California Judge Michael Kenny has barred state bond funding for the California high speed rail system, finding that “the state's High-Speed Rail Authority failed to follow voter-approved requirements designed to prevent reckless spending on the $68 billion project.” These protections had been an important in securing voter approval of a $10 billion bond issue in 2008. Sacramento Bee columnist Dan Walters suggested that without the protections in Proposition 1A, the measure “probably would have failed” to obtain voter approval.
According to the court decision, the California High Speed Rail Authority (CHSRA) had failed to identify $25 billion of the funding that would be necessary to complete the first 300 mile segment. This was required by the terms of Proposition 1A as enacted by the legislature and approved by the voters. Yet, without a legally valid business plan, CHSRA was steaming ahead, at least until the court decision.
The principal longer-term significance of the ruling is that “rule of law” remains in effect in California. Elizabeth Alexis, co-founder of Californians for Responsible Rail Design (CARRD), a group opposed to the project, told the Los Angeles Times that CHSRA had been conducting itself as if it were “above the law” (Note 1).
Judge Kenny's decision means that the state of California cannot ignore its laws, even when its leadership finds them politically inexpedient. Just like the businesses from the largest companies to the smallest used car lot, the law forbids the state from making legally binding promises and then casting them aside arbitrarily.
The Court Decision
The San Diego Union-Tribune summarized the court decision as follows:
Superior Court Judge Michael Kenny ruled that the California High-Speed Rail Authority could not proceed with using billions of dollars in bond funds to begin construction because it had not credibly identified funding sources for the entire $31 billion it will take to finish the 300-mile initial segment, nor had it completed necessary environmental reviews for the segment. These requirements were among the taxpayer protections written into law by California voters in November 2008, when they voted narrowly for Proposition 1A to allow the state to issue $9.95 billion in bonds as seed money for the project. Kenny said the state must develop a plan that comports with these requirements.
The Union Tribune further reported that Judge Kenny rejected arguments by the state Attorney General that state the legislature, rather than Proposition 1A (now state law which has not been repealed) was the final authority on how the bonds are used.
The Los Angeles Daily Newsindicated that the decision left the high speed rail project without either a funding plan or the ability to borrow money. The only remaining source of construction funding is a federal grant, which requires a match of state funding.
Proposition 1A and the high speed rail project have had a difficult history.
A $10 billion high speed rail bond issue to support the project (then called Proposition 1) was scheduled for 2008, after having been postponed twice. There was concern, however, in the state legislature that Proposition 1 had insufficient fiscal, environmental and management guarantees to attract a majority vote of the electorate. As a result, legislature enacted and Gov. Arnold Schwarzenegger signed Assembly Bill 3034, which added substantial protections and recast the ballot measure as Proposition 1A. Assemblywoman Catherine Gagliani, the author, said that the legislation “establishes additional fiscal controls on the expenditure of state bond funds to ensure that they are directed to construction activities in the most cost-effective and efficient way.”
Leading high speed rail proponent and then CHSRA Chairman Quentin Kopp (Note 2), applauded Assembly Bill 3034 indicating that “Californians will now be able to vote on a high-speed train system grounded in public-private financing and guided by fiscal accountability with the guarantee of no new taxes to fund the system,"
The Promised System
In the voter ballot pamphlet, proponents told voters that the proposed system would operate from San Francisco to Los Angeles and Anaheim, as well as through the Inland Empire (Riverside-San Bernardino) to San Diego and to Sacramento. This complete system was to cost $45 billion, according to the proponents (a figure that had already risen substantially).
Like many other large infrastructure projects, costs were soon to explode. By 2011, the cost had escalated to a range of almost $100 billion to more than $115 billion. Further, the promised extensions to Sacramento and the Inland Empire and San Diego were not included in that price (Note 3).
From High Speed Rail to “Blended” System
The political reaction to the cost escalation was negative, leading the CHSRA to radically revise the remaining San Francisco to Los Angeles and Anaheim line. CHSRA removed exclusive high-speed rail tracks in the San Francisco-San Jose and Los Angeles metropolitan areas. The cost of this "blended" system was estimated at $68 billion. CHSRA maintained its claim that the legislatively required travel time of 2:40 could be achieved without the genuine high speed rail configurations in the two metropolitan areas. Sacramento Beecolumnist Walters characterized this expectation as based on “assumptions that defy common sense.”
Former CHSRA Chair Quentin Kopp withdrew his support at this point, referring to the “blended system” as “the great train robbery.” Kopp also raised the possibility that the new plan could violate Proposition 1A, a judgment that Judge Kenny’s decision confirmed.
Kevin Drum, of Mother Jones may have provided the best summary of situation as it stands today:
Its numbers never added up, its projections were woefully rose-colored, and it was fanciful to think it would ever provide the performance necessary to compete against air and highway travel. Since then, things have only gotten worse as cost projections have gone up, ridership projections have gone down, and travel time estimates have struggled to stay under three hours.
Drum had previously characterized CHSRA claims as “jaw-droppingly shameless,”adding that “A high school sophomore who turned in work like this would get an F.”
Where From Here?
Proponents have not given up. As The Economistreported, proponents took comfort in the fact that “Judge Kenny did not cancel the project altogether.” The Economist continued “But if that is a victory, it is not clear how many more wins California high-speed rail can handle.”
The stalwart supporter San Francisco Chronicle editorialized that the court decision was a “bump” in the path for the project. Yet even the Chronicle conceded that: “The court results are a serious warning sign that the financial fundamentals need work.”
Too Big to Fail?
Columnist Columnist Dan Walters fears that to make the financial fundamentals work would require making the project “too big to fail:”
As near as I can tell, the HSR authority's plan all along has been to simply ignore the law and spend the bond money on a few initial miles of track. Once that was done, no one would ever have the guts to halt the project because it would already have $9 billion sunk into it. So one way or another, the legislature would keep it on a funding drip.
Such a strategy would force California taxpayers to fill the gargantuan funding gap, which for the entire Los Angeles to San Francisco line now stands at approximately $65 billion. With the federal funding of approximately $3 billion, the state is 95 percent short of the $68 billion it needs.
California taxpayers may not be so accommodating. Even before Judge Kenny’s decision, LA Weekly reports that a USC/Los Angeles Times poll shows statewide opposition now to have risen to 53 percent of voters, while 70 percent would like to have a new vote on Proposition 1A (see “Californians Turn Against LA to SF Bullet Train”).
Even the federal funding is being questioned. California Congressman Jeff Denham, also a former supporter of the project, joined with Congressman Tom Latham to ask (link to letter) the United States Government Accountability Office if further federal disbursements could be illegal, given the uncertainty of the state funding needed to “match” the federal grant.
Congressman Kevin McCarthy, the majority whip in the US House of Representatives has indicated that he will work with others in Congress to deny further federal funding to the project.
The San Jose Mercury-News, which like the Chronicle had been a strong supporter of Proposition 1A in 2008 has long since climbed off the train. In an editorial following Judge Kenny’s decision, the Mercury-News decried the project’s “bait and switch,” tactics and called for “an end to this fraud.”
The Winners: California Citizens
At this point, the words of legendary New York Yankees catcher Yogi Berra seem appropriate: “It ain’t over till it’s over.” However, Judge Kenny has rewarded California citizens with something that never should have been taken away from them – a government that follows its laws.
Note 1: This is not the first time that the state has run afoul of the law on the high speed rail project. According to the Sacramento Bee:
The Howard Jarvis Taxpayers Association had challenged the ballot language for Proposition 1A, arguing the Legislature used its pen to “lavish praise on its measure in language that virtually mirrored the argument in favor of the proposition.” The appeals court sided with HJTA [stating], “the Legislature cannot dictate the ballot label, title and official summary for a statewide measure unless the Legislature obtains approval of the electorate to do so prior to placement of the measure on the ballot.”
Unlike the present decision, the state suffered no consequences for its violation and Proposition 1A was not invalidated.
Note 2: Chairman Kopp is a retired judge, former state Senator and former member of the San Francisco Board of Supervisors.
Note 3: Joseph Vranich and I have authored two reports questioning the ability of the California high speed rail system to meet its objectives (financial, environmental, ridership, and operations). The first, The California High Speed Rail Proposal: A Due Diligence Report, was published by the Reason Foundation, Citizens Against Government Waste and the Howard Jarvis Taxpayers Association in 2008. The second, California High Speed Rail: An Updated Due Diligence Report, was published by the Reason Foundation in 2012.
Wendell Cox is a Visiting Professor, Conservatoire National des Arts et Metiers, Paris and the author of “War on the Dream: How Anti-Sprawl Policy Threatens the Quality of Life.
Photo: US Constitution (from National Archives)