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•Used outdated information for population and ridership projections that skewed the results of the environmental study and fell short of the legal requirement for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