A superior court's recent smack-down of California's high-speed-rail project raises provocative questions not only about the future of the $68-billion-plus train, but about the integrity of the initiative process.
Do the guarantees in ballot initiatives mean anything after voters have approved them? Or do initiatives offer "carte blanche," whereby officials can take the concept approved at the ballot box and do whatever they choose with it?
Ruling on a lawsuit against the rail project brought by Kings County and some residents, Judge Michael Kenny agreed last week that key parts of the current rail plan don't conform to Proposition 1A, the 2008 initiative authorizing nearly $10 billion in state bonds to fund the beginnings of a rapid train line to connect the Bay Area with Los Angeles.
The judge said the rail authority "abused its discretion," but Gov. Jerry Brown declared that it was full speed ahead, despite the setback.
Few observers seemed surprised by the ruling. Even a father of high-speed rail in California, former judge and Sen. Quentin Kopp, provided expert testimony stating that the current rail plan is so "distorted" it is contrary to the one approved by voters.
For example, Prop. 1A's language required that the state identify all sources of funds for the 290-mile "Initial Operating Section" of the system, and also complete necessary environmental clearances for that section. The authority couldn't do that, but said it could comply with requirements for what it called the "Initial Construction Section" — a shorter rail segment that couldn't initially carry high-speed trains.
But the judge nixed that concoction and noted that the rail authority is relying on "theoretical possibilities" for funding, rather than "sources of funds reasonably expected to be available." The authority has been unable to lure private investment as promised, and additional federal funding is unlikely to be forthcoming given opposition in Congress.
The second phase of the lawsuit will deal with other ways in which the rail plan may diverge from the initiative's promises, which won't be good news for rail supporters. Prop. 1A promised that rail would not require operating subsidies. It also promised a 2 hour and 40 minute trip from downtown Los Angeles to downtown San Francisco.
Subsidies are a given. The promised train time became a virtual impossibility after the authority embraced a so-called "blended" plan in which the system would share rail lines with commuter trains in the big urban areas. Supporters built a house of cards. If they create a line that will meet time promises, they obliterate their financial promises and vice versa.
"They promised what they hoped they could do rather than what they could prove they could do," said Adrian Moore of the libertarian Reason Foundation, and an expert witness in the case. The goal was to win over voters.
After Kenny's ruling, however, Brown said, "As we speak we're spending money. We're moving ahead." Right before the ruling, the rail authority signed a nearly $1 billion design-build contract, and the agency is advertising high-paid job openings. It's using eminent domain to acquire land, which has prompted Assembly Republicans on Wednesday to call for an audit.
"It's like the law be damned," said Jon Coupal, president of the Howard Jarvis Taxpayers Association. Rail supporters say the judge didn't halt the project, but called for another hearing to consider the remedy and that they are in compliance with the direction from the Legislature. The judge said he would leave funding matters in the hands of the Legislature, which opens the possibility of a new tax or a diversion of funds from the cap-and-trade system aimed at reducing greenhouse gases. Voters probably never counted on those possibilities.
Robert Cruickshank, writing in a pro-rail blog, took heart that "Brown, a shoo-in for re-election next year, is determined to move ahead." But at what cost?
The rail authority is not only following the Jerry Brown ignore-the-courts model. It also is following the Willie Brown ignore-the-taxpayers model. The former San Francisco mayor wrote in a July column regarding public-works projects: "Start digging a hole and make it so big, there's no alternative to coming up with the money to fill it in."
Call me Pollyanna, but shouldn't we expect officials to be honest with voters, respect taxpayers, follow the law as approved and then bring any public project into conformity with the decision of the courts?