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Expedited Appeal Granted In High Speed Rail Case

Screen shot 2012-07-02 at 8.33.40 AMAt the request of Governor Brown the California Supreme Court has approved an appeal of two rulings on high speed rail this week referring the cases to the 3rd District Court of Appeal and ordering an expedited hearing. Both sides in what has become an epic struggle are to submit briefs by February 10 with the state asking for a ruling before March.

Sacramento Superior Court judge Michael Kenny in November ordered the California High-Speed Rail Authority to rescind their original funding plan for the $68 billion project saying it did not comply with the voter approved bond act – Prop 1A. Now this will be out of Judge Kenny’s hands.

The state’s request for appeal argued that the “ two rulings of the Sacramento Superior Court – which are otherwise unreviewable as a practical matter – imperil the project by erecting obstacles found nowhere in the voter-approved bond act. These erroneous rulings turn the requirements of the high-speed rail bond act on their head, threaten state and federal funding for the project,and urgently warrant review by this Court ..”

California voters approved the sale of $9.95 billion in general obligation bonds in 2008 to build the largest infrastructure project in the State’s history.

The appeal says “The trial court’s approach to these issues cripples government’s ability to function. The issue is time. The Authority is faced with a Hobson’s choice: it can pursue  appeals that may take years to resolve and incur the exorbitant costs, fiscal and otherwise….. (in an)attempt to move the project forward on the trial court’s and private parties’ terms. That is not a real choice given the responsibility the Authority has to be prudent with public funds, to use federal grant funds before they expire in 2017.”

Judge Kenny essentially blocked the use of $8 billion in bond funding   to help match federal money to begin construction now scheduled to start in the next few weeks around Fresno, say sources. The Authority has been buying up needed right of way to begin the first 28 mile leg of the route from Fresno north to near Madera but needs enough ROW to keep the contractor busy once he starts.

Brown visited Fresno recently looking to rally support for the project here where there is strong feelings on both sides.

“Sixteen other countries have high-speed rail,” he said. “America should be strong enough, big enough and visionary enough to construct high-speed rail.” Brown compared the  bullet train to the  Golden Gate Bridge, the Panama Canal and the Transcontinental Railroad suggesting they too had numerous critics but in the end benefited the country.

Critics continue to argue the financing plan is not strong even as they seek to pull back on that same public funding. At a House hearing recently the argument was heard. “A court has ruled,” said GOP  Rep. Jeff Denham, chairman of the House railroad subcommittee, and a vocal critic of high-speed rail in the state. “There is no state match.”

The state’s appeal noted the obstructionist strategy as a key reason why a quick court ruling was needed. “Congress has initiated hearings and an investigation by the Government Accountability Office in an effort to pressure federal funding partners to withhold billions of dollars in matching federal grants to construct the Central Valley portion of the high-speed rail system, and legislation has been proposed to suspend federal funding until “sufficient non-Federal funds are available.”

The crux of the dispute appears to be whether CHSRA followed Prop 1A by building the 500 mile route in segments that will connect at least two major stations like the Fresno to Bakersfield leg that the CHSRA wants to build starting this Spring. Their argument is that if no other segment of the high speed route was ever built, Amtrak could use this new”usable segment” and run speedier trains. The idea counters the notion this is a “train  to nowhere.”

Critics argue the Prop1A require all funds be available to fund a route that connects all the way to LA.

Cap & Trade?

At the same House testimony recently CHSRA chair Dan Richard said he hoped to have that funding in hand with approval of state Cap and Trade funds and that he would offer this new budget plan to Congressman Denham soon.

Besides using bond money Brown has now recommended use of Cap and Trade money – set aside to fund projects that cut air emissions.

With 40%  of greenhouse gases coming from the transportation sector uses – Brown says high speed rail will help make a dent in that. The California Air Resources Board says “HSR will reduce vehicle miles traveled in CA by almost 10 million miles a day, equating to removing from the road about 317,000 cars a day.” In addition “HSR will reduce by about a third the number of daily flights between San Francisco and Los Angeles, the busiest short-haul market in the country.”

But some are saying using Cap and Trade money for high speed rail is too far off to make a difference.The Authority can argue that their plan sets in motion emission savings  immediately through a massive tree planting effort,contracting for all renewable energy projects and pushing for affordable housing close to transit in every city they pass. That helps to mold community’s plans to a sustainable pattern that will have a lasting effect and cut greenhouse gases that appear to be affecting our weather.

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