By failing to require an update to California High Speed Rail’s Environmental Impact Report, state officials are violating a key provision of both the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). This failure lends an air of hypocrisy to Sacramento’s criticism of Trump Administration environmental stewardship and it also gives Elaine Chao, Trump’s Secretary of Transportation, an opportunity to derail the HSR project.
The federal government, through its lead agency, the Federal Railroad Administration, approved the High-Speed Train Alternative as described in the Final Program Environmental Impact Report for the Proposed California High-Speed Train System (Program EIR) in its Record of Decision (ROD) issued in November 2005. However, both federal (NEPA) and California (CEQA) environmental law place limits on the continued use of the Program EIR. A February 2014 joint publication of the Federal Government and the State of California concisely summarized these limitations and the need for supplemental program EIRs. Under both NEPA and CEQA supplementation is needed when any of the following occur:
(1) substantial changes to the proposal itself;
(2) a new alternative arises outside the range of those already analyzed; or
(3) any other new information arises that would significantly change the analysis of impacts.
All three of these criteria have been met.
Substantial Changes to Proposal
The federal ROD approved a project to build a 700-mile long fully grade separated statewide high-speed rail system extending from Sacramento and the San Francisco Bay Area through the Central Valley to Los Angeles and San Diego carrying 42 million passengers annually by the year 2020. For the past 12 years the California High-Speed Rail Authority (Authority), unable to even fund Phase 1 from Los Angeles to San Francisco, has not once provided the public with the statutorily required estimated cost and completion date for the statewide system. Worse, the Authority now seeks to build even a smaller section than Phase 1, a 119-mile section connecting Merced to Shafter that will use nearly all currently available funds and still not provide high-speed rail service. The federal ROD allows nothing to be built except the 700-mile statewide system and it is becoming increasingly clear this won’t happen. Other proposal changes include the Authority moving away from performance criteria spelled out in the federal ROD such as building a statewide system (1) with fully grade-separated guideways, (2) capable of maintaining operations at 3-minute headways, (3) with trains capable of traveling from San Francisco to Los Angeles in approximately 2 hours and 30 minutes, and (4) having the system in service by the year 2020.
New alternatives have not merely arisen, they have been proven viable. With the year 2020 rapidly approaching, the No Project Alternative studied in the Program EIR has proven to be adequate for the intercity transportation needs of Californians. Freeways running up the Central Valley between the Los Angeles Basin and the Bay Area have not been expanded. Yet the California Transportation Department shows large sections of Interstate 5 through the Central Valley running at, or below, maximum capacity. Frequent travelers driving up this section of Interstate 5 know full well that a speeding ticket is still their prime concern. Airport expansion has not occurred since 2005 and three airports – Burbank, Ontario, and San Jose – are more underutilized now than they were in the year 2000. Yet these were airports cited in the Program EIR as needing expansions costing $12 billion, out of a total of $16 billion in airport expansions, by 2020 if high-speed rail was not built. A fourth airport, Palmdale Regional, remains closed due to lack of business.
Development of the Program EIR for the statewide high-speed train system began in the year 2000, a time when the state’s population was expected to grow from 34 million to 46 million by the year 2020. Today the state’s population is about 39 million and not expected to reach 46 million until the year 2036. The case for high-speed rail is further compromised by the fact that overall state highway traffic volume has recently stabilized, rising by only 0.6% in the decade following certification of the Program EIR. This is consistent with an ongoing nationwide phenomenon.
Quoting from the State Smart Transportation Initiative website: “Unlike other past dips in driving, this recent downward shift has had no clear, lasting connection to economic trends or gas prices. Evidence suggests that the decline is likely due to changing demographics, saturated highways, and a rising preference for compact, mixed-use neighborhoods, which reduce the need for driving. Some key factors that pushed VMT upward for decades – including a growing workforce and rising automobile ownership – have also slowed considerably.” In some cases, long distance travel is being replaced by online meetings. The number of public companies holding their shareholder meetings online increased from 27 in 2012 to at least 136 in 2016.
Experts from academia have also weighed in on this phenomenon. Quoting from a paper authored by professors of transportation at the University of Minnesota in July 2015: “Both car and transit (the passenger trains preceding the automobile) follow the classic lifecycle model or S-curve of birth, growth, maturity, and decline.” “History will tell us for sure, but the evidence for “Peak Travel” has been mounting. This does not mean there will never be a year in which per capita car travel again rises. The economy and gas prices still fluctuate, and a boom year with low gas prices following a recession with high gas prices might very well temporarily bump traffic upward, but that is really short-term noise. In the absence of external events (technological shifts, demographic shifts, social shifts), the curve appears to have peaked.”
It has been estimated that the construction of high-speed rail will result in the emission of ten million metric tons of greenhouse gasses (GHG). Ten million metric tons is what would be emitted if six million fifty-foot tall trees were burned, roots and all. The Authority says it will somehow mitigate this environmental damage and then run its trains on 100% renewable power. This seems unlikely given the fact that the Authority is not funding any renewable power plants to propel its electric trains. However, the Authority’s claims go largely unchallenged because GHG emissions were never studied thoroughly in the Program EIR. California’s Global Warming Initiative and a growing worldwide concern over GHG emissions came after the Program EIR was completed. Instead of focusing on GHG emissions, the Program EIR focused on energy savings and making California and America more energy independent. Today America is within reach of becoming energy independent with no high-speed rail while new federal standards require the energy efficiency of cars sold after 2026 to be twice as high as the levels used in the Program EIR.
Secretary Chao would be on firm legal ground were she to rescind the November 2005 Record of Decision approving the High-Speed Train Alternative and demand that a new supplemental program EIR be written clearly spelling out to all Californians and to all Americans exactly what high-speed rail system California can credibly fund and construct. Then compare that system and its environmental costs and benefits to other reasonable transportation alternatives, including doing nothing extraordinary, before spending another dollar on California high-speed rail or condemning one more parcel of private property for its right-of-way.
 National Environmental Policy Act (NEPA), Section 1502.9. http://www.ecfr.gov/cgi-bin/text-idx?SID=a65243887a107002d9a3fa484df40b09&mc=true&node=se40.37.1502_19&rgn=div8
 California Environmental Quality Act (CEQA), Section 21166. http://resources.ca.gov/ceqa/docs/2016_CEQA_Statutes_and_Guidelines.pdf
 NEPA and CEQA: Integrating Federal and State Environmental Reviews, page 37. https://energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf
 U.S. Department of Transportation/Federal Railroad Administration Record of Decision – California High-Speed Train System, page 3. http://www.hsr.ca.gov/docs/programs/eir-eis/Federal%20Railroad%20Administration%20Record%20of%20Decision%20for%20Final%20Program%20EIR_EIS.pdf
 California Public Utilities Code, Section 185033(a). http://codes.findlaw.com/ca/public-utilities-code/puc-sect-185033.html
 CHSRA Central Valley Segment Funding Plan Final – January 1, 2017, page 12, Exhibit B-1. Funding Sources to Complete the Central Valley Segment. http://www.hsr.ca.gov/docs/about/funding_finance/CV_Segment_Funding_Plan.pdf
 The Federal ROD approved the statewide HST system alternative spelled out in the Final Program Environmental Impact Report (EIR) for the Proposed California High-Speed Train System. No system smaller than the entire statewide system (i.e. Phase 1 connecting San Francisco and Los Angeles) was addressed in the EIR.
 U.S. Department of Transportation/Federal Railroad Administration Record of Decision – California High-Speed Train System, page 9, Table 1 HST Performance Criteria. http://www.hsr.ca.gov/docs/programs/eir-eis/Federal%20Railroad%20Administration%20Record%20of%20Decision%20for%20Final%20Program%20EIR_EIS.pdf
 Caltrans District 6 Transportation Concept Report for I-5, February 2013.
 FAA Website, Passenger Boarding (Enplanement) and All-Cargo Data for U.S. Airports. http://www.faa.gov/airports/planning_capacity/passenger_allcargo_stats/passenger/
 California High-Speed Train Final Program EIR/EIS, Appendix 4-B Capital Cost: Aviation Component of Modal Alternative, page 4-B-1. http://www.hsr.ca.gov/docs/programs/eir-eis/statewide_final_EIR_vol3appendix4.pdf
 California Department of Finance Demographic Research Unit, June 2000 Report
 California Department of Finance Demographic Research Unit, May 2016 Report
 2014 Traffic Volumes on California State Highways reported by Caltrans, 5 Year Traffic Trend, page ii. http://traffic-counts.dot.ca.gov/docs/2014_aadt_volumes.pdf
2009 Traffic Volumes on California State Highways reported by Caltrans, 5 Year Traffic Trend, page ii. http://traffic-counts.dot.ca.gov/docs/2009_aadt_volumes.pdf
Note: An error was reported on the Traffic Volumes on California State Highways Years 2009, 2010, 2011, and 2012. Located in the Preface (Page ii), Traffic Trend on Year 2008 over 2007 reads +3.5%. This Note is found on the Caltrans website linking to the Year Traffic Volumes cited above. Instead, this number should be reported as -3.5%.
 Law360. The Pros And Cons Of Virtual-Only Shareholder Meetings. Lisa Fontenot and Linda Dang. https://www.law360.com/articles/866760/the-pros-and-cons-of-virtual-only-shareholder-meetings
 Minnesota Journal of Law, Science and Technology, Climbing Mount Next: The Effects of Autonomous Vehicles on Society, Profession David Levinson, Civil Engineering Dept., University of Minnesota. https://conservancy.umn.edu/bitstream/handle/11299/172960/6%20MJLST_v162_Levinson_787-810.pdf?sequence=1&isAllowed=y
 Life-cycle assessment of high-speed rail: the case of California. Mikhail Chester and Arpad Horvath, January 2010, page 6. http://iopscience.iop.org/article/10.1088/1748-9326/5/1/014003/pdf.
 California Air Resources Board -Compliance Offset Protocol Urban Forest Projects, Adopted: October 20, 2011. Appendix B Calculating Biomass and Carbon – Quantification Methodology, Example of tall hackberry (Celtis occidentalis) sequestering 477.30 kg (.4773 metric tons of carbon). Equates to 1.75 metric tons of CO2/fully grown tree. https://www.arb.ca.gov/regact/2010/capandtrade10/copurbanforestfin.pdf