Posted tagged ‘Ben Cayetano’

New rail lawsuit takes shape

March 24, 2011

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•Used outdated information for population and ridership projections that skewed the results of the environmental study and fell short of the legal requirement for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


Stakes going up in legal fight over O’ahu rail

March 15, 2011

The continuing fight over the $5.5 billion O’ahu rail project may soon be headed to federal court.

A group that includes former Gov. Ben Cayetano has retained nationally prominent environmental attorney Nicholas Yost for a possible lawsuit to halt the proposed 20-mile commuter line between Kapolei and Ala Moana.

Cayetano didn’t disclose the others in the coalition, but said they include “liberals, conservatives, Democrats and Republicans, environmentalists, businessmen and libertarians.”

The lawsuit is expected to challenge the findings of the rail environmental impact statement, its methodology, the project’s finances and the city’s projections on population and ridership, among other issues.

The city anticipated a lawsuit to delay the train and included funds in the rail budget for a legal defense.

Yost, based in San Francisco, is a heavy-hitter on environmental law who received the American Bar Association’s 2010 award for distinguished achievement in environmental law and policy.

He was general counsel for the Council on Environmental Quality in the Carter administration, playing a lead role in drafting regulations to implement the National Environmental Policy Act, which governs environmental impact statements for projects involving federal funds. He was also senior attorney for the Center for Law in the Public Interest.

In private practice, he has represented numerous clients on issues related to NEPA compliance.

Richard Lim and his spear-carriers

December 1, 2010

Here’s a telling passage from former Gov. Ben Cayetano’s autobiography “Ben” (pp 519-520) that has bearing on the leadership struggle in the state House and my post earlier today on Gov.-elect Neil Abercrombie’s appointment of Richard Lim as DBEDT director and his rumored plan to name Sen. Brian Taniguchi to head of the Hawaii Labor Relations Board.

Shortly after he became Speaker, (Calvin) Say was offered and accepted a directorship on the board of directors of City Bank. Many legislators hold full-time jobs with private employers, but the propriety of a legislator sitting as a director was questionable. Unlike employees, a director owes a fiduciary duty to his company and its stockholders. This can pose a potential conflict with the fiduciary duty the legislator owes to the public. …

One morning, I got a call from Evan Dobelle, the recently appointed president of the University of Hawaii, which provided some insights to Say’s role with City Bank.

“Governor, do you know a Richard Lim from City Bank?”

“Not well, but I know who he is. Why do you ask?”

“Well, Lim asked for a meeting, and he brought along Calvin Say and Brian Taniguchi. Pres [Prescott Stewart, a Dobelle staff person] was with me. I discussed ideas that the faculty and students have for University Avenue, past the Varsity Theater down to King Street. Then Lim started talking –— and he did all of the talking while Calvin and Brian looked on. The tone of Lim’s words bothered me. In essence he seemed to be suggesting that if I wanted to get anything done at the University I should call him.”

“What did Calvin and Brian do?” I asked Dobelle.

“Well, afterward I turned to Calvin and Brian and said, ‘What was that all about?’ ” he replied.

“Did they say anything?”

“No. They just sat there looking down at their shoes — and that bothered me more than what Lim was saying. Calvin has been helpful to me and the University. I couldn’t understand his behavior.”

“Looking down at their shoes?”

Years later, I got a slightly different version of the Lim-Dobelle meeting from a former UH regent who had arranged the meeting and was also in attendance.

“I was asked to arrange a meeting with Dobelle and I did,” the regent told me. “I have no idea what Lim wanted to meet about, so I asked Calvin and Brian if they knew. They both said they didn’t.”

“How did Lim come across?”

“Well, he did all of the talking, and after a few minutes I felt Dobelle didn’t like what he was hearing. And I think everyone was kind of caught off guard by what was being said.”

“Including Calvin and Brian?”

“Probably — I think they were surprised too.”

Dobelle thought Lim was trying to intimidate him. If he was, then having that Speaker of the House and the chairman of the Senate Ways and Means Committee in tow only added to that impression. If Say and Taniguchi were surprised by Lim’s words, the right thing for them to do would have been to contact Dobelle later and clear up any misunderstanding. They didn’t. …

In 2004 Calvin Say lost his directorship when City Bank was bought out by Central Pacific Bank. Central Pacific paid a premium $91.83 price per share, up from its original offer of $21.83 less than a year earlier. So Say didn’t walk away empty-handed. His director’s stock options provided a handsome return.

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