California's bullet train is likely to face more environmental hurdles after a high court ruling

July 31, 2017 4 AM PT

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 Circuit 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 a 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, 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 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 9^th 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 the 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 High-Speed 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 the 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 Supreme Court’s ruling, Justice Carol 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 policy makers 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.

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