In a surprising decision, Surface Transportation Board Decision, Docket No. FD35861, December 12, 2014 (“Docket”), the Federal Surface Transportation Board (“Board”) ruled that the application of the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000, et seq., to the 114 mile high-speed passenger rail line between Fresno and Bakersfield, California is preempted in its entirety by federal law. The Board’s decision is not only surprising in the context of prevailing legal authority, but also potentially important in the context of other modes of transportation.
First, from a substantive perspective, the Board’s decision erroneously designates CEQA as a “state . . . permitting or preclearance requirement[ ],” Docket, p. 12, that “attempts to regulate where, how, and under what conditions the Authority may construct the Line.” Id. However, the cases interpreting CEQA reject this view on the grounds that “a court’s decision to void the approval of a regulation, ordinance or program [as violative of CEQA] does not necessarily require the court to invalidate or suspend the operation of the regulation, ordinance or program.” See, Poet, LLC v. California Air Resources Board, 218 Cal.App.4th 681, 761 (2003). Thus, without the imposition of the injunctive remedy (which was the subject of the Authority’s limited petition in the first instance), the most that a finding of inadequacy under CEQA can accomplish is to require that the environmental review be repeated correctly, either procedurally or substantively, during which time the project, rail or otherwise, may proceed apace.