Preliminary Federal Ruling Sides With Beverly Hills Against Metro Subway

Early version of possible Purple Line Subway alignments studied through Beverly Hills. Image via Metro
Early map of potential Purple Line subway alignments studied through Beverly Hills. Image via Metro

Last week, United States District Judge George Wu issued a ruling [PDF] in Beverly Hills’ legal battles against Metro’s plans to tunnel the Purple Line subway beneath Beverly Hills High School.

The Beverly Hills Courier portrayed the ruling as a victory for Beverly Hills in that Judge Wu chided subway proponents for “not properly considering the environmental effects of running a tunnel through an area riddled with abandoned oil wells and pockets of potentially explosive methane gas.”

Though the judge sided with Beverly Hills, agreeing that the subway environmental studies did not fulfill all the requirements of the National Environmental Protection Act (NEPA), the decision is more of a split ruling with some of Beverly Hills’ winning points more nitpicky than substantive.

There are a couple of lawsuits with multiple parties involved. The plaintiffs include the city of Beverly Hills and the Beverly Hills Unified School District. The defendants include Metro and the Federal Transit Administration (FTA). For the purposes of this article, SBLA simplifies the parties to “Beverly Hills” against “Metro.”

The ruling last week is in the federal court case; Metro won the state court case last year.

The lawsuit primarily centers on Beverly Hills’ criticism of Metro’s decision to relocate the planned Century City stop from Santa Monica Boulevard to Constellation Boulevard.

Metro studied numerous subway alignments, and ultimately chose a route that places the Century City station at the intersection of Constellation Boulevard and Avenue of the Stars. Though Constellation and Santa Monica are one block apart, Metro found that Santa Monica Boulevard would not work due to earthquake faults. The Constellation alignment effectively necessitates tunneling under Beverly Hills High School.

All in all, Beverly Hills raised nine issues where it asserted that Metro’s environmental studies (Environmental Impact Statement – EIS) failed to meet NEPA requirements. The court sided with Beverly Hills on half of those issues. In effect, though, Beverly Hills effectively only needs to prevail on one issue to find that Metro failed NEPA.

The conclusion of the 217-page ruling [PDF] reads:

The Court concludes that [Metro] failed its disclosure/discussion obligations … in connection with [Beverly Hills’] comments concerning the effects of tunneling through gassy ground and the risk of explosions; that it failed its disclosure obligations regarding incomplete information concerning seismic issues; and that it should have issued [additional environmental studies]. The Court also concludes that [Metro] failed to properly assess “use” of [Beverly Hills] High School under [recreational land law] due to the planned tunneling. In all other respects, the Court rules in favor of [Metro].

Metro, via spokesperson Dave Sotero, issued a statement on the ruling:

After a thorough review, Metro concludes that Judge Wu’s tentative rulings uphold the approved plans to build the Century City subway station at Constellation and to tunnel safely beneath Beverly Hills High School. Some of the findings are procedural, requiring the FTA to perform additional environmental analysis and provide a further opportunity for public comment. The majority of extensive environmental work was deemed sound. If the ruling holds, Metro will support FTA in meeting these additional procedural requirements. Time is of the essence. Any significant delay resulting from this case could jeopardize the timely delivery of this critically important transit project for all L.A. County residents.

After the jump are summaries of the nine specific areas of dispute in the lawsuit. Following those are possible next steps in the case. 

1 – Air Quality and Public Health

Beverly Hills asserted that Metro’s construction-related emissions air quality analysis was insufficient because the analysis did not account for local air quality, only regional.

The judge issued a mixed ruling on this point. It found that Metro “did not act in an arbitrary or capricious manner” considering air quality impacts. But, in regards to public health, the judge sided with Beverly Hills, asserting that Metro lacked “a more robust discussion of public health impacts at least insofar as NOx [nitrogen oxides air pollution] is concerned.”

2 – Methane Gas and Oil Wells

Beverly Hills contended that Metro did not sufficiently take into account the potential explosive dangers of methane gases and oil wells. Metro responded that underground gases and wells might be encountered, but Metro tunneling technology allows the agency to be successful getting through these safely.

The court responded that Metro analyzed oil well locations, and that Metro can tunnel safely through areas with oil wells, but sided with Beverly Hills that Metro had not “sufficiently crossed its t’s and dotted its i’s” regarding documenting potential impacts.

3 – Alternative Routing

Beverly Hills argued that Metro failed to analyze any subway routes to Constellation Station that would avoid tunneling under Beverly Hills High School, even though Beverly Hills presented alternatives that would do this. Metro cited a number of reasons why Beverly Hills’ alternatives were rejected, including that each would slow train speeds due to “sharp curves through Century City.”

On this issue, the court sided with Metro echoing Metro’s environmental studies: “[t]here is no reasonable tunnel alignment that does not pass under structures within the school campus,” taking into account the need “to achieve maximum safe train speeds between stations (by minimizing curves and grade differentials).” From the ruling: “In short, the Court concludes that [Metro] engaged in informed decision-making with respect to the assessment of alternatives relating to the approach to Constellation Station.”

4 – Predetermined Decision

Beverly Hills asserted that Metro showed favoritism using “the environmental analysis to rationalize a decision that had already been made.” Beverly Hills further accused Metro of making “a unilateral secret change of plans” in 2010 to route the Purple Line via Constellation Boulevard instead of Santa Monica Boulevard. Beverly Hills asserted that Metro manipulated seismic and ridership data to bolster its preordained choice. Metro responded that the Constellation vs. Santa Monica decision was made because technical studies showed that “there was no fault-free section along Santa Monica Boulevard that would be large enough to accommodate a station.”

The court standard here is interesting: “permissible partiality” is acceptable, but it can not get in the way of the project studies taking a “hard look” at alternatives. The standard of proof is pretty high; other cases where improper pre-determination was proved involved a “binding commitment” where project proponents signed contracts in advance of finishing environmental studies.

The judge called this “a very close question” stating “the analysis certainly appears to have been slanted in one direction” but that the slant was not bad enough to clearly be full-on improper pre-determination. The ruling sided with Metro because there was no evidence of “a binding commitment of any type involved here” despite “evidence that a Constellation Station location was preferred early on and that subsequent analysis favored that preference in ways that some people and organizations found reason to criticize.”

5 – Seismic Risk

Beverly Hills disputed Metro’s seismic data criteria for routing the subway under Constellation Boulevard instead of Santa Monica Boulevard. Beverly Hills asserted that Metro’s seismic data was incomplete, and criticized the agency for doing additional seismic studies after already approving the Constellation route. Beverly Hills asserted that Metro was not up front about uncertainties in its data. Metro asserted that environmental studies do not need “to affirmatively present every uncertainty.”

The court sided with Beverly Hills on this item. The court affirmed Metro in saying that the agency’s seismic risk studies were “reasonably thorough,” but stated that Metro failed to make “up-front disclosures of relevant shortcomings.” 

6 – Re-opening Environmental Certification (NEPA)

Beverly Hills asserted that because Metro did additional seismic studies after its environmental studies were approved, the agency should have re-opened the NEPA process. According to Beverly Hills, instead Metro “simply swept problems under the rug.”

The ruling sided with Beverly Hills on this, asserting that Metro should have issued additional environmental studies.

7 – Clean Air Act

Beverly Hills asserted that Metro only looked at Clean Air Act requirements pertaining to subway operations, and did not analyze air local air quality impacts for construction activities.

The court sided with Metro that its analysis was acceptable under the Clean Air Act.

8 – Public Land Usage

Federal law requires certain procedures be followed when a project impacts a park or recreation area. Beverly Hills argued that tunneling below (and constructing near) Reeves Park and Beverly Hills High School would impact recreation. Metro argued that the tunnel is far enough underground (and construction activity limited enough) that the project does not impact recreation.

Though the ruling stated that construction and the tunneling “would not substantially impair” recreation, the courts sided with Beverly Hills, stating that Metro “failed in its obligation to perform a sufficient … analysis concerning ‘use’ of the High School due to the tunneling underneath it.”

9 – National Historic Preservation Act

The court sided with Metro on NHPA.

What happens next?

Beverly Hills’ lawsuit challenges the environmental clearance for the entire 9-mile Purple Line subway extension – from Koreatown to Westwood. The project is broken into three sections.

In 2015, Metro began construction on the first section of subway extension. The initial section costs $3 billion and extends 3.9 miles from Koreatown to just inside the Beverly Hills border. That initial extension is anticipated to open in 2023.

Beverly Hills’ primary lawsuit contentions concern section two, planned to tunnel below Beverly Hills, including Beverly Hills High School. Section two is not under construction yet, but Metro has begun preliminary investigation work, with utility relocation anticipated to start soon.

Phase three will take the line from Century City to the VA Hospital in Westwood.

As of 2015, Metro expected section two to open around 2026 and phase three to open around 2035. Metro CEO Phil Washington secured USDOT approval to expedite future subway phases, in part in support of connecting rail to UCLA in time for a potential 2024 Olympics.

Last week’s ruling is still preliminary. Both Metro and Beverly Hills will soon respond to the judge’s preliminary document. Then on March 14 all parties are due back in court again. On that date, or soon after, the ruling will be finalized.

A settlement appears unlikely. In an interview (minute 11) with Beverly Hills View last week, former County Supervisor Zev Yaroslavsky described earlier settlement attempts as “dead on arrival.”

If Beverly Hills and Metro are unable to come to terms, it is unlikely but theoretically possible that the judge could order the halt of the entire project, potentially including the initial section already under construction. This would be a huge mess.

A more likely, less drastic ruling would be re-opening the NEPA environmental review process, so Metro can “sufficiently cross its t’s and dot its i’s” probably before section two construction gets underway. Metro could appeal this ruling. Either a legal appeal or a re-opened NEPA process could result in delaying future subway phases. This would increase Metro’s project costs – both construction and legal – without necessarily altering the subway alignment. While some in Beverly Hills might see this potential outcome as a victory, it is not clear that Metro would make any changes to the alignment already selected. With public monies wasted on extended legal battles, instead of invested in school and transportation improvements, ultimately it appears that it will be the public that loses.

With the two sides far apart, maybe newer consensus-minded Metro board members — perhaps L.A. County Supervisor Shiela Kuehl and L.A. Mayor Eric Garcetti — could show leadership by reaching out to their Beverly Hills colleagues and trying to find some kind of face-saving middle ground.

After the March ruling, it should be clearer if the project will see any delays.

  • calwatch

    They did a supplemental EIS on the Regional Connector project even though it was already under construction. https://www.metro.net/projects/connector/report_connector_seis-rod/

    Overall, while Joe may not like the paper exercise of environmental documentation, it is not a bad option to set a precedent for projects that the Streetsblog readership may not like (and which I support) like the 710 tunnel, to provide a universe of options which need to be studied and disclosed. Remember federal environmental assessment laws like NEPA only require documentation. Unlike CEQA, there is no need to issue a Statement of Overriding Considerations. Beverly Hills has the idea that a parking structure might be built under BHHS (never mind the oil drilling nearby); at least Metro could agree that their subway would not foreclose development of such a project.

  • Suing over National Environmental Policy Act violations is a classic NIMBY strategy but ultimately pointless for BH. Metro should be able to build its chosen alignment as long as it can do so safely. Any chance of suing BH over the extra air pollution and greenhouse gas emissions that will result from delaying this project, or to recover Metro’s litigation costs? As an LA County taxpayer, I’d like to be compensated for those costs!

  • Dauger

    I am reminded of an incident that happened years ago in the state where I am from where one little city, that was completely surrounded by another city, started acting a bit uppity. The larger city responded with a massive flurry of road construction that, one by one, started cutting road access to the smaller city. Eventually the little city got the point… Moral of the story, LA should start making life a little more difficult for Beverly Hills until it learns to play nicely with its betters.

  • Sine Metu

    Great. It’s Expo all over again. I do still enjoy the ‘exploding school’ propaganda film. Wealthy white folks are pretty formidable opponents after all.

    Hell, look at Santa Monica Blvd in BH. No sidewalks. No bus shelters. It’s mind-boggling that they get away with this crap.

    Cheeky elitists!

  • Julio

    Metro, please countersue the hell out of Beverly Hills after this is all said and done and the subway is built. No city that small should be holding the rest of the millions of us–who want to get across the city safely and quickly–hostage.

  • calwatch

    Then will you say the same about the 710 project, when that EIR/EIS will find, as it likely will, that a tunnel provides the best option to improve mobility? Should Metro or Caltrans be allowed to build the 710 tunnel under its chosen alignment as long as it is done safely? Environmental documentation exists for a reason – to make sure all decisionmakers are aware of the impacts of a project.

  • chairs missing

    If only transportation projects were scrutinized half as much for their ROI to local taxpayers. My guess is the 710 tunnel would be a deemed a fiscal black hole, while the purple line extension will give a huge boost to local property values, spurring infill development all around the stations.

  • NEPA and CEQA are just environmental disclosure laws. You can build a coal-fired power plant as long as you write the reports correctly. I’m against the 710 tunnel project because I don’t think we should be spending billions of dollars to expand capacity for private cars in the San Gabriel Valley and because it will increase VMT and greenhouse gas emissions, and because we still have a lot of unmet transit/bike/ped needs.

  • Kenny Easwaran

    But it’s got an extremely important park that is so valuable that it just wouldn’t make sense to sacrifice any of it to a bike lane!

  • Joey

    I don’t think they would but maybe the people could sue them for this

  • John Mirisch

    The article above, while correct in a number of details, makes it seem like Judge Wu’s tentative decision is simply a matter of “dotting i’s and crossing t’s.” That would be a misrepresentation of the ruling. The lengthy tentative decision states: “The court believes that the FTA acted in an arbitrary and capricious manner, and did not take the requisite ‘hard look’ NEPA requires, in certain respects.” This is hardly “nitpicky.”

    Without this information, it is fairly easy to view the entire matter in a different light: for example, the Metro spokesperson’s statement that Metro’s “arbitrary and capricious” actions are “simply procedural.” Not true, of course, but the Metro representative’s spin-doctoring seems to suggest that process and procedure are niggling little details that don’t or shouldn’t matter when it comes to billion dollar public works projects. The statement is in and of itself disturbing in the seeming unwillingness to acknowledge the importance of a public, open, transparent and fair process in spending billions of taxpayer dollars. The statement is pure spin and while it fails to address Metro’s capricious and arbitrary behavior, it also attempts to shrug off any responsibility for potential delays which could result from Metro’s having violated NEPA.

    I speak as an individual, but for years I have pro-actively tried to get Metro to enter into serious settlement talks, first with former CEO Art Leahy, who after initially agreeing to enter into mediation, rejected the idea. Finally, with the intervention of the DOJ, Metro representatives, as well as those from the BHUSD, City of Beverly Hills and FTA engaged in settlement discussions, which were conducted by a retired Superior Court judge. In fact, an agreement was reached, which was affirmed by all parties, except for the Metro Board. Former supervisor Yaroslavsky may indeed have described the mediated settlement as “dead on arrival,” and coming from him this formulation is particularly ironic, as he was the one who almost single-handedly killed the settlement by outright out-of-hand rejection. As one of his Board colleagues suggested, “he made the whole subway issue much too personal.”

    As Joe Linton correctly points out, in addition to a new CEO, there are a number of new Metro Board members who will hopefully be able to act in a more thoughtful and professional manner. From my perspective, consistent with my position for the past several years, a mediated settlement would be the best solution. I would hope there are a majority of Metro Board members who share this attitude and who are willing to work towards a collaborative resolution.

    Whatever the resolution of the matter, whatever settlement the parties could reach, wherever the alignment, it seems clear that Metro’s prior inference that there is a dangerous and active fault along Santa Monica Blvd. should be investigated further, using the highest level of scientific rigor (i.e. trenching). In addition to significant new construction along Santa Monica Blvd., subsequent seismic studies both at the high school and surrounding properties do not support the original Metro thesis of an active fault or active faults. Fault-mapping within the region should be a top priority, and especially in light of the recent construction, including a 40 story skyscraper right on SM Blvd., we should determine once and for all, with the best science at our disposal, whether an active fault exists along Santa Monica Blvd. or not.

  • davididid

    so basically, you don’t want the subway there and you have money to stall it indefinitely and hope it dies. got it.

  • John Mirisch

    It might behoove you to learn to actually read English, but I’m also more than happy to spell it out for you in Swedish if you prefer: Detta har absolut inget att göra med att inte vilja ha en tunnelbana i vår stad, utan det handlar snarare om process och lokal styre. Hoppas detta svarar på möjliga oklarheter.

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