New rail lawsuit takes shape

The city dodged a legal bullet on its $5.5 billion rail plan when a state judge yesterday threw out a lawsuit by Hawaiians trying to delay construction until the city completes a survey of burial sites along the project’s entire 20-mile route.

But a bigger legal challenge could be soon at hand with a group that includes former Gov. Ben Cayetano expected to file a federal lawsuit next month challenging the project’s environmental impact statement.

Nicholas Yost, the San Francisco attorney handling the lawsuit, will be in Honolulu next week to discuss the case with potential plaintiffs.

During the Carter administration, Yost played a lead role in drafting regulations governing federal environmental impact statements. He received the American Bar Association’s 2010 award for distinguished achievement in environmental law.

In a memo this week to Cayetano and anti-rail activist Cliff Slater, Yost indicated that the lawsuit would focus on allegations that the city:

•Violated the Transportation Act and National Historic Preservation Act by failing consider alternatives for avoiding historic sites.

•Used outdated information for population and ridership projections that skewed the results of the environmental study and fell short of the legal requirement for scientifically valid methodology.

•Improperly limited the EIS to the 20 miles between East Kapolei and Ala Moana Center while failing to include studies of future extensions to West Kapolei, Waikiki and the University of Hawai’i.

•Failed to meet its obligation under the National Environmental Policy Act to study all reasonable alternatives to heavy rail and give each equal consideration. Yost said the EIS omitted the managed lane alternative and gave short shrift to bus rapid transit and light rail.

He said the city’s EIS misstated the purpose and need for the project as “providing high capacity rapid transit” instead of the correct broader purpose of “moving people from west to east and east to west.”

“It confuses a potential alternative solution with the underlying purpose and need,” he said. “So stated, all non-rapid transit alternatives are automatically excluded. … That violates the law.”

Cayetano accused Mayor Peter Carlisle of a “publicity stunt” to impress visiting U.S. Transportation Secretary Ray LaHood when he announced this week that a $574 million contract has been awarded to AnsaldoBreda to provide cars for the rail system, along with a $372 million contract to Kiewit Infrastructure West to build the second phase of the rail line from Pearl Highlands to Aloha Stadium. Kiewit earlier got the contract for the first phase starting in Kapolei.

Cayetano said the city doesn’t have the funds on hand to cover the more than $1 billion in contracts awarded by Carlisle and former Mayor Mufi Hannemann and that it’s “irresponsible to award such contracts while there is no full funding agreement between the (Federal Transit Administration) and the City.”

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12 Comments on “New rail lawsuit takes shape”

  1. MynahBlog Says:

    What’s in it for Cayetano?

  2. Jim Loomis Says:

    Cliff Slater’s only concern is to stop rail … period. That’s his mission in life … he opposes things. Ben’s involvement, aiding and abetting, this Libertarian ideologue, is terribly disappointing.

  3. Michael Says:

    Ben may run for Senate. He is not out of politics yet. As former Governor Ben may know something we the public don’t.

  4. zzzzzing Says:

    @mynablog, @jimloomis – why not argue on the merit of rail, rather than the obvious distain for the personalities involved? The lawsuit has merit, I don’t care who is filing it. The Rail project as it stands, is a HUGE waste of money – nothing more than Union payback. I’m not against mass transit; I take the bus all the time, but there has to be a better way than heavy rail. I’d rather them use the money to put people to work fixing roads, sewers, water mains, schools & housing projects.

  5. Guido Sarducci Says:

    Behind Cayetano is Abercrombie….

  6. ppcc Says:

    I could care less what Cayetano or Slater’s motivations are to stop rail. However feel free to address the merits, or lack of, for the points outlined by Cayetano, Slater and Yost regarding the Oahu rail project. I have been waiting for months for Doug Carlson to respond to my previous questions and comments regarding the Oahu rail project many columns back on Shapiro’s blog.

    If all the pro rail supporters can do is speculate what is churning in the minds of Cayetano and Slater, I would rather someone answer the question on whether the lawyer Nicholas Yost is related to Dennis Yost, the lead singer of the 70’s band the Classics IV who sang such memorable songs such as Spooky, Stormy, and Traces of Love.

  7. Richard Gozinya Says:

    There seems to be some meat on the bones of this new lawsuit. Good issues that need attention and deliberation, regardless of who brings the suit.

    I found the “assurances” supposedly provided by Mr. LaHood about Federal support to be weak tea – yes, there is currently $250 million in the Administration’s budget proposal but that is a far, far cry from $1.55 Billion. Meanwhile,though, the C&C forks out a billion in contracts. That still boddahs me.

    I also wish the rail cars contract could have gone (if not to an American company)to a Japan firm,for a number of reasons chief among them that the Japanese really know how to run a railroad. Mussolini’s scheduling adroitness notwithstanding, the infamous “FixItAgainTony” model is more the Italian style, methinks. The track record of these guys is mighty suspect from I can see.

  8. David Shapiro Says:

    Cayetano has been of the belief that rail is a poor solution for Oahu since he chaired the transportation committee in the Legislature in the late 1970s. His opinion is fair game for argument, but I don’t see where consistency is grounds for impugning his integrity.

  9. ppcc Says:

    Regarding the Italian train company Ansaldo, the Star Adver article of the train cars was very telling of the problems that the Oahu rail project will most likely face even BEFORE they begin construction. The StarAdver article identified the rail cars that Ansaldo will use for Hawaii and it will be 2 train cars connected together, with each car weighing 72,000 lbs for a total weight of 144,000 lbs. One of the key factors why LA County cancelled their contract with Ansaldo was because of the train being too HEAVY. A heavy train such as Ansaldo means that the amount of electrical energy needed to power these cars, even with regenerative braking, will be very LARGE. In addition, the elevated support columns and track will need to support more than double the weight of 2 trains with passengers, given it will be a 2 track system so that trains can simultaneously run in both directions. You can forget the previous City artist renditions of those sleek trains with wispy support beams and track over Oahu streets as it will need to be MASSIVE. The Ansaldo train is definitely of a much older design as the most modern Japanese trains have probably used extensive CAD/CAM and other design methodology to greatly light their trains, thus saving greats amounts of electrical energy and requiring much less intrusive support structures. Also are much more massive train car will most likely lead to greater wear and tear on everything, including the track and its motor.

    I bet if anyone did the analysis, the amount of total energy needed to power Oahu’s train system would be MORE than the energy needed to power the growing fleet of hybrid and newer more energy efficient Honolulu City buses. An in few years time, even lighter bus construction technology and non-fossil fuel burning engines will be commercially available for City buses.

    The only thing that the City needs to look into regarding Buses is that they have to strengthen the front in the event of a frontal crash (ie Pali bus hitting a downed tree) the front structure of the bus needs to be better designed to protect the driver from shattered glass or intrusion of the dashboard/ steering wheel.

  10. Michael Says:

    If this is Japan and not Hawaii, Rail would already have been built and running. Not in the planning stage since 1969 when Mayor Fasi wanted Mass Transit.
    He developed Da Bus. Mayors, following should have modernized the system as it got older.

    America is running on Monopoly money. Who would pay the Japanese to build Rail? America already owes 600 plus billions to Japan. China first, Japan second. 5.5 billion dollars would only pay the interest part of the Japanese loan. Mussolini was be kidding.

    The rail will be run on “hot air” if built.
    They should build the rail so that trades blow it one way and when Kona winds, it goes the opposite direction. If built properly can go in circle with the swirling winds.

  11. Peter Kay Says:

    From reading Ben’s book, he approaches his cases with overpreparation. He’s no fool and as Dave says, has been against rail ever since he took the time to actually research it. Slater & Co have been meticulously documenting this process all along and have mounds of data to back their claims, much of it documented online.

    It will be easy to show the Alternatives Analysis and the EIS process was purposely slanted to produce the result desired by the various interest groups involved. That’s not how it’s supposed to work and this may in fact derail the entire project.

    It will be interesting to follow this case.

  12. Capitol -ist/WassupDoc Says:

    Hope these rail opponents have access to war-free gasoline at no more than $1.40 per gallon so that we can drive our green-housing-gas-emitting internal combustion vehicles to get to & from work.

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