BB&K In The News

BB&K's Sarah Owsowitz Weighs in on the Legal Strategy Involving CEQA

California's high-speed rail authority is hoping a state appellate court will give it something many project developers would give their right arm for - an exemption from the state's powerful environmental review law.

Over the summer, the 3rd District Court of Appeal was set to hear argument in a case in which the wealthy enclaves of Palo Alto and Atherton, several community groups and the Planning and Conservation League allege the rail authority has violated the California Environmental Quality Act. They claim the state did a flawed analysis of the $68 billion project's planned route from the Central Valley into San Jose and north to San Francisco.

Such claims are common to many cases brought under the 1970 law, known as CEQA, which requires public agencies to analyze environmental impacts of projects and address any significant harms.

But the case took an unexpected turn in June after the state claimed the whole suit should be thrown out because CEQA no longer applies to the project. The appellate panel has now delayed oral argument to consider briefing on the matter. Town of Atherton v. Calif. High Speed Rail Authority, C070877 (Cal. App. 3rd Dist., filed April 13, 2012).

The state's move is like throwing an "atomic bomb" into the high speed rail dispute, said Sarah E. Owsowitz, a CEQA attorney with Best Best & Krieger LLP.

"The high-speed rail project is a really big deal and CEQA is the law that's used when you want to stall, kill or hold hostage a project," Owsowitz said. "CEQA was always going to be the way that opponents of high-speed rail were going to go after it."

It's a bold argument, and if they prevail it could avoid lengthy court battles and cut years off the construction process, she said.

The state's legal gambit is possible due to a setback it suffered in a different legal tussle instigated by high-speed rail critics. Central Valley politicians, led by Rep. Jeff Denham, R-Turlock, and other rail opponents urged the federal Surface Transportation Board to exercise jurisdiction over the project. In response, the state argued the Surface Transportation Board, or STB, did not have a role because the rail line is completely within California. The STB ruled in June that it did have jurisdiction.

The state has now turned that loss into a weapon in the CEQA case. It argues that the federal Interstate Commerce Commission Termination Act of 1995, or ICCTA, gives the federal agency exclusive jurisdiction over the project and preempts any state law that could interfere with construction, including CEQA.

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Click here to read the entire article published on Oct. 7, 2013 in the Daily Journal. (subscription required).