least; the state entity, represented by the state's Attorney General, is inexplicably arguing for federal preemption instead of defending the application of state law. We would better understand if the Authority's position was that federal law preempts CEQA and there is nothing the state can do to change that result — like it or not, the law is the law and all must abide by it. The Authority, however, admits the market participation doctrine could apply, apparently if the state chose not to oppose its application, and it "remains free to assert the market participant exception to federal preemption in exercising its proprietary judgment and discretion." The Authority's position appears to be that it alone has discretion to decide whether to require its project, the HST, to comply with CEQA. It argues that forcing it to "take actions that the Authority in its discretion law [sic] has elected not to pursue, would turn the market participation doctrine on its head." In making this argument, the Authority ignores that its power is circumscribed by the provisions of
Finally, the Authority contends the market participation doctrine "is not triggered by the presence of a generally applicable state regulatory law — here CEQA — standing alone." It relies on a series of cases brought against DHL in Florida, New York and California under their respective false claims acts (the Grupp cases). In DHL Express (USA), Inc. v. State ex rel. Grupp (Fla.Dist.Ct.App. 2011) 60 So.3d 426 (Grupp), the State of Florida contracted with DHL to provide courier services; the contract permitted DHL to impose aviation and diesel fuel surcharges. Grupp and Moll brought suit against DHL under the Florida False Claims Act, contending DHL improperly billed for surcharges. DHL moved to dismiss, contending the action was preempted by federal law. (60 So.3d at p. 427.) Grupp and Moll argued their suit did not fall within the preemption provisions of federal law, and if it did, the market participant exception applied. (Id. at p. 428.)
The Florida court found preemption under the "sweeping reach in the preemption clauses" of federal law. (Grupp, supra, 60 So.3d at p. 428.) Although the court found Florida acted as a market participant in contracting with DHL, "it acts as a regulator in authorizing suits under the False Claims Act which, as noted above, serve to deter future behaviors on the part of the defendants. [Citation.] In the latter role, the state (and respondents' on the state's behalf) is not a market participant." (Id. at p. 429.)
The New York Court of Appeals reached the same result in a related case, State of New York ex rel. Grupp v. DHL Express (USA), Inc. (2012) 19 N.Y.3d 278 [947 N.Y.S.2d 368, 970 N.E.2d 391]. There, Grupp and Moll brought a similar action against DHL under the New York False Claims Act (FCA). (State of New York ex rel. Grupp, at p. 281.) As in Florida, the court found federal preemption and that the market participation doctrine did not apply. (Id. at pp. 285-286.) The court explained that although New York acted in a proprietary capacity in procuring the services of DHL, the FCA, with its civil penalties and treble damages, "evinces a broader punitive goal of deterring fraudulent conduct against the State. That is, instead of compensating the
We find these cases distinguishable. Preliminarily, we note that in none of the Grupp cases did the court rule that only the state could invoke the market participation doctrine. Further, in this case both the law at issue and the effect of applying the market participation doctrine are different than in the Grupp cases. Unlike the false claims acts at issue in the Grupp cases, CEQA has no provision for civil penalties or treble damages; CEQA has no intent to punish and deter wrongdoing. The purpose of CEQA is "to protect and maintain California's environmental quality." (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 106 [126 Cal.Rptr.2d 441].) While the plaintiffs in the Grupp cases sought to regulate the behavior of a third party, DHL, the remedy sought here would apply only to this final revised PEIR. Here, application of the market participation doctrine will serve to regulate only the state's own behavior, and such regulation was agreed to by the state and required by Proposition 1A.
Petitioners contend the revised final PEIR was inadequate because it failed to identify significant new or increased impacts due to the elevated vertical alignment of the HST through a portion of the Peninsula.
The Authority explained that the revised final PEIR was a first-tier program EIR/EIS, focusing on the broad policy choices ripe for decision: which network alternative and alignment alternatives should connect the Bay Area to the Central Valley and which station location options should be chosen. "The focus of the analysis is the programmatic environmental impacts associated with different network alternatives to connect the Bay Area to the Central Valley for the HST system. The network alternatives and station location options are defined conceptually, and the level of detail for impacts analysis and mitigation strategies is commensurately broad and general." A second-tier EIR would provide more detailed, site-specific impacts analyses. Accordingly, the PEIR contained only a general discussion of the project's impacts relating to aesthetics and visual resources and noise and vibration.
One comment to the revised draft PEIR had been that the alignment of the HST through the Peninsula was likely to be by means of aerial viaducts or raised berms and elevated trains posed problems in residential neighborhoods. The Authority responded: "The Bay Area to Central Valley High-Speed Train HST Program environmental process did not select a vertical alignment. However, the precise alignment and profile options for the HST system in the Caltrain Corridor will be evaluated and refined as a part of the project-level preliminary engineering and environmental review if this corridor moves forward."
Because the trial court denied the Atherton I petitioners' request for a stay of project-level environmental studies, the Authority continued analysis at the project level while the revised final PEIR was being prepared. A June 2010 preliminary alternatives analysis report indicated that various alternative vertical alignments — such as aerial viaduct, berm, at grade, covered trench/tunnel, and deep tunnel — were carried forward for additional study and analysis.
In August 2010, a month before the September 2010 certification of the revised final PEIR, the Authority issued a supplemental alternatives analysis report (SAAR) as part of its project-level analysis. The SAAR concluded that
For subsection 4B(2), the SAAR found a deep tunnel impractical due to ground conditions, construction issues, and costs. A covered trench and tunnel required a greater right-of-way than an aerial structure and required addressing significant ventilation and safety issues. For the 4C portion through Redwood City, the profile had been developed to satisfy the city's request that Whipple Road remain at its existing elevation. A short trench section might be possible in downtown if the Whipple Road elevation were modified.
The trial court rejected petitioners' argument that the Authority was required to address the impact of the project-level decision for aerial viaducts in the program-level EIR. The court found the Authority properly used tiering in its analysis of the project. Under the tiering scheme, the Authority could properly defer analysis of site-specific details, such as the aerial viaduct vertical alignment, to the second-tier, project-level analysis.
On appeal, petitioners contend tiering is appropriate only when the impacts are not determined by the first-tier approval decision. They assert that the SAAR eliminated all possible vertical alignments for the Belmont-San Carlos-Redwood City corridor except one, the aerial viaduct. They contend the SAAR showed that the decision to use the Pacheco Pass route mandated the use of aerial viaducts in these areas. Thus, the elevated alignment was a foreseeable part of the future project and should have been discussed in the PEIR, and not deferred to the project-level analysis.
"Program EIR's are commonly used in conjunction with the process of tiering. [Citation.] Tiering is `the coverage of general matters in broader EIRs (such as on general plans or policy statements) with subsequent narrower EIRs....' ([CEQA Guidelines,] § 15385.) Tiering is proper `when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports.' [Citations.]
At issue in Bay-Delta was the adequacy under CEQA of a program EIR/EIS (PEIS/R) for a comprehensive plan, the CALFED program (the CALFED Program), to restore the ecological health and improve the management of Bay-Delta water. (Bay-Delta, supra, 43 Cal.4th at p. 1151.) One of the challenges was that it lacked sufficient detail regarding the sources of water to implement the CALFED Program. The high court held the PEIS/R was sufficient and it did not need to identify more specifically the potential water sources and analyze the impacts of supplying water from each source. (Id. at p. 1169.) It was a program EIR used in conjunction with tiering and consistent with its function as a first-tier document it identified potential sources of water and discussed the impacts of taking water from these sources in general terms. (Id. at pp. 1170-1171.) The court noted that the
Another issue in Bay-Delta was whether the PEIS/R failed to include details about a second-tier project, the environmental water account or EWA, contained in the action framework (Action Framework), released shortly before certification of the PEIS/R. The Action Framework specified two actual sources of water for the EWA. (Bay-Delta, supra, 43 Cal.4th at p. 1174.) The high court held the specific EWA details in the Action Framework need not have been included in the PEIS/R. "The PEIS/R contained a level of detail appropriate to its first-tier, programmatic nature." (Id. at p. 1176.)
In reaching its conclusion, the Bay-Delta court relied on the analysis in Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729 [22 Cal.Rptr.2d 618] (Al Larson). As described by Bay-Delta, "At issue in Al Larson was the propriety of deferring analysis to future project EIR's for a city's port development plan. [Citation.] The plan proposed the use of six anticipated projects to develop the port to meet increased demand for commercial cargo handling. [Citation.] The Long Beach Board of Harbor Commissioners chose, however, to defer approval on specific sites for those six projects to second-tier project EIR's, two of which were considered nearly concurrently with the final first-tier EIR. [Citation.]" (Bay-Delta, supra, 43 Cal.4th at p. 1176.) The Al Larson court found this deferral appropriate. "The concept of tiering supports allowing the agency and the public to first decide whether it is a good idea to increase Port capacity in a given five-year period at all, or by means of the six `anticipated projects.' If that decision is made in the affirmative then each individual project can be reviewed in-depth on its merits in a project EIR with no weight claimed for any supposed `approval' of the individual project or `planning' of its location." (Al Larson, supra, 18 Cal.App.4th at p. 744.)
The Bay-Delta court found the CALFED Program at least as broad in scope as the port development plan in Al Larson. (Bay-Delta, supra, 43 Cal.4th at p. 1176.) "CALFED worked out some of the EWA details while it was completing the final PEIS/R, and it properly released those details in the second-tier Action Framework in June 2000, one month before it released the final PEIS/R. The Action Framework set out specific details regarding the EWA project components whose general impacts were analyzed in the PEIS/R.... These second-tier project details were not, as the Court of Appeal asserted, `significant information' that should have been included in the first-tier, final PEIS/R. The PEIS/R therefore complied with CEQA in analyzing the impacts of the EWA in general terms and deferring project-level details to subsequent project-level EIR's." (Id. at p. 1177.)
Postponing analysis of the aerial viaducts at Belmont-San Carlos-Redwood City was appropriate under tiering, just as was delaying approval of the six individual projects in Al Larson. The purpose of tiering is "to focus upon the issues ripe for decision at each level of environmental review." (Pub. Resources Code, § 21093, subd. (a).) The Al Larson court did not require approval of the six "anticipated" projects in the first-tier program EIR, even though project EIRs for those projects were concurrently developed and two were approved. (Al Larson, supra, 18 Cal.App.4th at p. 737.) Here, there was no approval for the aerial viaducts because the primary decisions ripe for review in the first-tier program EIR were the general alignment and choice of routes between the Pacheco Pass and the Altamont Pass, and did not include the specific vertical alignment at a certain portion of the HST's route.
Policy considerations also militate against requiring the level of detail petitioners seek in a program EIR. Requiring a first-tier program EIR to provide greater detail as revealed by project-level analyses, "undermine[s] the purpose of tiering and burden[s] the program EIR with detail that would be more feasibly given and more useful at the second-tier stage." (Bay-Delta, supra, 43 Cal.4th at p. 1173.) While significant new information must be included in an EIR, requiring a program EIR to include everything discovered in project-level analyses before the program EIR is certified would result in "endless rounds of revision and recirculation" of EIRs that the Legislature did not intend. (Laurel Heights Improvement Assn. v. Regents of University of
Petitioners claim the analogous case is not Bay-Delta, but City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 [232 Cal.Rptr. 507] (Antioch). In Antioch, the city council of Pittsburg prepared a negative declaration rather than an EIR for a proposed road and sewer construction project, contending a negative declaration was appropriate because at this stage the proposed roadway would not connect to any existing streets. (Id. at p. 1333.) The appellate court found an EIR was required. (Id. at pp. 1337-1338.) The project could not be considered in isolation; since the project was to serve as a catalyst for future development, an EIR was necessary "to evaluate only the forms and extent of future development that now reasonably seem most likely to result from the roadway and utility projects." (Id. at p. 1338.)
We find Antioch inapposite because it did not involve a program EIR or the use of tiering. As we have explained, the revised final PEIR at issue here properly deferred analysis of environmental impacts and mitigation measures for the vertical alignments at certain portions of the HST system's route to later project EIRs because such "`impacts or mitigation measures are not determined by the first-tier approval decision but are specific to the later phases.' [Citation.]" (Bay-Delta, supra, 43 Cal.4th 1143, 1170.)
Petitioners contend the ridership model used for the description of the project was so inadequate and flawed that it prevented meaningful comments. Specifically, petitioners contend the modeling increased the service headway coefficient (which indicates frequency of service) and there was no substantial evidence to support this decision.
A ridership model is a complex set of mathematical equations used to predict how people will travel. The equations use both constants and coefficients that describe the importance of each input variable in a traveler's decisions. One of the coefficients is for service headway. Cambridge Systematics (Cambridge) prepared the modeling used in the revised final program EIR and some of the constants and coefficients were revised from those first used.
At the request of the Senate Transportation and Housing Committee, the Authority contracted with the Institute of Transportation Studies at the University of California, Berkeley (ITS) to prepare a peer review of the ridership and revenue model developed by Cambridge. ITS concluded that Cambridge "has followed generally accepted professional standards in carrying out the demand modeling and analysis. Nevertheless we have found some significant problems that render the key demand forecasting models unreliable for policy analysis."
In response to the ITS report, Cambridge asserted that coefficients were constrained (adjusted) to replicate existing travel patterns. The service headway coefficient was adjusted to comport with observed base year data. Cambridge reported that the various coefficients used "reflect observed current experiences and proposed service levels." The coefficient for service headway was constrained to reflect the unique situation that high-speed trains offer far more frequent interregional service than current conventional rail services such as Amtrak. When faced with conflicting data, Cambridge asserted that modelers must use their professional judgment. The service headway coefficient was constrained "to better replicate existing travel patterns and create a policy sensitive model."
Both Cambridge and ITS made presentations to the Authority's board concerning the ITS report and Cambridge's response. There was also public
In rejecting petitioners' challenge to the ridership model, the trial court found it was an "inevitable CEQA `battle of the experts.'"
"We apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898 [98 Cal.Rptr.3d 137].) CEQA defines substantial evidence as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (CEQA Guidelines, § 15384, subd. (a); see San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722 [32 Cal.Rptr.2d 704].)
"Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." (CEQA Guidelines, § 15151.) "When the evidence on an issue conflicts, the decisionmaker is `permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others.' [Citation.]" (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397 [133 Cal.Rptr.2d 718].)
"When a challenge is brought to studies on which an EIR is based, `the issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the' agency's decision. [Citation.] `A clearly inadequate or unsupported study is entitled to no judicial deference.' [Citation.] The party challenging the EIR,
"[O]ur Supreme Court has cautioned reviewing courts against performing our own scientific critiques of environmental studies, a task for which we have neither resources nor scientific expertise. [Citation.]" (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372 [54 Cal.Rptr.3d 485] (Eureka).)
Petitioners contend no evidence supports the change to the service headway coefficient, only Cambridge's "professional judgment." They argue that such professional judgment is inadequate unless supported by facts. We find sufficient evidence supports the change to the service headway coefficient.
Cambridge explained that it changed the service headway coefficient to comply with observed data from travel surveys. Cambridge set forth that the decision of which data to use — intraregional or interregional — was a matter of professional judgment. ITS conceded Cambridge's model was accurate for the 2000 base year and conformed to observations from the travel surveys. The disagreement was whether to use a service headway coefficient often used for intraregional travel when the HST system provided interregional travel. Cambridge explained its choice; the HST system provided more frequent service than conventional interregional rail service. We find this difference of opinion as to which coefficient to use, and on which data to base it, is a dispute between experts that does not render an EIR inadequate. (CEQA Guidelines, § 15151.)
Petitioners have failed to carry their burden to show Cambridge's travel model is "`clearly inadequate or unsupported.' [Citation.]" (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 795.) They make no attempt to challenge the expert qualifications of Cambridge. (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1468 [70 Cal.Rptr.3d 59].) ITS agreed that Cambridge had followed generally accepted professional standards. Further, two other experts supported Cambridge's travel model. Petitioners challenge the credibility of these other experts, noting their letters of support "were recruited" by Cambridge and both entities had ties to Cambridge. It is well established that in performing a substantial evidence review, we do not resolve issues of credibility. (Simons v. City of Los Angeles (1976) 63 Cal.App.3d 455, 470 [133 Cal.Rptr. 721].) "[I]f
As set forth ante, petitioners have not established that Cambridge's modeling failed this test for proper expert evidence. ITS agreed that Cambridge had followed generally accepted professional standards. We find more useful another point made by our Supreme Court in Sargon. "The trial court's gatekeeping role does not involve choosing between competing expert opinions. The [United States Supreme Court] warned that the gatekeeper's focus `must be solely on principles and methodology, not on the conclusions that they generate.' [Citation.]" (Sargon, supra, 55 Cal.4th at p. 772.)
Substantial evidence supports the use of the Cambridge travel model.
In Atherton I, the trial court ordered the Authority to revise the EIR to include Union Pacific Railroad's opposition to allowing the use of its right-of-way at any point in the proposed alignment. Petitioners contend the inability to use the Union Pacific Railroad right-of-way was a changed circumstance that required the Authority to reopen its consideration of alternatives. Specifically, they contend the revised final PEIR violated CEQA by failing to consider the alternative alignments for an Altamont Pass route proposed by Setec. They contend substantial evidence does not support the determination that these alternatives were either infeasible or substantially the same as those already considered.
The Atherton I petition challenged the final PEIR's discussion of alternatives. The trial court rejected this challenge, finding the final PEIR "studied a reasonable range of alternatives and presented a fair and unbiased analysis." The court noted that 21 representative network alternatives were summarized and compared. The court further found substantial evidence supported rejecting certain alternatives as infeasible, including directing the HST system over the existing, out-of-service Dumbarton rail bridge, using train-splitting, and using the U.S. Highway 101 median through the Peninsula.
In support of using the Altamont Pass, the Altamont Advocates presented a proposal prepared by Setec. Setec concluded that the Altamont Pass provided a better route than the Pacheco Pass. Setec provided a discussion of the various components of the Altamont Pass route and proposed using train-splitting.
The consultant, Parsons Brinckerhoff, prepared an assessment of the Setec proposal for the Authority. This assessment stated that the Setec alternative shared many of the characteristics with the alternatives previously studied and made certain tradeoffs that did not offer any significant benefit. The assessment concluded: "Given that the tangible differences between the Altamont alignments studied in the 2008 Final Program EIR and the Setec Alternative are small, we do not believe the Setec Alternative alters the basic comparison between Altamont Pass and Pacheco Pass network alternatives that serve both San Francisco and San Jose. We do not believe the Setec Alternative merits further consideration." The Authority adopted this position.
The trial court rejected the Authority's contention that the entire challenge to the alternatives analysis was barred by collateral estoppel, but questioned whether certain specific challenges were so barred, such as train-splitting and the use of the Dumbarton rail bridge. The court found that the Authority's rejection of the Setec alternative was supported by substantial evidence.
"The core of an EIR is the mitigation and alternatives sections. The Legislature has declared it the policy of the State to `consider alternatives to
Absent legal error, the City's infeasibility findings are entitled to great deference and are presumed correct. (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 997 [99 Cal.Rptr.3d 572].) "The parties seeking mandamus bear the burden of proving otherwise, and the reviewing court must resolve reasonable doubts in favor of the administrative findings and determination." (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497 [19 Cal.Rptr.3d 1].)
The Authority's rejection of Setec's Altamont Pass alternative was based in part on its earlier rejection of train-splitting. Setec suggested two patterns of train-splitting: a Central Valley split at Modesto or Tracy and a Bay Area split at Redwood City or Fremont. Setec concluded the use of train-splitting would result in savings of both travel time and costs.
Petitioners challenge only the first requirement, the identical nature of the issues. Petitioners contend the issue of train-splitting is not identical to that decided in Atherton I because there the alignment at issue used the Union Pacific Railroad right-of-way, and here the revised final PEIR considers an alignment that does not use that right-of-way. Petitioners fail, however, to show how the loss of the railroad right-of-way affects the issue of train-splitting. Nothing in the discussion of train-splitting was dependent on the use or nonuse of the railroad right-of-way.
The final PEIR studied three alternatives for the Dumbarton crossing: a high bridge, a low bridge, and a tube. Any Dumbarton crossing had significant potential impacts. HST service across the Bay "would likely result in significant impacts on San Francisco Bay, Don Edwards San Francisco Bay National Wildlife Refuge (Refuge), aquatic resources, and sensitive plant and wildlife species." The Pacheco Pass alternative would not require a bay crossing or affect the Don Edwards San Francisco Bay National Wildlife Refuge (Refuge), and "would result in fewer impacts on wetlands and aquatic resources than the Altamont Pass network alternatives.... The magnitude of impacts on biological resources of the Bay crossing would be greater than the impacts along the Pacheco alignment." The HST system was not compatible with Dumbarton rail service technology and would require more tracks, and a high bridge would have larger potential impacts and a higher cost. Further, several members of the United States Congress and the California Legislature commented that any alternative requiring construction through the Refuge should be rejected and the City of Fremont opposed any Dumbarton alternative because of its potential impact on Fremont neighborhoods.
The Setec proposal included crossing the bay over a (yet unbuilt) Dumbarton rail bridge. Recognizing the existing rail bridge, which was not in use, would need to be rebuilt to accommodate the HST system, Setec proposed two alternatives: a lift-span or drawbridge or a high central pier structure (like the adjacent Dumbarton highway bridge) and recommended the latter. "From a European perspective, it seems inconceivable that such a simple and short bridge would be considered a financial or technical hurdle." Setec proposed using the same alignment as the current rail bridge, and recognized the potentially significant impacts to wildlife during construction. It suggested it might be possible to reduce these impacts by working from the existing bridge structure, and scheduling construction to avoid breeding and nesting periods for the area's wildlife. Further, replacing existing rail embankments with cap and beam construction would improve the existing wetlands environment.
The Parsons Brinckerhoff assessment noted, "The 2008 Program EIR evaluated both a high and low bridge crossing at Dumbarton, and therefore, this component of the Setec Alternative is similar to the portions of the
"When an EIR discusses a reasonable range of alternatives sufficient to foster informed decisionmaking, it is not required to discuss additional alternatives substantially similar to those discussed. [Citations.]" (Cherry Valley, supra, 190 Cal.App.4th at p. 355.) Petitioners have failed to show the Dumbarton rail bridge proposed by Setec is not substantially similar to the Dumbarton high bridge alternative already discussed in the final PEIR.
The Authority rejected Setec's proposed alignment from the Altamont Pass to Fremont because it was similar to one already considered and rejected. That alternative alignment, "SR-84/South of Livermore," had been rejected because of its high impacts to the natural environment and agricultural lands. These included impacts to many endangered or threatened species. The route was also rejected because it was remote with respect to existing commuter routes and would not provide convenient access to downtown Livermore or Pleasanton.
Petitioners argue the two alignments are not the same because the Setec alternative avoided the Alameda Creek area. Further, Setec recommended mitigation measures similar to those used for high-speed rail through France's
Petitioners have failed to carry their burden to show the two routes are sufficiently dissimilar such that the Authority was required to consider the Setec alternative. They provide no detailed description of the differences and their vague references to varying maps fail to show significant differences. Further, while the Authority rejected the SR-84/South of Livermore alternative because of its impact on endangered or threatened species, the Setec report admits it lacks "geographic documentation that precisely locates habitats or endangered species" so it could not provide a comparison between the Altamont Pass and Pacheco Pass routes "about ecological habitat issues but only about potential of biodiversity." Thus, it does not dispel the concerns about the impact to threatened or endangered species.
Petitioners point out the Authority is considering this same south of Livermore route for an Altamont Corridor Rail Project. This project is intended to be "HST-compatible regional intercity passenger rail service." Petitioners contend use of this route for high-speed rail is contemplated and even if the use were to extend to only non "high speed" trains, this use would still adversely affect farmlands and wildlife habitat. They contend that since the Authority apparently believes that mitigation measures could be adequate to make the Altamont Corridor Rail Project feasible, it was unreasonable for the Authority to find such measures would be inadequate mitigation for this particular project.
Petitioners' argument is based largely on speculation, that the Authority might adopt the south of Livermore/Pleasanton route for a slower train service and might find there are adequate mitigation measures. Such speculation fails to carry petitioners' burden to show the revised final PEIR was inadequate in its discussion of alternatives. Further, they fail to address the transportation problems that the Authority identified with this route.
Setec proposed three possible routes through Fremont. Petitioners concede two are problematic, but assert the Authority's rejection of the third, via the Centerville line, as infeasible is not supported by substantial evidence. Petitioners contend the Authority rejected the Centerville alternative because it required the purchase of or conversion to exclusively passenger use of a short section of the Union Pacific Railroad right-of-way. They argue this position is inconsistent with the Authority's position as to use of other portions of the railroad's right-of-way. For example, petitioners argue that the
The Fremont route using the Centerville line was discussed in the final PEIR. Petitioners do not allege they offered new information or that the Centerville route proposed by Setec was substantially dissimilar to one already considered. Instead, they question the Authority's reasoning for finding use of the Centerville line infeasible. The Authority's infeasibility findings, however, are entitled to great deference and are presumed correct. (California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th at p. 997.) Substantial evidence supports rejecting an alternative that requires purchase of a portion of the Union Pacific Railroad's right-of-way in light of the railroad's express statement that the HST project should "not require the use of Union Pacific operating rights-of-way or interfere with Union Pacific operations" and "the project should not be designed to utilize or occupy any of our rights of way." That the Authority believed it was necessary and feasible to negotiate with Union Pacific as to other portions of the alignment does not make its position as to the Centerville line in Fremont unreasonable. "The decisions of the agency are given substantial deference and are presumed correct. The parties seeking mandamus bear the burden of proving otherwise, and the reviewing court must resolve reasonable doubts in favor of the administrative findings and determination." (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1497.)
Further, the Authority found additional problems with the Centerville line route — the need for separate facilities for commuter trains and HST and the difficulty of providing a connection to BART (Bay Area Rapid Transit).
In a final argument, petitioners contend the Authority improperly dismissed consideration of other alignments proposed by Setec. First, they point to the various options Setec offered for connecting Fremont and San Jose. Setec admitted it had performed only a "superficial" study, but proposed alternatives that used a commuter rail line, used the right-of-way for a BART extension, or used the Interstate 880 corridor for an elevated structure. Petitioners decry the Authority's objection to a joint project with the commuter rail system. In its response to this portion of the Setec alternative, the Authority noted that regional commuter services would require regional investment and it "cannot unilaterally plan for regionally operated commuter services." Petitioners offer no response to this concern.
Finally, Setec proposed using an elevated structure over the Highway 101 corridor from the Dumbarton Bridge to San Francisco, noting the advantage
Petitioners object to further study at the project level, rather than study at the program level as part of the Altamont Pass route. The Authority, however, has already rejected other portions of the Altamont Pass route. Petitioners have failed to show the consideration of alternatives was inadequate.
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Blease, Acting P. J., and Murray, J., concurred.
