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Law Offices of Stuart M. Flashman

Memo To: Planning and Conservation League, BayRail Alliance, California Rail Foundation,

Transportation Solutions Defense and Education Fund

From: Stuart M. Flashman

CC: Town of Atherton, City of Menlo Park

Date: December 3, 2009

Re: Legal implications of the Court’s judgment in Town of Atherton et al v. California High Speed Rai Authority

Question Presented:

You have asked me to provide you with information that you could distribute to the press and the public about the legal implications of the Court’s judgment in the above-referenced case. Please be aware that, because this memo is intended for distribution to the public and is therefore not protected by attorney-client privilege, the information provided herein will be limited accordingly. Discussion

On December 3, 2009, the Board of Directors of the California High-Speed Rail Authority is taking official action to comply with the Final Judgment and Peremptory Writ of Mandate in the litigation entitled, Town of Atherton, et al., v. California High-Speed Rail Authority, et al., Superior Court Case No. 34-2008-80000022. (Copies of those documents are attached to this memo.) Specifically, the Board of Directors is considering adopting a Resolution that: • Rescinds Resolution 08-01, including all certifications and approvals included therein

[Resolution 08-01 was the Resolution that “certified” the Final Program Environmental Impact Report (EIR) for the Bay Area to Central Valley High-Speed Train System as being in compliance with the California Environmental Quality Act (CEQA), and that approved the Pacheco Pass Network Alternative with San Francisco and San Jose Termini, preferred alignments, and preferred station location options for further study in project-level EIRs];

• Directs its staff to “prepare the documentation needed to comply with the final judgment in the

Town of Atherton litigation and to circulate such documentation for the public comment period required under the California Environmental Quality Act; and

• Directs its staff to present an informational staff report to the Authority at the next regularly

scheduled meeting following the close of the public comment period on the corrected material.

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In essence, what the Court ordered, and the resolution does, is to rescind all of the actions earlier taken by the Authority with respect to certifying the EIR and granting approval for the Bay Area to Central Valley High-Speed Train System, including approval of the Pacheco Pass Network Alternative with San Francisco and San Jose Termini, preferred alignments, and preferred station location options. The resolution effectively erases the Board’s decisions as to the route selection it previously chose. Of course, the Court could not, and did not, order the Board to change its mind about what route to choose. It seems likely, especially based on statements by Authority staff and Board members, that the Board and staff of the Authority continue to believe that the Pacheco Pass alignment, the Network Alternative with San Francisco and San Jose Termini, and the preferred alignments and preferred station location options that the Board previously selected remain the “right” choice for the routing into the Bay Area. However, with the rescission of the Board’s prior actions, that belief is simply a “preference” and has no legal significance. Under the Court’s judgment, the Authority will not legally be able to decide the routing issues until it has completed a revised Draft EIR, circulated it for comments, adequately responded to those comments, and certified a revised Final EIR. Only then will it be able to re-address the question of a choice of alignments, termini, stations, etc. CEQA is very clear that comments on the entire revised Draft EIR will be in order, that cities and other governmental entities, individuals, and organizations, even those that did not participate in the prior CEQA process, will be able to submit comments, and that all those comments must be appropriately addressed. To state this more directly, the Final Judgment and Writ of Mandate issued to the Authority does not limit the scope of the CEQA review process to those issues specifically found by the Court to be inadequate in its review of the earlier EIR/EIS. The Final Judgment specifically states that the Authority must “revise the Environmental Impact Report/Environmental Impact Statement for the Bay Area to Central Valley High-Speed Train Project in accordance with CEQA, the CEQA Guidelines and the Final Judgment entered in this case prior to reconsidering certification of that EIR/EIS [emphasis added].” That means that a full CEQA process has been required by the Final Judgment, not a “partial” or “attenuated” process. Of course, the Court did not find the prior EIR totally defective. The Court held that many parts of that EIR were adequate, given the scope of the record before the Authority and the Court. Whether that would be the case with a new EIR, based on a new record, remains to be seen. As has been noted numerous times in CEQA jurisprudence, the conclusions in an EIR must be supported by substantial evidence in light of the entire record. With the Court’s judgment, that record has been reopened, and the Authority will have to make its decisions based on the entirety of that record, not just that portion that had previously been reviewed by the Court. In order to assure that the Authority has full information before it on all of the various factors that might result in significant adverse environmental impacts from the proposed High Speed Rail project entering and running through Bay Area, interested parties would be well advised to vigorously participate in the upcoming CEQA review.