series of concessions over the last year to quiet opposition to the California bullet train has created a potentially lethal problem: the revised blueprint for the system may violate requirements locked into state law when voters approved funding for the project in 2008.
The Legislature packed the law with an unusual number of conditions intended to reassure voters, protect the project from later political compromises and ensure that it would not end up a bankrupted white elephant.
But many of those requirements may be at odds with the plan to integrate bullet trains with existing commuter rail lines in Los Angeles and San Francisco. They may also conflict with the Obama administration's insistence to start construction in the Central Valley without any near-term prospect that high-speed trains would operate there.
Outside critics, state oversight boards, some legislators and former officials of the California High-Speed Rail Authority say the compromises violate those requirements, not to mention that voters were told the system would cost far less than the currently projected $98.5 billion.
The project is entering a crucial phase, adding urgency to the legal questions. A final business plan is expected this week. Gov. Jerry Brown
said he will request $2.7 billion from the Legislature next month. And the authority wants to start building a 130-mile section of track later this year. A legal dispute could snarl the tight schedule.
Quentin Kopp, an architect of the project when he was a state senator and chairman of the rail authority, believes the design changes do not meet the law and is not what was envisioned by the Legislature.
"These guys at the rail authority have been pretty clever," said Kopp, who is also a former state judge. "I saw it coming."
The mandates in the law are considerable. They require that any initial segment has to use high-speed trains. Money for each operating segment needs to be in hand before construction starts. Passengers must be able to board in Los Angeles and arrive in San Francisco without changing trains. As many as 12 trains per hour are supposed to run in each direction and the system has to operate without taxpayer subsidies.
Instead, the rail authority has agreed to run fewer trains at slower speeds on tracks shared with commuter rail systems, Amtrak
and freight trains. In the early years, passengers will probably have to transfer trains to get from one end of the system to the other. The concept, known as the blended approach, was pushed last year by Bay Area politicians, who fought the original plan to run high-speed trains through the region on 60-foot high viaducts over localneighborhoods.
The idea has attracted support in Southern California as well.
Brown has thrown his weight behind the blended plan, but also recognizes the potential legal problem.
"We are aware of the issue," Brown said. But he dismissed the suggestion that any judge would block the nation's largest infrastructure project over disputed ballot language. "People want to micromanage everything," Brown said, adding that the matter will be tested legally before any bonds are sold to pay for the work.
The rail authority is on guard too. The former chief executive, Roelof van Ark, requested a legal analysis by the attorney general. In the confidential letter dated Sept. 9, Van Ark asked whether the blended system would "comply with the criteria prescribed by Proposition 1A" and whether "there is a time limit to achieving full compliance" with the law.
A spokesman for the attorney general, citing attorney-client privilege, declined to say whether the office has issued an opinion.
The blended approach was intended to save the project. State Sen. Joe Simitian
(D-Palo Alto) said the earlier plan for exclusive high-speed rail tracks was unaffordable and faced overwhelming opposition in the Bay Area. But he acknowledges the alternative system, which will be detailed in its final form when the business plan is made public this week, may have defects also.
The two biggest legal issues, Simitian says, are the requirement for no subsidies and the fracturing of the bullet train project into pieces, whereas the law describes it as a unified effort. Kopp believes the failure to guarantee a single-seat ride from Los Angeles to San Francisco in the early years is a key legal liability, though transit officials disagree with him.
Mehdi Morshed, a former chief executive of the rail project, said the reduction in the number of trains represents a major setback. The blended approach may reduce the number of train departures to as few as two per hour at peak times, while the law calls for up to 12 trains per hour.
"Why would we spend billions of dollars to get two trains per hour?" Morshed said. "We were telling people the system would have essentially unlimited capacity. If you don't have frequent service, you are not going to have a profitable system."
Meanwhile, a suit brought by Kings County and two of its residents alleges that the plan to start construction in the Central Valley is also illegal. "It is just a conventional rail line," attorney Michael Brady said. "It will not be electrified. There are no trains in the funding."
Indeed, those issues were debated by the authority board in December 2010. Former deputy Atty. Gen. George Spanos warned the board at the time that the Central Valley track was not "in our view a usable segment" under the law. Since then, the authority has created a new vocabulary and deemed the track an "initial construction section," rather than an operating segment. Authority spokesman Lance Simmens said the agency has an internal legal opinion that the Central Valley plan complies with the law.
Whether a court would actually stop the project because of such alleged violations is not clear, said UC Berkeley assistant law professor Bertrall Ross, an election law expert. The conditions in the law, he added, were not in the ballot summary that voters saw at the polls, and judges often attach more importance to that than the underlying statute. On the other hand, some of the conditions were in voter pamphlets, and a judge could rule against the plan on that basis, Ross said. "It could go either way."
But the legal issues, even if they are decided in favor of the authority, threaten to further delay a project that is already slipping months behind schedule and leaving legislators little time to carefully consider major changes in the plan.
"No one wants to feel like they are in a car showroom being told this is a one-time offer and we have to make up our mind now," Simitian said.