Last time, we got an overview of how the California Environmental Quality Act (CEQA), can affect rail projects in general. In this entry in the series on how CEQA holds back clean, transformative electric rail, we’ll do a deep dive into how CEQA litigation caused serious delays to Caltrain electrification, set to finally open electrified service in late 2024 after numerous setbacks.
A strong environmental and social case for electrification
Caltrain planners developed a proposal to electrify 51 miles of the system between San Francisco and San Jose (serving 25 stations in seventeen cities) and to modernize signaling to accommodate higher levels of service demand, decrease trip times, increase reliability, reduce local and global emissions and reduce operating costs.
According to Caltrain’s own analysis, the new system would improve regional air quality by up to 97 percent and take 619,000 daily vehicle miles off the region's roads by 2040. This is clearly a project that would benefit the environment (not to mention the regional economy) greatly.
CEQA process for Caltrain Modernization
In January 2013, Caltrain began preparing a draft environmental impact report for the project as required under CEQA, which was released in February 2014. The public provided comments on the draft environmental impact report.
Subsequently, Caltrain released a final environmental impact report in December 2014 with responses to comments from the public and public agencies.
Fifteen of the seventeen cities along the proposed project assented to the project. Two cities, Menlo Park and Atherton, continued to oppose the project when Caltrain’s Board approved the final environmental impact report in January 2015 and issued CEQA litigation threat letters.
Let’s look at each city’s objections in turn:
Menlo Park raised four issues:
- More service, especially off-peak service, for their stations.
- “[A]appropriately designed and built grade separation” to avoid motorist delays from additional service. Specifically, Menlo Park wanted Caltrain to build either a train trench under Ravenswood Avenue or dig a trench for Ravenswood Avenue to pass under Caltrain’s tracks. Menlo Park specifically opposed viaducts, the cheapest, easiest and fastest to construct option, for such grade separations designs.
- Replacement of all significant and heritage trees removed as part of catenary pole construction with 3x as many new trees.
- For Caltrain to rule out as part of their partnership with California High-Speed Rail Authority “any blended system that results in an elevated structure, any future expansion that results in four tracks unless underground and any system which adds passing tracks in Menlo Park.”
Atherton raised the following issues:
- They perceive Caltrain’s rail electrification as part of California High-Speed Rail Authority’s plan for blended service along the Peninsula, which they oppose.
- Aesthetic impacts of catenary wires in Atherton.
- Opposition to side track catenary pole alignment due its requirement of tree removal and demand that Caltrain implement center track catenary pole alignment within Atherton municipal limits.
- That Caltrain did not adequately study “modern diesel options” as an alternative to rail electrification.
- Restored service at the Atherton station.
- Permanent closure of the Atherton station if Caltrain’s proposed station redesign does not meet Atherton’s community needs.
Before we examine these issues substantively in turn, it’s important to note that a minority of these demands are related to the rail electrification project itself or the environment under CEQA.
Additional service, the closure or re-opening of a station, grade separations and design demands on an agency separate from Caltrain are all separate projects from the issue at hand. Nonetheless the risk of a CEQA lawsuit permits Menlo Park and Atherton to use such leverage despite their tenuous, at best, connection to rail electrification.
Wouldn’t these comments and demands be better addressed through the environmental review and political processes of each separate project or program?
Yes, but let’s consider them in turn anyways.
Increased service, especially off-peak service
This is a constructive request. Electrified service makes such increased service possible through faster and more reliable trips and lower operating costs. Indeed Caltrain’s 2040 Business Plan and proposed electrified service plan for late 2024 illustrates exactly this. Indeed increased and off-peak service is exactly why Caltrain embarked upon the rail electrification project. Why is this demand from Atherton and Menlo Park even necessary?
Decreased service
Atherton sought the closure of Atherton station if Caltrain insists on certain station re-designs. This is not contingent on rail electrification. Atherton was free to discontinue service whether rail electrification proceeded or did not. Indeed Atherton permanently closed its Atherton station in 2020 as the rail electrification project was under construction.
Prevention of tree removal/tree replacement
Tree removal and requirements for tree replacement is one of the few demands here that is actually related to the proposed project AND is an environmental impact. Nonetheless tree removal and replacement requirements can be addressed through environmental planning regulations rather than environmental review. Indeed Caltrain would be subject to Menlo Park’s 3:1 tree replacement ordinance as part of any cooperative agreement or building permit for work as part of the rail electrification project.
Catenary Alignment
Similarly, given that 15 of the 17 cities along the alignment agreed to a trackside catenary alignment (Cf. a center track catenary alignment) is it in the public’s interest to provide a bespoke catenary alignment just for Atherton? Could Atherton’s preference for trees be better handled through tree replacement regulations rather than a veto on the catenary design through ¾ mile of ROW in the city?
Aesthetic Impacts
The aesthetic impacts of catenary wires on the people of Atherton is also a demand related to the project and properly a CEQA environmental impact. Nonetheless, it is one of the most frustrating objections presented by either city. Such objections privilege the psychological comfort of affluent homeowners who cannot stand the sight of a wire over the mobility needs of hundreds of thousands of riders, air quality for residents, and reduced VMT for the benefit of everyone on a warming planet.
More Diesel Studies
Likewise, Atherton’s demand that Caltrain further study diesel alternatives with no wires treats endless study of some speculative technology as superior to making the immediate transition to proven zero emission technology.
The last two objections are about other projects.
CAHSR
First, Menlo Park and Atherton object to rail electrification as part of a larger movement towards blended service with CAHSR. Rather than properly take their objections to CAHSR through CAHSR and its own political and environmental review processes, Atherton and Menlo Park thought of taking Caltrain’s project hostage. This is suboptimal policy for a federalized state like California, to say the least. For one, Caltrain cannot force CAHSR to preemptively take design options for Menlo Park off the table or commit CAHSR to them. Second, it creates incentives for actors to make expensive, costly demands on lead agencies with no power to implement them at no cost to the demanders. Third, even if Caltrain could force CAHSR (or another pair of agencies) to some designs preemptively through CEQA threat and litigation, that undermines community planning as CAHSR between San Francisco and San Jose was only in very preliminary stages at this point. Suddenly only those with the resources to sue an agency by proxy through another agency’s project can have a voice on the planning. Perhaps other groups did want elevated tracks or wanted passing tracks in Menlo Park.
“Sorry, you missed your opportunity to influence the design on this project because someone else sued an unrelated project years ago.” This is the opposite of community planning since it privileges communities wealthy enough to engage and litigate on unrelated projects to shape the planning of their target project.
Grade Separations
Finally, Menlo Park makes incredibly specific demands for design and implementation of grade separations that they insist must be paid for entirely by Caltrain. The grade crossings in Menlo Park have existed for over 120 years. Menlo Park has been free to plan, fund and implement grade separations in the past as well as in the future. Certainly Caltrain can and should be (and is) a partner on grade separations. But a regime that facilitates such demands, especially such demands that take the easiest and cheapest methods of construction off the table, and arms them with the leverage of a CEQA lawsuit is a recipe for slow, expensive project delivery.
CEQA Lawsuit
Ultimately Menlo Park opted not to file a CEQA lawsuit. But Atherton did so as their attorney Stu Flashman filed a CEQA challenge in February 2015. Now with sixteen of seventeen cities in line, after years of project planning and two years of environmental review, Caltrain’s rail electrification project was at risk. While the agency opted to pursue advanced design of the project after the lawsuit was filed, it was forced by the lawsuit to delay its applications for federal funding and construction procurement given the risk of an adverse ruling. This delay, as we will see, will cascade into further delay and cost escalations.
- In order to close a funding gap for the project, Caltrain sought a ~$600m grant from FTA. But FTA would not commit to such a grant until the lawsuit was resolved.
- In order to move forward on the early works of the project that could be funded by local sources, Caltrain signed contracts with a contractor for the project in the summer of 2016.
- And in September 2016, the Superior Court rejected Atherton’s CEQA lawsuit in total.
However, the 19 month delay by Atherton’s CEQA lawsuit inflicted serious damage on Caltrain. Atherton waited until November 2016 to formally decline to appeal. By that time Donald Trump was elected President. And in the chaos between election day and the last day of the Obama administration the FTA was unable to get Caltrain’s $600m grant out the door.
When Trump took office, his appointed DOT Secretary Elaine Chao refused to release the FTA grant to Caltrain and ordered further review. Only after a year of intense lobbying by California’s congressional delegation, including by then Minority Leader Nancy Peloisi, did the Trump administration release the FTA grant to Caltrain.
By virtue of the CEQA lawsuit from Atherton, Caltrain’s ability to proceed with the project was delayed three years. And because of that delay, Caltrain was obligated to pay higher material and labor costs for the construction as well as delay costs of $20m to their contractors. The project budget ballooned from $1.5 billion in 2012 to $1.9 billion in 2017. These delays, in turn, created further delays and further cost increases as Caltrain sought additional funds to fill the gap. It’s a vicious cycle for infrastructure projects.
These are the real costs associated with CEQA litigation as applied to rail electrification. Were they worth it to facilitate Atherton’s ability to make demands about aesthetics, service and an unrelated project? Probably not.
The costs weren’t limited to Caltrain electrification, either. The lawsuit created reverberating effects throughout the state, with many rail agencies refusing to seriously consider overhead electrification for their emissions reduction plans. Stay tuned for the next installment to learn more about how CEQA is stopping electric rail projects before they even start.
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