Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

Indeed, the geographic size of rail projects implicates the greater scope of legal applicability. Rail projects, even if, like the current “high speed rail,” limited to within the borders of California, will, of necessity, be recipients of Federal funding. Consequently, Federal environmental statutes, including the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and the Federal Clean Air Act, 42 U.S.C. § 7501, et seq., apply. Thus, while the California legislature may attenuate the CEQA process, the rail projects will still remain hostage to NEPA.

Finally, even if rail projects could proceed without Federal funding, which they most likely cannot, where they cross state lines, the Interstate Commerce Clause of the United States Constitution is implicated, and Federal law will apply. In short, to attenuate the environmental review process for major transportation projects will require a different legislative template, at a different legislative forum, the United States Congress.
 

It’s fairly obvious that these two Bills drill large holes in CEQA’s blanket of protection of the public from the environmental impacts, both short and long term, of large scale development projects. It’s equally obvious that the Bills were intended to insulate not merely the stadium, but also other specific projects, such as the California High Speed Rail Project, from the usually lengthy CEQA process.

What is less obvious is that the Bills could also “fast-track” every airport improvement and/or expansion project in the State of California. This is because airport improvement projects are extremely costly, often involving reconfiguration of the airfield, including demolition and realignment of runways and taxiways, as well as terminal and parking lot construction. Even a small part of these potential activities could add up to hundreds of millions of dollars. So far so good you may be saying, because that type of major construction adds up to lots of jobs and better transportation.

This is where that nasty law of unintended consequences sneaks in. Along with the “good” of increased employment and capacity comes usually major, and always long term, environmental consequences on large swaths of numerous local communities. Such impacts include increased air pollution, greatly increased noise over the numerous residential communities located around airports, and the ubiquitous traffic impacts on local communities. Unlike the “fast-tracking” of the essentially local stadium project and of surface transportation projects which run in confined, proscribed corridors, airport impacts cover widespread and often unpredictable areas and populations.

It is true that access to the courts has merely been attenuated, not eliminated. But the impact of sending a challenge directly to the Courts of Appeals is draconian. The only path of reconsideration or appeal from a decision of a Court of Appeals is to the California Supreme Court. Because that court only accepts for hearing about 5% of the cases that apply to it, the new legislation effectively gives challengers only one bite at the apple. Thus, the Bills constitute a radical change in a state where Courts of Appeals regularly revised lower court decisions under CEQA.

Finally, and added to the already existing burdens on the Appellate Court system, the 175 day rule (or less than six months) to fully adjudicate a CEQA action further constrains the ability of the Appellate Courts, used to dealing with legal questions, to try what are usually highly fact specific and sometimes scientifically complex environmental issues.

In short, SB292 and AB900 are bad precedent, even if for good reasons. Special interest legislation is never desirable (although frighteningly common), and special interest legislation, the global consequences of which have not been fully considered, is even less desirable. It can only be hoped that environmental groups such as the National Resources Defense Council, which supported both Bills, will be just a quick to aide citizens affected by the legislation to adjust to their new legal reality.
 

The shared track alternative would require no major property purchases and save homes and businesses. However, it would result in fewer trains and lower speeds, as compared to the dedicated rail alternative. It would also likely cause delays of Metrolink and Amtrak trains. The dedicated track alternative would allow higher speeds and would not cause delays for Metrolink and Amtrak. However, it would be far more costly to purchase property or obtain easements and build new tracks and stations. Opponents claim that dedicated tracks would require destruction of homes and businesses, and have the potential to impact parks and historic properties. The dedicated track alternative will also meet with strong opposition by open space advocates. If selected, the dedicate track alternative would involve planning complexities for what could be one of the largest new public works projects in the U.S.

There isn’t much to distinguish Genesis from its competitors, Desert Xpress, a conventional steel wheel high speed line, and the magnetic levitation variant sponsored by American Magline Group, except perhaps its route. That route will take a t-shape with a north/south leg from Las Vegas along the Colorado River to intersect with the I-10 freeway corridor, creating the east/west leg between Phoenix and Los Angeles.

Certainly, Genesis’ funding requirements are not more economical than those of its competitors. It estimates that a study of the optimal route would cost $35 million, with $35-40 billion in construction costs, much of which, it is hoped, will be obtained from Federal taxpayers. Planning for the Maglev project could cost as much as $60 million, although the custodian of most of the needed funds, the Federal Railroad Administration, has withheld a previously appropriated $45 million from the American Magline Group, on the grounds that American Magline has failed thus far to raise the required 20% match of private funds.

Finally, the conventional Desert Xpress seems to be the ultimate beneficiary of the dispute. With substantially lower planning and construction costs of $4 billion, it has won the support of Senate Majority Leader Harry Reid on the ground that Desert Xpress is not seeking Federal funding. However, this seems to be a misapprehension corrected by Desert Xpress which admits that, due to the difficult economy, it will look to all available funding sources, including Federal funding.

What is absent from the debate is any clarification of the anticipated ridership of these rail lines. Amtrak’s existing lines on the East Coast have yet to make it into the black, despite the fact that two-thirds of those who ride the train on a regular basis live on the East Coast. The rail competitors are, apparently, betting not their own, but taxpayer dollars, that: (1) there is enough density of population in the target areas to make the project economically feasible; and (2) Californians and other westerners will abandon the comfort and privacy of their own automobiles for as yet unplanned, untested technology.