Back in December, the Outpost’s Ryan Burns told y’all that the California Supreme Court had agreed to step into the long-running fight between two local environmental groups and the North Coast Railroad Authority, the public agency that manages the mostly dead tracks between here and the Bay Area.
Today, those two groups — Friends of the Eel and Californians for Alternatives to Toxics — have filed their opening brief in the case, which seeks to undo the railroad authority’s late-in-the-game claim that it is not bound by state environmental law. (You can read the whole brief at this link.)
To recap a little bit: Back in 2013, the NCRA — an agency of the state of California — reversed course and decided that it was not subject to the California Environmental Quality Act (CEQA). It made this decision not only after taking lots of taxpayer money that was explicitly conditioned on compliance with the act, but after taking more taxpayer money specifically earmarked for paying for the environmental studies that the act required. (The Outpost had some coverage of the authority’s decision to ditch CEQA here and here.)
At the time, it was a pretty novel for an agency of the state to unilaterally claim it was above state environmental law. After all, CEQA explicitly requires all public agencies to comply with the law. But compliance had become inconvenient for the railroad authority after it became clear that the environmental impact report it did prepare would not pass court muster, and it found a section of federal railroad law which it used to argue that railroads could not be regulated by state governments. The lower courts sided with the railroad authority and that was that, until the California Supreme Court agreed to review the case.
In their opening brief, CATS and FOER make several interlocking arguments about the relationship between federal and state law in this matter. To boil it down: They argue that California is not regulating the NCRA’s railroad operations with its environmental law. Rather, the Environmental Quality Act is something that the state imposes on its own agencies, the NCRA being one of those. It’s not a regulation imposed on a third party in this case; it’s a set of standards it imposes on itself.
As the brief puts it:
The environmental review and decision process here is no more “regulation” of rail transportation than would be the internal corporate decision process of a private rail carrier evaluating whether to reopen the rail line. For example, a private carrier might assess market potential, evaluate local support or opposition, investigate environmental liabilities associated with moving forward, and undertake myriad other due diligence activities to gage the wisdom of proceeding. This internal decisionmaking could affect future rail transportation because the outcome would determine whether and how the private carrier finalizes and implements its project. But it does not constitute “regulation of rail transportation” under the [Interstate Commerce Commision Termination Act], and no one could seriously argue that the ICCTA intrudes on such internal corporate business planning activities.
A self-imposed environmental impact report, in this reading, is akin to any sort of planning document that a private party might want to undertake before undertaking a business venture. The federal government isn’t going to preempt private railroad owners from doing that; why would it have any grounds to preempt public owners from doing the same? Quote:
Preemption not only would affect operation of the line’s Russian River Division, but also would preclude State environmental review of the Eel River Division, which traverses sensitive ecological areas. Without adequate CEQA review, the State could be saddled with ongoing and substantial liability for operation on that unstable part of the line.
There are 70-odd pages backing this argument and exploring its various implications — including the ironies of the authority using taxpayer money to perform environmental review, only to later deny that it is required to do environmental review — but that is the nut of it. That, and the argument that citizen groups such as their own do, in fact, have standing to bring suit under the California Environmental Quality Act.
The latter point is an important one. You might ask yourself: Hey, why isn’t the state of California stepping up and enforcing its own environmental laws? Why isn’t it slapping around its own railroad authority for refusing to follow its own laws? Why do Humboldt hippies have to do it for them?
Well, it might have something to do with the fact that the administration of Gov. Jerry Brown now has some skin in the game. His own pet project — high-speed rail from the Bay Area to Los Angeles — has been facing the same fight with environmental groups and local governments in the Central Valley. In that project, which dwarfs our own on every scale — money, most importantly — the Brown administration has been actively arguing against the idea that a California-owned railroad should comply with California environmental law. That fight looks to be headed to federal court. Courthouse News Service has a decent overview here.