Friday, August 08, 2014

Second thoughts on that high-speed rail decision

Monte Wolverton

A week ago I wrote this about that Court of Appeal high-speed rail decision: "What the Court of Appeal has done is essentially invalidate promises made to state voters in Proposition 1A, which passed with only 52% of the vote in 2008." 

Wrong! Instead of actually reading the decision, I relied on media accounts and the reaction of the lawyers who sued the state on the project. Those lawyers are surely now having second thoughts about the decision. From the Community Coalition on High-Speed Rail:

...One knowledgeable lawyer, who has followed the litigation closely, provides a much more accurate summary of what the recent Appellate Court decision actually means. He calls the July 31st decision a "Stay of Execution" for the proposed high-speed rail project.

In fact, that is actually what the court decision does do, and that is the "good news" report coming out of a decision that seems, on its face, to represent a setback for HSR critics.

What the Third District Court of Appeal actually said was:

The Authority does have to meet the requirements of Proposition 1A.
The Authority has not yet met those requirements.
The Authority cannot construct the project until it has met those requirements.
No bond funds can be used for construction until the requirements have been met.

The Authority must demonstrate that all the requirements in Proposition 1A that pertain to its funding plans are met by the time the Authority asks for approval of its final funding plan. This means that the Authority must show that there is adequate funding to complete the initial operating segment of the project before the Authority can begin constructing the project. And the funding that has to be demonstrated must be something definite, not just a vague hope that money will be forthcoming in the future. So far, no such funding source is visible. In addition, the Appellate Court made clear that the Authority must demonstrate that all required environmental reviews have been completed (not just promised).

The Appellate Court called the requirements of Proposition 1A a "straightjacket," indicating how tough they are. AND (it bears repeating), the Appellate Court said that the Authority must comply with those tough requirements before starting construction.

The reason for the decision "in favor" of the Authority was the court's holding that the challenge to the Authority's action by the petitioners in Tos was essentially "premature," aimed at an initial funding plan that is now no longer correctable (because the Legislature has appropriated the money the Authority had asked for). In the future, high-speed rail opponents can come back to court, if the Authority actually tries to construct part of the project without showing it has the money to complete the entire first segment, and without showing it has complied with environmental review requirements for that entire first segment, too...

When Smart People Are Dumb: James Fallows on high-speed rail.

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