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.
Proponents of California’s proposed high-speed rail project envision a high-speed rail network connecting Sacramento, San Francisco, Central Valley, Los Angeles, Orange County, the Inland Empire and San Diego. However, there are many obstacles, real or imagined, that could delay or derail the project. First, the House Subcommittee on Transportation voted to fund only $1.4 billion for high-speed rail in FY 2011, compared to the $4 billion they approved last year. The project appears to be plagued by unreliable cost, ridership and revenue projections, uncertainty about private investment and, given the State of California’s finances, the possibility that taxpayers may have to subsidize the project if revenue projections are not met. A high-speed rail system would reduce revenues for Metrolink and Amtrak. A number of cities and communities along the proposed routes oppose the project. Finally, the proposed project will require environmental review. Environmental review will include at least two alternatives (in addition to the mandatory “no-action” alternative) – a “shared track” alternative and a “dedicated track” alternative. Both present problems.