Saturday, June 25, 2011

Third part selected from the Cox/Vranich Reason Foundation Due Diligence Report

    We have been printing sections of the Reason Foundation Due Diligence Report recently, 

and here is another section from that report.  To remind you, this report of 185 pages was released in September of 2008, prior to the Proposition 1A bond issue on the November ballot.  

The rail authority was required, by statute, to issue a business report and have it reviewed by a peer review committee prior to that election.  They failed to do so.  Nonetheless, the bond issue remained on the ballot and was passed by the voters.

This year, an appellate court in Sacramento found that the language of that ballot, written by the Legislature, was rigged in favor of bond passage, with much promotional and marketing hype embedded in what is required to be very neutral language. The court ruled against this process, citing the Proposition 1A language as prima facie evidence. 

Had this Due Diligence Report been picked up by the media and the truth about the HSR project revealed to the voters before the election, they might have made a much wiser decision and turned the project down.  Well, we know what happened and where we stand now.

We've presented the Executive Summary and the Introduction to this major paper, and here is the fundamental rationale; that is, why the paper needed to be written.

The Necessity for Due Diligence

A California Senate Committee observed that the public 
deserves a full accounting of the project’s risks and 
benefits because the project has been portrayed as 
a future commercial success. This study relies on 
empirical data, historical trends and other data to 
apply a due diligence process to this proposal.

The Authority has spent $58 million in public funding 
to promote and plan for high-speed rail links among 
the state’s major population centers. Due to the magnitude 
of the project and because the project has been portrayed 
as a future commercial success, there is a need for a due 
diligence examination of this plan.

To this end, this work is based on a methodical analysis 
of the rail proposal—the type that would be conducted 
by potential investors prior to advancing capital in support 
of a business proposal, project, venture or transaction. 
In the business world, due diligence means undertaking 
sufficient independent analysis to ensure that an acquisition 
is worth the proposed price.

Addressing Investment Risk

The state Senate Transportation and Housing Committee 
recently set the precedent for addressing taxpayers as 
investors and helps set the stage for everything that follows 
in this Due Diligence Report.  Hence, the logic as it appeared 
in a June 2008 report from the Senate Committee deserves 
to appear at the onset of this study and is summarized as 

The California High-Speed Rail Authority has embarked 
upon a $33 billion program to provide high-speed rail service 
between Anaheim, Los Angeles, and San Francisco. An
additional $7 billion will be required to extend service 
to San Diego and Sacramento. 

The project is not being developed as a conventional 
public works project to be built with pay-as-you-go funding, 
or by relying on public debt financing. Instead, the Authority 
is offering California’s voters a business proposition. 
Should the voters approve the $9.95 billion measure on 
November’s ballot, the Authority is anticipating using the 
bond revenues and future federal funds to attract a 
substantial amount of private capital. The Authority’s 
underlying assumption is that the demand for high-speed rail 
is so strong that it will attract a private consortium to design, 
construct, finance, and operate the high-speed system, 
one that will generate sufficient revenue to repay the 
consortium’s investment, cover the annual cost of operations, 
and provide a profit. The Authority assumes that the rail 
service will not require any future operating subsidy 
from the State of California. This will be a large and 
complex task given the uncertainty regarding federal 
funding and the limited state funding allocated to t
he project. Voters are being asked to make a major 
commitment. It is, therefore, imperative that voters 
and policy makers have a full accounting of the 
project’s risks and benefits.9

While the Senate Committee review is ground-breaking 
in presenting a serious discussion of investment risk 
associated with the project, it does not provide a level 
of detailed analysis. This report will perform that task. 
Moreover, the emphasis on risk in this document is 
justified because the CHSRA business plan is advocacy 
in nature and perils appear to be understated.10

In preparation for this study, thousands of pages 
of CHSRA’s documentation spanning approximately 
a ten-year period have been reviewed. Also, reports 
from other state and federal agencies and documents 
from overseas high-speed rail systems have been 
examined. This report attempts to clarify material 
facts and outline foreseeable risks that have received 
insufficient public attention. Hence, it is a 
Due Diligence Report designed to help policy 
makers make informed decisions with respect 
to public funding. The Senate Committee report 
insists on the value of a prospectus in stating:

The Authority must update its business plan in a format 
consistent with a standard financial prospectus of the 
type that is required to be prepared for investors in 
new stock or bonding offerings. A prospectus discusses 
the investment opportunity, its financial strategy, 
its benefits to the investors, as well as the types 
and level of risk the investors are assuming. It is 
essential that voters be provided with adequate f
inancial information concerning the project.11

Californians are being asked to be investors in a project 
being portrayed as a future commercial success, but 
the CHSRA’s documentation often relies on theoretical 
capabilities or reflects advocacy positions. This study 
relies on empirical data, historical trends and other 
data to evaluate key issues related to the program, namely:

•• Ridership and marketability
•• Demographics
•• Costs and overall financing
•• Operational issues including safety
•• Train Speeds
•• Technological developments and limitations
•• Greenhouse gas emissions
•• Community factors
•• Possible line truncations or route substitutions
•• High-speed rail experience elsewhere
•• Highway and airport alternative scenarios
•• Adequacy of planning

Moreover, this Due Diligence Report follows the 
admonition of the U.S. Securities and Exchange 
Commission (SEC) that disclosure documents should 
“speak to investors in words they can understand. 
Tell them plainly what they need to know to make 
intelligent investment decisions.” 12 

Indeed, policy makers and private parties will be 
making investment decisions regarding the high-speed 
system when they make decisions about public funds 
or commit their own private investments.

Limitations to Review

The following challenges were encountered in this 
due diligence analysis, as a result of difficulties and 
inconsistencies in the CHSRA documentation.

•• Reference Years. At the time of this analysis, 
the horizon years of the CHSRA source documents 
are inconsistent. As one example, in some cases 
the latest available projections are for 2020 while 
in other cases 2030 projections are available.

•• Data. Important data have varied widely. For 
example, various documents differ in the proposed 
route structures and estimated seating capacity of 
the high-speed trains. These variables could negatively 
affect the ridership that can be expected and thus 
cause a concomitant decline in projected revenues.

•• Costs. Construction cost estimates are inconsistent. 
The Senate Committee report cites $33 billion to build 
the first phase (San Francisco–Los Angeles–Anaheim) 
and an overall project cost of $40 billion. Presumably, 
this information was obtained from CHSRA. Yet, CHSRA 
documentation prepared for an investors meeting during 
virtually the same timeframe puts the figure at $45.4 billion.13

•• Ridership. Variations in CHSRA’s ridership projections 
claims are extensive and in many cases the data presented 
appear to be inadequate to support the conclusions reached. 
The Authority has acknowledged that it has commissioned 
a new ridership and revenue forecast. However, 
considering the exceptionally high demand that has 
been projected, it will be prudent for future forecasts 
to be subject to independent verification if they are 
to be considered plausible.14

Another function of a Due Diligence Report is to bring 
to attention costs that have been downplayed or overlooked.

•• Risk Minimization. Environmental impact documents 
are replete with references to using the Union Pacific 
Railroad (UPRR) right-of-way. In 2008 when the UPRR 
declared its unwillingness to sell its land, the Authority’s 
chairman said he was unconcerned.15

However, land-purchase costs could increase and 
re-alignments could affects speeds,
marketability and construction costs. A related issue 
is that landowners facing possible eminent domain 
proceedings may file legal challenges. Municipalities 
have already filed suits to require environmental 
impact statements to be redone.16 Consequences 
could include construction delays and cost increases.

•• Employee Injury Risks. A franchise operator will 
find exceptional risks regarding
worker injuries and payouts. An anachronistic law, 
the Federal Employers’ Liability Act
(FELA) passed in 1908, subjects rail operators to 
costly, arcane and time-consuming tort based 
provisions (all other industries are covered by less 
onerous no-fault workers’ compensation laws).17 
An attempt to exempt a franchisee from FELA is 
certain to be met by opposition from the rail labor 
unions and the trial lawyers’ lobby. It cannot be 
determined from the CHSRA documentation if 
such high-cost provisions have been included in 
operating cost projections.

•• Labor Demands. A risk exists that labor organizations 
will demand unique provisions in contracts with 
high-speed rail operators identical to what they 
have with Amtrak, particularly a labor protection 
clause that provides generous severance compensation 
for up to five years if a job is abolished or moved 
more than 30 miles. Amtrak’s protection obligations remain 
significantly higher than those of non-railroad 
corporations.18 Because of the strength of railway 
labor unions, and because it is typical for the 
federal government to impose labor protection 
regulations on assistance, it is likely that such 
provisions would be applied to a California HSR system.

•• Subsidies. Statements about taxpayer obligations 
are contradictory. For example, on January 11, 2008, 
the CHSRA chairman, Quentin Kopp, said at a state 
SenateTransportation and Housing Committee hearing 
that another bond measure after the November vote 
may be necessary if costs continue to rise.19 
Ten days later, on January 21, another CHSRA board 
member, Rod Diridon, insisted: “Having the people 
of California pay one-third the price of this project 
and then never again having to put money into a 
program that will expand and expand and expand 
is an awfully good deal for California.”20

After ten more days, on January 31, Chairman Kopp 
wrote to legislators: “We believe that if additional state 
funds appear needed for the remaining segments, it is 
the prerogative of the legislature to determine the amount, 
source and timing of such funds, similar to its action on 
Phase One.”21 By June 22, the chairman stated unequivocally 
that the HSR system would operate at a profit “without 
taxpayer subsidy.”22 

It is unimaginable that such inconsistent statements 
would be made by corporate executives seeking investor 
financing without running afoul of securities regulators.

The Authority has stated that the proposed high-speed 
rail system “is one of the world’s largest public works 
projects.”23 Thus it is even more imperative that all in
volved be cautious because “mega-project” financing 
has begun to breed mistrust. The leading worldwide 
infrastructure study on such projects concluded:

The cost estimates used in public debates, media coverage 
and decision making for transport infrastructure 
development are highly, systematically and significantly 
deceptive. So are the cost-benefit analyses into which 
cost estimates are routinely fed to calculate the 
viability and ranking of projects. . . . An important 
policy implication for this highly expensive and highly 
consequential field of public policy is for the public, 
politicians, administrators, bankers and media not 
to trust the cost estimates presented by infrastructure 
promoters and forecasters.24

This report finds that the CHSRA’s documentation and 
public statements are indeterminate as to the project’s 
commercial viability and indeed suggest that the project 
is not feasible. This report finds that the CHSRA’s 
documentation and public statements fail to confirm 
the project’s commercial viability and the analysis in 
this report suggests that the project is not feasible.


The California Senate Transportation and Housing 
Committee observed that CHSRA ought to provide 
a financial prospectus on the HSR project because 
the project has been portrayed as a future commercial 
success. This study relies on empirical data, historical 
trends and other data to serve in part as a Due 
Diligence Report. It finds that conclusions in the 
CHSRA documentation are inconsistent, cost 
estimates have not been updated, projections appear 
to be based on data inadequate to justify the 
conclusions reached, risks in several areas 
(e.g., rights-of-way, liabilities for exceptional 
employee costs) are understated or completely 
ignored, and statements about future taxpayer 
subsidies are contradictory. The Authority has 
yet to balance issuance of its many advocacy 
documents with cautionary documents that are 
typically issued in an investment environment.

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