Tuesday, December 6, 2011

Mike Brady's Lawsuit against the CHSRA, and Tracy Wood's comments

Here's a great piece from Tracy Wood and the Voice of Orange County.  It talks about, among other things, the lawsuit filed by Mike Brady.  One minor point; Mike is not from Richmond, he's from Menlo Park, and lives around the corner from me.

Tracy did some good homework on Mike and what his lawsuit could mean.  The word is already out that the rail authority, which in the past has sneered at lawsuits, is seriously concerned and taking this one as consequential.  

Basically, Mike argues that the rail authority is breaking the law by funding the 100 miles of track it intends to lay in the Central Valley. (How could they not have known that?)

The Legislative Analysts Office agrees with him and has filed a Report saying so.

A word about Mike. He's a retired attorney and the totally polar opposite of me politically.  Nonetheless, we've been working closely together, with Morris Brown, opposing High-Speed Rail in California since long before the 2008 elections which put the project on the California map. 

Today's readers may not appreciate just how unpopular it was to oppose high-speed rail before and right after the 2008 elections. 

And, as everyone now can note, things are different.  The media have come out, full force, in opposition.  The polls, as we pointed out earlier today, indicate a complete turn-around of the California voters. 

To interject a note of cold realism.  This project is far from dead.  It is, however, on the Democratic Party heart-lung machine and it's survival is totally dependent on Party politics, the Republicans opposing it, successfully, in the Congress.  And, while HSR struggles to survive in Washington, the Democratic majority and the Governor in California are clinging, like to a life-preserver, to the $3.3 billion that can be bestowed on our state by the Department of Transportation.

Tracy Wood's HSR critics in California have not so much power to move in for any "kills," although their efforts have not gone unnoticed. Indeed, they have been singularly persuasive. 

And Tracy's effective criticism may also have contributed to the great awakening that we are now observing in California.

Thanks, Tracy.

Critics of State's High-Speed Rail Plan Moving In for the Kill
Posted: Tuesday, December 6, 2011 12:00 am

Three years ago last month, California voters approved a $42-billion proposal for a high-speed rail system that promised bullet trains going back and forth between Anaheim to San Francisco.

The ride for the program since that November day has, to say the least, been bumpy.

Auditors have lambasted its management, legislators have slammed its public relations, and academics have poked holes it its ridership estimates. And during the course of all this criticism, the project's price tag ballooned to $98 billion.

Now with a September deadline to break ground or lose $3 billion in federal funding looming larger by the day, high-speed rail opponents seem to have the program surrounded with an arsenal of legal and policy weapons and are primed to move in for the kill.

Consider the events of the past few weeks:

--A lawsuit filed on behalf of the Kings County Board of Supervisors and two area farmers contends the scaled-down project fails to meet construction and financial requirements approved by California voters in 2008. The suit asks the courts to bar state officials from using state bond funds on the proposed initial section.

--Republicans, who control the U.S. House of Representatives and oppose the rail plan, have scheduled a special Transportation and Infrastructure Committee hearing Dec. 15 solely to hear about the California project.

--California's nonpartisan Legislative Analyst's Office last week issued a report asserting that as is, the project can't tap into state funds because it doesn't meet requirements imposed by Proposition 1A, the 2008 ballot initiative.

Rachel Wall, spokeswoman for the California High-Speed Rail Authority, said agency leaders believe they are in compliance with 1A and staff has been meeting with the analyst's office to discuss the issues it raised.
She added in an email, "Due to pending litigation the Authority cannot provide any additional comments at this time regarding its statutory compliance."

But Michael J. Brady, the Richmond lawyer who filed suit on behalf of Kings County, says the High-Speed Rail Authority is wrong. "They're [state high-speed rail officials] in a real bind," he said. "They're in violation of 1A in very important respects."

The 2008 Ballot Initiative

When voters approved high-speed rail, the ballot initiative included specifics that must be met before any of the $9 billion in state tax money it authorized for the project can be used, Brady said.

The purpose, he said, was to protect state taxpayers from a rail project that used up the $9 billion state allocation without producing a true high-speed rail system or wound up requiring taxpayers to underwrite operating costs.

The lawsuit Brady filed in Sacramento Superior Court last month alleges the present plan fails to meet important requirements of state law and asks the court to prohibit California officials from allocating the 1A bond money until the requirements are met.

Among pivotal issues raised by Brady is an argument that the 130-mile initial segment through the Central Valley will cost $3 billion in federal stimulus funds and a match in state 1A bond funds, but it won't meet the 1A definition for high-speed rail.

"The suit first claims that the Authority plans to spend billions constructing a NON HSR [high-speed rail] SYSTEM in the central valley — a conventional rail system that is not even electrified, and that the voters of California never intended for their money to be used for conventional NON HSR projects," assserted a news release accompanying the Nov. 14 lawsuit.

In addition, Brady argues the rail authority only has 20 percent of the $30 billion it says it needs to build the initial working high-speed section. Under the law, he said, Proposition 1A money can't be allocated until money to cover the full cost of the section is in place and accessible.

Furthermore, the suit contends an operating subsidy will be needed to run the initial section, a plan that is outlawed under 1A.

Finally, suit asserts that required environmental impact reports haven't been finished as required by law, and most recently a Sacramento court disallowed a proposed environmental impact report.

"It's a mess," said Brady in a telephone interview. "They have a huge hurdle to overcome."

Brady's viewpoint is supported, at least in part, by the legislative analyst's report to the Legislature last week. 

The analyst's office stated that rail leaders failed to account for all of the money they will need to build the first usable segment of the system. Without that, the analyst asserts, the project doesn't comply with 1A and isn't eligible to tap into state funds.

The Legislative Analyst's Office is the nonpartisan office that advises lawmakers. Its recommendations normally carry substantial weight.

In addition, it said the project "has not yet completed all environmental clearances for any usable segment and will not likely receive all of these approvals prior to the expected 2012 date of initiating construction."

If those obstacles aren't enough, rail officials must persuade House Republicans that California has a viable high-speed rail plan that deserves additional federal funds. Right now, further federal appropriations are being blocked.

House Republicans are also trying to stop the $3 billion in stimulus funds from going to the California rail project.

The Los Angeles Times reported last month that Rep. Jeff Denham (R-Atwater), a subcommittee chairman on the House Transportation and Infrastructure Committee, believes Congress can retrieve the federal grants that have been allocated to California's high-speed rail and use the money instead to build highways in the Central Valley.

Democrats in the U.S. Senate probably would fight efforts to rescind the federal grant, according to the Times. 

But the Dec. 15 transportation committee hearing could unleash another round of attacks on the rail plan.

Please contact Tracy Wood directly at twood@voiceofoc.org and follow her on Twitter: twitter.com/tracyVOC.

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