By Will Houston
The California Supreme Court is set to hear two cases Wednesday that challenge the state-operated North Coast Railroad Authority’s stance that federal laws preempt it from having to conduct an environmental review on its project to restore a railway stretching from Arcata to Napa County.
“They say federal law supercedes the state law and I think we have a very strong argument that the state can decide on how to spend its own money,” Californians for Alternatives for Toxics Executive Director Patty Clary said Friday. “This is state-owned property, this is a state agency involved and it’s the state’s money that is paying for [the project]. We’re kind of gobsmacked that we’re going to have to go to the California Supreme Court to argue this thing.”
Environmental groups Friends of the Eel River and Californians for Alternatives for Toxics filed the cases in the Marin County Superior Court nearly six years ago against the authority and named the authority’s private partner — the Northwestern Pacific Railroad Company — as a real party of interest.
At the time, the authority had just certified an environmental review in June 2011 of its plans restore 142 miles of railroad from Napa to Willits rather than the whole 316 miles of track up to Arcata, according to court documents.
The authority’s and railroad company’s attorneys declined to comment for this article.
The two environmental groups first challenged the authority’s project in civil court in July 2011 claiming that the project’s environmental review was incomplete and did not properly assess how the railroad restoration would impact the environment — especially Eel River Canyon. The groups also argued that the authority was required under the California Environmental Quality Act to review the impacts of restoring all 316 miles of the railroad rather than just sections of it as the authority was proposing to do.
The authority — created by the state Legislature in 1989 to maintain rail service in the region — had received $60 million from the state to repair the railroad under the condition that it conduct an environmental impact review of its project, according to court documents.
After the court challenges were filed, the Northwestern Pacific Railroad Company attempted to move the cases to federal court where it made the argument that the federal Interstate Commerce Commission Termination Act preempted it from having to conduct the environmental review under state law, according to court documents.
The federal law passed in 1996 created the Surface Transportation Board to take jurisdiction over railroad operations regardless of whether the railroad was contained in a single state. The law was created to eliminate outdated, unnecessary and burdensome regulatory requirements on railroads, according to court documents.
The federal court moved the two cases back to the Marin County Superior Court where a judge ultimately agreed that the federal law did not require the authority to comply with the California Environmental Quality Act.
The authority then voted in April 2013 to do away with its project’s environmental review. The two environmental groups appealed the ruling in July 2013, but the appellate court upheld the trial court’s original ruling. The cases were then appealed again to the state supreme court, which granted review in December 2014, according to court documents.
Friends of the Eel River Executive Director Scott Greacen stated that on the day of their appellate court hearing, the Third District Court of Appeal decided on similar federal preemption case, Town of Atherton v. California High-Speed Rail Authority. Greacen said that the appellate court in the Town of Atherton case found that federal law did not preempt state environmental laws.
“From our perspective, these are two cases which are really essentially similar on the basic legal questions which came to very different conclusions,” Greacen said.
Greacen said that the supreme court will now have to determine which ruling makes more sense.
“If we lose this case and the NCRA case is established as law, it really does leave people and natural communities who may be affected by state-owned rail lines entirely at the mercy of the railroads shielded by the [U.S. Surface Transportation Board],” he said.
Clary said that the railroad is well over a century old and that many of the materials in the railroad contain harmful chemicals such as the preservative dioxin and pesticides that she said could contaminate the soil, air and over 120 waterways in proximity to the railroad.
“Our concern is because [railroad is] so old and decrepit that the railroad [authority] was just simply not analyzing the effects of the project they were proposing,” Clary said. “The analysis under California law makes it so they have to develop a program to prevent these things from entering the environment and harming the environment.”
The supreme court hearing is set to take place at 9 a.m. on Wednesday in San Francisco.
If the supreme court rules in their favor, Greacen and Clary said that the case would be brought back to trial court again.
“The problem for the [North Coast Railroad Authority] is if we go back to square one on this thing, we have a very straightforward [California Environmental Quality Act] challenge and they don’t have a CEQA document. They decertified it,” Greacen said.