United States: Level of Detail Adequate in High Speed Rail Authority’s Program EIR for Central Valley to Bay Area Rail Corridor

Town of Atherton v. California High-Speed Rail Authority(7/24/14, C070877)

The appellate court upheld the California High-Speed Rail Authority's Program EIR for the Central Valley to Bay Area portion of the route, concluding that (1) the Authority properly limited its environmental analysis to a program level when it deferred site-specific analysis of the vertical profile options for alignment, (2) the Town's experts could not show the Authority's revenue and ridership model was inadequate or unsupported, and (3) the Authority's Program EIR considered an adequate range of alternatives despite rejecting an alternative proposed by one expert consulting company.

Before reaching the CEQA issues in the case, the court rejected the Authority's argument that federal law, specifically the Interstate Commerce Commission Termination Act (ICCTA), preempted the California Environmental Quality Act litigation. The Authority contended that a federal board, the Surface Transportation Board, had recently assumed jurisdiction over California's high-speed rail project, determining it would be part of the interstate rail network governed by the ICCTA.  However, the court found the specific circumstances of the case fell within the market participation exception to federal preemption because the State of California, rather than a private company, was constructing the rail line financed by state bonds approved by Proposition 1A which included compliance with CEQA as a feature of the high-speed rail.

On the CEQA issues, the Town first asserted that the Authority's revised final Program EIR provided an inadequate analysis of the vertical profile options for alignment. The Authority explained that the revised final Program EIR was a first-tier program EIR/EIS intended to contain only a general discussion of the project's impacts relating to aesthetics, visual resources, noise, and vibration.  The Authority began the second-tier project-level EIR to provide for more detailed, site-specific impacts and as a result issued a Supplemental Alternatives Analysis Report (SAAR), which concluded that an aerial viaduct (elevated structure) was the only feasible alignment for a portion of the project. While the SAAR's conclusion resulted from a more in depth project-level analysis, it was issued approximately one month before final certification of the Program EIR.  The Town argued that the necessity of the aerial viaduct was foreseeable and thus should have been included in the first-tier Program EIR.  Relying on the CEQA Guidelines and case law, the court concluded the Authority properly deferred detailed analysis of precise vertical alignment to the second-tier, project-level EIR. Further, the court indicated that requiring otherwise would "'undermine the purpose of tiering and burden the program EIR with detail that would be more feasibly given and more useful at the second tier stage'" (quoting In re Bay-Delta etc.  (2008) 43 Cal.4th 1143, 1173).

The Town further contended the ridership model used for the project was flawed, inadequate, and not supported by substantial evidence.  The court acknowledged that the issue of adequacy of the ridership model, a complex set of mathematical equations used to predict how people will travel, essentially came down to a "battle of the experts." The Authority relied upon its expert's professional judgment, and given the deferential nature of the applicable substantial evidence test, the court determined it could not find the Authority's ridership model inadequate.

Finally, the Town asserted the Program EIR considered an inadequate range of alternatives because it rejected a particular alternative proposed by an expert consulting company. The Authority persuaded the court with its explanation that it rejected those alternatives on the basis that they were either infeasible or substantially the same as alternatives previously considered. Noting the breadth of network alternatives summarized and compared in the Program EIR and the substantial evidence to support rejection of certain alternatives, the court concluded the Town failed to establish the Authority's consideration of alternatives was inadequate.

While the court's decision has not solidified the level of detail required in a first-tier Program EIR, it has reaffirmed the valuable purpose of tiered analysis under CEQA.  Further, the decision reiterates the importance of documenting and maintaining credible evidence as to all facts and opinions considered throughout the EIR process to receive the full benefit of the deferential substantial evidence standard applicable in CEQA litigation.


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