On March 4th, Judge Michael Kenny handed down his decision in the case of Tos v. High-Speed Rail Authority. This case was filed in 2011 by CC-HSR Board Member Michael Brady, as the attorney for Central Valley farmers whose farms will be decimated if the state's proposed High-Speed Rail project goes ahead. The lawsuit challenges the Authority's use of Bond Act funding for a project that is flatly inconsistent with the specifications contained in the 2008 High-Speed Rail Bond Act.
The plaintiffs were hoping that Judge Kenny would hold that all spending on High-Speed Rail would have to meet the requirements of the Bond Act. The Judge didn't go that far, but he certainly didn't disagree that the project, as currently proposed, appears to be inconsistent with Bond Act requirements. Quite the contrary. Despite that fact, Judge Kenny essentially said: "You are going to have to wait a little longer!"
While Judge Kenny pointed out the apparent validity of the claims made by the plaintiffs, who are attacking the High-Speed Rail project because it can't meet Bond Act requirements, he also said that the Authority has not yet actually sought to spend bond funds. Instead, the Authority is using federal funding, and so-called "Cap and Trade" funding. Because the Authority isn't yet trying to draw upon the bond funding authorized by a vote of the people in 2008, the Judge found that a challenge to the expenditure of bond funds is not yet "ripe."
When a challenge is "ripe," which may be later this year, the attorneys for those challenging the project are prepared to go back to court, and Judge Kenny's decision will then be incredibly helpful. He has made it a lot more difficult for the Authority to spend Bond Act funds for the current project.
Here is what the Judge said:
The Authority may not spend any of the $9.95 billion in general obligation bonds absent a showing of compliance with the numerous requirements described in the Bond Act.
Those requirements include, but are not limited to, how many trains per hour the proposed route can accommodate (the current plans don't meet Bond Act standards), and how much time it would take for a trip from the Transbay Terminal in San Francisco to Los Angeles (the system as currently proposed will not make the trip in the required two hour and forty-minute time period specified in the Bond Act).
CC-HSR is disappointed that the Judge didn't just terminate the project now, but he acted cautiously, as Judges are actually supposed to do, and the essence of the ruling is that the plaintiffs are right. They will just have to wait a bit longer to get the ruling they deserve!
Judge Kenny fired several shells across the Authority's bow, specifically highlighting the inadequacies of the current project, and the Judge told the Authority, in no uncertain terms, that the Authority will have to show how it can meet Bond Act standards before the Authority can spend any Bond Act money.
Without that Bond Act money, the project can't go forward.
So we'll wait and then we'll win!
Judge Kenny's decision here. Other legal documents on the case at Transdef.
Kathy Hamilton's account here.
Kevin Drum thinks conflating high-speed rail and water in that initiative is a bad idea.
Labels: California, High-Speed Rail