Kings County & Others Plan Appeal Of December Surface Transportation Board Decision To 9th Circuit
February 2,2015
Does federal jurisdiction over high speed rail preempt state environmental laws from being enforced? A decision by the federal Surface Transportation Board in December seemed to close the door on 7 challenges that are pending against CHSRA that rely on state CEQA rules. The lawsuits seek to halt construction of the Fresno to Bakersfield segment of the route.
The STB voted 2 to 1 that California Environmental Quality Act (CEQA) “is categorically pre-empted” from stopping construction on the line the federal government has jurisdiction over.That is because it is part of the interstate rail system.
“CEQA … by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the board has specifically authorized,” the STB ruling said.
The interpretation is that lawsuits by Kings County and others can’t use CEQA to stop construction of the 114 mile line.The STB’s ruling states that third parties cannot sue under CEQA to block the bullet train because that would represent a use of state law to trump federal authority that dates back other 1800s.
Not So Fast
The December decision cheered supporters hoping to speed construction of the route.But long time opponent – Kings County appears to be saying’ not so fast.’
Kings County counsel Colleen Carlson says the Board of Supervisors recently gave the OK to challenge the decision in court and an appeal will be filed in the next few days.
Carlson offers this history on the case. “ Kings County along with the Citizens for High Speed Rail Accountability and the Kings County Farm Bureau filed a Petition for Writ of Mandate challenging the CEQA environmental document adopted for the Fresno-Bakersfield section of the California High Speed Rail project. In total, seven writs were filed. One writ (City of Bakersfield) has been dismissed after a settlement was reached. The Kings County-CHSRA-Kings County Farm Bureau Petition remains ongoing, along with the Baptist Church, Shafter interests, Dignity Health, County of Kern, and Coffee Brimhall.
While the various parties were meeting and conferring regarding preparation of the administrative record in this CEQA matter, the High Speed Rail Authority filed a Petition for Declaratory Order with the federal Surface Transportation Board seeking a declaration regarding the availability of injunctive remedies under the California Environmental Quality Act to prevent or delay construction of the passenger rail line between Fresno and Bakersfield.
The STB explained why it would be difficult to parse CEQA and, “Applying the well-established preemption principles here [in their opinion] the Board concludes that CEQA is categorically preempted by §10501(b) [of the Interstate Commerce Commission Termination Act (ICCTA)] in connection with the Line.”
Carlson adds that “ STB’s Declaratory Decision, basically disregards a published appellate decision in California entitled Town of Atherton v. California High Speed Rail Authority in which the California Court of Appeal held that the “market participant” doctrine negated section 10501(b) preemption and that CEQA does apply to California High Speed Rail projects, by stating simply “that opinion [Atherton] should not affect this Board’s decision in this proceeding.” Another California appellate court that recently found the market participation doctrine was misapplied in Atherton, i.e. Friends of the Eel River v. North Coast Railroad Authority has been taken up by the California Supreme Court for review.
She says Kings County will join with the Citizens for High Speed Rail Accountability and the Kings County Farm Bureau to challenge the STB decision to the 9th Circuit.They expect Dignity Health,who has a hospital in the path of the route in Bakersfield, and the Atherton interests to file appeals.
The appeal must be filed by February 8th