Opponents of the $5 billion Honolulu rail project prevailed in their lawsuit charging that the city failed to consider a full range of alternatives before deciding to build rail. A federal judge ruled last week that the city was “arbitrary and capricious” in selecting rail and violated the National Environmental Policy Act in failing to present more alternatives in the environmental impact statement.
Construction on the rail line had already been stalled by a previous lawsuit that found that the rail project failed to comply with state historic preservation and burial protection laws when it failed to complete an archeological inventory survey for the 20-mile route before starting construction. Instead, it had planned to do the inventory just ahead of each step of construction.
Basically, the city let construction contracts and began construction prematurely because it wanted to commit funds before voters had an opportunity to stop the project. Voters will get their chance tomorrow, when former Hawaii Governor Ben Cayetano, who opposes the rail project and was one of the plaintiffs in the recent lawsuit, is on the ballot for mayor of the city.
Last week’s ruling sets an important precedent for rail projects nationwide. The National Environmental Policy Act clearly requires proponents of major federal projects or projects that receive federal funding to consider a full range of alternatives in environmental impact statements written for those projects. But for years the Federal Transit Administration has let agencies get away with considering no alternatives except “no action” or something called “transportation demand management,” which basically means a few minor upgrades to the existing transit system. This means that bus-rapid transit, express bus lanes, and other low-cost alternatives that are potentially superior to rail have been ignored in one of the most important planning steps.
Rail critics should cite the Honolulu ruling in asking transit agencies that have written environmental impact statements but have not yet begun construction to go back and redo the statements. At the very least, this should delay projects by a couple of years. At best, a complete analysis of alternatives will demonstrate to decisionmakers that rail is not a cost-effective use of scarce transit dollars.
Advocates of efficient transportation should also ask the U.S. Department of Transportation to rewrite its rules regarding New Starts to incorporate the requirements of the new ruling. As noted, the current rules only require two alternatives, and the FTA has proposed to weaken even that requirement. This court ruling should put a stop to that proposal.
Of course, a lot depends on the outcome of tomorrow’s election. If Cayetano wins, Honolulu will probably stop building its rail line no matter what the courts rule. If Obama wins, the FTA will continue funding ridiculously expensive projects no matter what the rules say. If the Republicans take the Senate, there is a chance that Congress could repeal or significantly revise the New Starts program when it reauthorizes transportation spending, as it is scheduled to do in 2014.
No one has any idea what Romney will do about transportation, but if the House and Senate continue to be controlled by different parties, gridlock may prevail no matter who sits in the White House. Of course, there is always the possibility that they may strike some sort of a “grand bargain” over transportation. But that will be the subject of another post.