Already 0 for 2, Neighbors for Smart Rail Take Their Case to the CA Supreme Court

Photo: ##http://www.flickr.com/photos/29300710@N08/4929656005/sizes/z/in/set-72157624689252327/##LA Streetsblog/Flickr##

The question of how far Neighbors for Smart Rail, a coalition of homeowners and community groups fighting the expansion of the Expo Line into West Los Angeles, were willing to take their legal challenges to the line is now answered.  They’re willing to take it all the way.

Last week, NFSR appealed to the California Supreme Court to overturn a decision of the 2nd Appellate Division of the California Superior Courts to uphold the environmental documents supporting the construction of Phase II of the Expo Line.  Phase II of the Expo Line will pick up where Phase I ends in Culver City and extend the line to Downtown Santa Monica.  The Supreme Court has not announced whether it will hear arguments or issue a ruling in the case.

While NFSR has many complaints with the Expo Line and how the line was approved; court watchers are pointing to one specific complaint that has likely caught the Supreme Court’s attention: “The Baseline Issue.”  NFSR has argued in two court rooms that the Expo Authority used an improper baseline for analyzing the impacts of the Expo Line on automobile traffic, air quality and greenhouse gas emissions.  The Expo Construction Authority evaluated the impacts on conditions it projected to exist in 2030. NFSR argues that instead of future conditions the Authority needed to look at current conditions as its baseline, not ones from an uncertain future.

NFSR’s legal team points to two cases Madera Oversight Coalition, Inc. v. County of Madera (5th District Court of Appeals, 2011) and Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (6th District Court of Appeals, 2010) where state appellate courts ruled that agencies cannot use future conditions as a baseline when evaluating the environmental impacts of proposed projects.

The Second Appellate Court didn’t just reject the argument affirmed by the other courts, it emphatically rejected it.

So it’s not a surprise that the Supreme Court could step in.  While there are clear differences between Sunnyvale, Madera and the current case; it makes sense for the top court in California to make a definitive statement on what can, and what can’t, be used as a baseline in state mandated environmental studies.

Regardless of the outcome of this case, we’re likely at the end of the road, legally speaking, for the challenges to the Expo Line.  Unless of course the court merely requires that the Authority re-do the environmental studies with a new baseline.  If it stops construction while it waits for the new study, such a ruling could add years to the opening date of Phase II.  If it orders a new study but doesn’t stay construction, then all of these legal challenges could end up resulting in new studies and more chances to have more legal challenges.

(Note: The Expo Construction Authority does not comment on active lawsuits.  NFSR representatives were asked to comment for this story but did not respond by publication time.)

(Note 2: An earlier version of this story implied that the Supreme Court had already decided to take up the case.  That is not true and the story has been altered slightly to reflect that.  Thanks, Jonathan.)

  • The best part is the sign in that picture… they (supposedly) WANT the train, but want it to be a subway and have it pictured going right under a school. Please someone tell Beverly Hills that having a train going under your school is actually one of the safer options…

  • Anonymous

    That’s too perfect…good catch!

  • Anonymous

    I’m confused, I thought kids and cars don’t mix. How many kids get killed each year from cars as well as discourage them from playing in the street vs kids getting killed by trains? Should all cars be tunneled under the school as well?

  • Jonathan Weiss

    The “subway” – such as on the Eastside Gold Line – would not have been under the school.  It would have been under the ROW, which is across the street from the school.  

  • Jonathan Weiss

    The Supreme Court is not “stepping in.”  Not yet, at least.  It is being asked to step in.  Chances are better than usual that it will step in to resolve the possibly conflicting authorities, but, for now, the Court is considering whether or not to take the case.  Unlike the Court of Appeal, it is not required to take this case.

  • Eric B

    For those of us that like to dig into the nitty gritty of CEQA, this really is a fascinating case.  In Sunnyvale, the City was told it could not measure impacts against a future baseline that showed conditions improving over time (after an uncertain project was to be constructed).  That future baseline arguably underestimated impacts of the subject project because it made an assumption that the future would improve.

    In the NFSR case, Expo assumed that traffic would naturally get worse, and so measured the project’s impacts against already degraded conditions.  Essentially, NFSR’s case is that Expo should have used a more favorable baseline by evaluating the project against traffic that isn’t as bad as it will be when the project is operational.

    By upholding the Court of Appeal decision, the Supreme Court will affirm that lead agencies should be conservative in their baseline selection by choosing the one that is less favorable to the project.  If they overturn, it will be unclear how agencies are supposed to account for impacts in the future.

  • Dan W

    I look forward to these NIMBY’s paying even more of Metro’s attorney’s fees in their losing legal battle.

  • Anonymous

    I guess Luddites like orange?

  • Jonathan Weiss

    They won’t pay a dime.  The lawsuit is brought by a non-profit corporation.  If they lose, they’ll just close up.  

  • Anonymous

    Not so fast Damien…NSFR can also go straight to the US Supreme Court as the last bastion of hope of overturning the Expo Line!

  • Geraldo’s Mustache

    Now if that sign said Cars and Kids don’t mix, it would be closer to the truth.  

  • Jim61773

    I don’t like these guys, but they’re not Luddites.  The sign clearly shows a subway train underneath a school.

    A Luddite would be somebody who opposed technology — such as electronic fare cards or RFID fare gates or something.

  • I’m not sure how it would fall as a federal case.  There was no NEPA review of the project, so there was no federal oversight.

  • Even if there were a federal review of this case (which I’m thinking is unlikely, for the reasons Damien outlines), the Supreme Court simply doesn’t hear the vast majority of cases that people try to send their way. NFSR can write up a petition for cert, but it’s almost certainly going to be denied.

  • Greg

     I have been considering making those very signs, “Kids and Cars don’t mix!  Car-free school zone needed!” or something and protesting in front of BHHS.

  • Anonymous

    @5be0f8d6df79ab9287f317481290edab:disqus 
    Have I ever stated that I was against a properly implemented RFID card (which TAP surely is not)?

    Do you know of any major system in the world that has unstaffed RFID-only turnstiles?
    And is Berlin or Zurich or Prague a bastion of Luddites?

  • Anonymous

    Look at Jim61773 dishing it out. 

    Good work, buddy :)