On Friday August 16, the High Speed Rail Authority received a serious legal setback, when judge Michael Kenny ruled in response to a lawsuit that the High Speed Rail plans failed in two ways to meet the requirements of Proposition 1A, the voter initiative that authorized High Speed Rail.  Judge Kenny found that the funding plan was not adequate to fund an “initial operating segment” of High Speed Rail, and the Authority did not have enough of the project environmentally cleared.  The High Speed Rail segment that had a funding plan and environmental clearance was a smaller “initial construction segment” (near Fresno) rather than for an Initial Operating Segment  (Merced to Los Angeles, or San Francisco to Bakersfield).

However, the judge declined to block High Speed Rail funding (for now). Instead, he will hold a separate hearing, at a date not yet set, on possible remedies for the violations.   In the mean time, the High Speed Rail Authority is forging ahead on the project until the remedies are assessed.   Also, the judge has not yet ruled on two more aspects of the lawsuit, questioning the ridership projections and the ability of the project to meet the speed goals stated in Prop1A. That ruling is expected but not yet scheduled.

What does mean for the prospects for Caltrain electrification, which is funded in large part with money from the High Speed Rail project?

There are no changes right now, according to Caltrain policy director Seamus Murphy. Caltrain is currently in the middle of getting environmental clearance for electrification, and has enough money without Prop. 1A funds to finish the environmental clearance in 2014 as planned.  Caltrain will need more money for new rail cars and other implementation spending in 2015.

What happens next depends on whether, and how fast, the High Speed Rail authority can extricate itself from these legal problems.  The High Speed Rail Authority may argue that the 2012 business plan, which was submitted after the 2011 lawsuit, does a better job of meeting the legal tests. Or the judge may defer to the legislature about whether to continue to appropriate the money.   The timing is important.  The High Speed Rail project depends on $3.2 billion in ARRA stimulus funding.  The stimulus funds need to be well on their way to being spent by 2017, or the Federal Government will reallocate the funds for other rail projects.

If High Speed Rail’s legal problems continue into 2014, the region will need to look seriously at backup plans to fund electrification.   Electrification is overwhelmingly popular, according to a recent poll showing 79% voter support, and is needed to address Caltrain’s current capacity crunch, and the additional ridership expected from growth and infill development on the Caltrain corridor.

One backup plan would be to use the stimulus funds for the Northern and Southern California investments, if the Central Valley segments are held up in legal and financial problems.  The Obama Administration will surely not want the stimulus funding to go to waste.  California’s senior legislators Pelosi, Boxer and Feinstein were instrumental in getting ARRA funds to California and will not want to see that funding taken away.

In June 2012, before the legislature voted to approve High Speed Rail funding in July, Senator Mark DeSaulnier proposed an alternative plan to invest in the Downtown Extension to Transbay Terminal, Caltrain electrification, and LA-area rail improvements.   At the time, when the High Speed Rail plan was headed for approval, DeSaulnier’s Plan B did not get much traction.   If the choice is Plan B or losing federal funds, Plan B may look more attractive. (This Sacramento Bee link doesn’t work any more, we’ll try to find it in the archives).

A second backup plan would be regional funding.   Since San Mateo County voters approved a sales tax increase just last year, some of which is being used to support SamTrans operations, it had been looking like a challenge to raise additional money for transit in San Mateo County in the near term, and Santa Clara County polls less well because Caltrain serves a smaller area of the County.   But if the popular electrification program is endangered, the picture changes.   Would the 3 counties be willing to band together to raise regional money to finish electrification, improve Caltrain capacity and service, and reduce annual operating costs?

Until the next steps of the lawsuit play out over the next several months, supporters of Caltrain electrification will wait to see how events play out.  If things do not go well for High Speed Rail into 2014, the backup plans will look increasingly attractive and plausible.

http://www.calhsr.com/uncategorized/the-high-speed-rail-authority-loses-in-court-does-it-matter/