Beverly Hills News – Federal Judge Calls FTA Capricious, Says Subway Tunnel Under BHHS Violates NEPA
Updated: Wednesday, February 3, 2016 – 1:36 PM
By Laura Coleman
U.S. District Judge George H. Wu showed no willingness at today’s hearing to significantly alter the 216-page tentative ruling that he filed Monday stating that the Federal Transit Administration (FTA) acted in an “arbitrary and capricious manner” with respect to the environmental effects of tunneling under Beverly Hills High School as part of Metro’s Purple Line extension project.
“The court believes that the FTA acted in an arbitrary and capricious manner, and did not take the requisite hard look NEPA requires,” Judge Wu wrote in his lengthy tentative ruling.
At this morning’s nearly three-hour hearing in Central District of California downtown, Judge Wu reiterated his determination that the FTA failed to meet standards defined in the National Environmental Policy Act (NEPA) by not properly considering the environmental effects of running a tunnel through an area riddled with abandoned oil wells and pockets of potentially explosive methane gas.
“NEPA is a very high standard,” he explained. “The question is, has it so clearly been met here? I don’t think it has been met.”
The Beverly Hills Board of Education has been at the forefront of a David-versus-Goliath battle ever since 2011, when Metro unveiled a decades-old map alleging the existence of five active faults running underneath BHHS. Subsequently, the BHUSD and the California Geological Survey (CGS) trenched, using the most up-to-date technology, and discovered that Metro was wrong.
Concurrent with BHUSD’s own investigations, Metro determined that putting a subway station along Santa Monica Boulevard, the original route planned as part of the $5 billion L.A. County subway expansion project, was not viable due to the discovery of the purported faults. Instead, in 2012, Metro codified in its Final Environmental Impact Report (FEIR) that the only alternative was to run a subway tunnel under the high school to a Century City portal at Constellation Boulevard and Avenue of the Stars. By Metro’s own estimations, that change is costing the agency an additional $200 million.
In addition, multiple reports have questioned the safety of a Constellation Boulevard station. Wu called Metro’s failure to adequately consider those reports “inconsistent” with the agency’s earlier decision-making process, where it eliminated a Santa Monica Boulevard station as an option immediately after one report suggested it could be unsafe.
“There’s a level of skepticism that is not displayed with respect to the Santa Monica station,” Wu stated. He characterized such actions as “seemingly arbitrary in terms of some of the actions taken.”
Wu further criticized the FTA for its failure to analyze construction emissions, explain things in a timely fashion to allow for timely comment from Beverly Hills residents and other interested parties, or provide for a re-evaluation of risk-assessment.
Wu also stated that the FTA had failed to “sufficiently shown that methane gas could escape and effect residences and school buildings.”
“If methane is released above (the subway tunnel), it won’t be contained in the slurry,” he said, adding that the facts showed that a methane gas leak could potentially cause an explosion.
Despite investigations by the CGS and others debunking the existence of active faults under BHHS, the supposed existence of which Metro used to conclude that a Santa Monica Boulevard station was no longer an option, Metro refused and continues to refuse to reexamine the ostensibly inaccurate report on which it based the decision to run a subway tunnel directly under the high school. As a result, the BHUSD has spent millions of dollars en route to putting the proverbially “$200 million” smoking gun into the hands of both a federal and a state judge in an effort to force Metro to reconsider its FEIR.
Last October, the Court of Appeal ruled that it was affirming the trial court’s denial of the BHUSD’s and the City’s challenges to Metro’s FEIR.
At the close of today’s meeting, Judge Wu directed attorneys for the BHUSD and FTA to simultaneously submit their opening briefs as to “what is the appropriate remedy” within three weeks, by Feb. 25. Responses will be due one week after that, on March 4. The hearing will resume on March 14.
Wu specifically directed FTA attorney Jared Pettinato, with the U.S. Dept. of Justice, to provide him in writing with a separate document detailing how the staging area beside the BHHS athletic field will be utilized. He also directed attorneys for the City and the BHUSD to provide information detailing the specific size of the field.
“We look forward to the judge’s final decision,” City Attorney Larry Wiener told The Courier.
“We believe that Judge Wu listened carefully to BHUSD’s arguments based on the Court’s Tentative Ruling and we look forward to his Final Ruling in this matter,” said Jennifer S. Recine, of Kasowitz, Benson, Torres & Friedman LLP, Lead Counsel for BHUSD.
See Friday’s issue of The Courier for the full story.