The new lawsuit is a collaboration between Central Valley critics of the project, John Tos, Aaron Fukuda and Kings County, and Peninsula attorneys and economists who have long argued that the voter-approved project is misguided and financially infeasible.
The latter group includes William Grindley, William Warren and Mike Brady, all of whom have publicly criticized the project's revenue projections. The group is also working with Stuart Flashman, who had represented Palo Alto, Menlo Park and Atherton in a prior lawsuit, which challenged the California High-Speed Rail Authority's environmental analysis.
The rail authority prevailed in this suit when Sacramento Superior Court Judge Michael Kenny ruled on Feb. 25 that the analysis, while imperfect, sufficiently describes the "blended" rail system (Caltrain and high-speed rail sharing tracks on the Peninsula) that the rail authority now plans to build.
The new suit takes a different approach and roots its argument in Proposition 1A, which California voters approved in 2008 and which allocates $9.95 billion for high-speed rail and related transit projects. The plaintiffs claim that the system described in AB 3034, the legislation that put that measure on the ballot, described a rail system that is very different from the one currently on the drawing table. The plaintiffs note that the projected fares have gone up considerably between the 2008 estimate and today, rising from $50 to $81 and argue that the project will not be able to operate without a public subsidy (a key requirement of AB 3034).
They also argue that the rail authority's decision last year to launch the project with a 130-mile segment in Central Valley is illegal because it would not be a "usable" high-speed rail segment. The legislation required that the first constructed segment be usable.
The CHSRA has not only changed the project without voter or Legislative consent, but has misled the public in the attempt to build a few, un-electrified, miles of track in the Central Valley without rolling stock or the required ability to be profitable," the plaintiffs said in a statement about the lawsuits.
Because of the project's inconsistency with the requirements with Proposition 1A, the plaintiffs contend, it should be effectively halted and forced to go back to the drawing board.
"The safeguards, restrictions and prohibitions in Proposition 1A are elaborate and extensive," the lawsuit states. "Why? Because the Legislature wanted to prevent, at all costs, financial exposure to the State typically resulting from mega-public works projects. The Authority has willfully violated that intent, the State faces great financial risks because of these violations and, therefore, the courts are the last resort to make the Authority comply with the law. Construction of the HSR project cannot commence because of these violations."
In the suit, the plaintiffs claim that the new legal challenge "does not represent a political attack on the high-speed rail project as an unwise step for California" but rather takes a more narrow focus: building the system would be "illegal" because the provisions in AB 3034 have not been met.
The rail authority, the suit claims, does not have a set plan for acquiring the rest of the needed funding for the San Francisco-to-Los Angeles project, which now has an estimated price tag of $68 billion. In addition to the voter-approved bond, the rail project has about $3.3 billion in federal funding. Meanwhile, the private investors that the rail authority had been banking on to help fill the gap have not materialized.
The new lawsuit comes at a time when the much-beleaguered project is finally gathering some momentum. Last year, a bill to fund construction of the first segment was approved by a single vote in the state Senate (it passed comfortably, largely along party lines, in the Assembly and was subsequently signed by Gov. Jerry Brown). And after three years of antagonism and litigation from Peninsula cities and watchdogs, the rail authority last year reached a compromise of sorts when it agreed to scrap its initial plan for a four-track system (with Caltrain on the two outside tracks and high-speed rail on the inside) in favor of the two-track blended system.
The blended design was proposed by three Peninsula legislators: then-state Sen. Joe Simitian, D-Palo Alto, Assemblyman Rich Gordon, D-Menlo Park, and U.S. Rep. Anna Eshoo, D-Palo Alto. In another overture to the Peninsula, the rail authority has agreed to help fund the long awaited electrification of Caltrain, a project that would allow the agency to run more trains and become more financially sustainable.
The new suit, however, argues that the blended system would violate state law because it would make it impossible for the new high-speed trains to go from San Francisco to Los Angeles in 2 hours 40 minutes as required by AB 3034.
"All of the original assumptions behind the Authority's certification that it would be able to make the 2 hour and 40 minute trip time were based upon its having dedicated track, no obstructions, no "at grade' crossings and elevated viaducts with four track structures," the suit states. "None of this is achievable with a blended system. This will all obviously have a major effect on trip times."
In their statement, Grindley, Brady and Warren argue that the rail authority "has not only changed the project without voter or Legislative consent, but has misled the public in the attempt to build a few, un-electrified miles of track in the Central Valley without rolling stock or the required ability to be profitable."
The trial is scheduled to start on May 31, according to the statement.