NCRA Withdraws EIR Certification

In a move that’s drawn divided interpretations, the North Coast Railroad Authority’s Board of Directors has voted to strike the certification of its environmental review of rail operations from Willits to Lombard.

The action was described by representatives of the environmental groups that are suing the authority as a last-ditch effort to escape the requirements of the California Environmental Quality Act (CEQA). But the authority’s staff and boardmembers said those criticisms are based on misrepresentation, and the Environmental Impact Report (EIR) itself is unaffected.

The debate erupted at the April 10 North Coast Railroad Authority (NCRA) meeting, where a 2011 resolution that certified the EIR and referred to a “purported approval of the resumption of rail operations” was replaced by a new resolution. It states that the NCRA’s “purported approval” is under “attack” by the litigating environmental groups and actually isn’t relevant because rail operations are outlined in a lease with the agency’s rail operator. The resolution also states that a federal transportation agency approved the lease and rejected challenges to it.

The changes reflect the NCRA’s argument that its rail operations aren’t subject to state law because federal authority governs rail projects. The EIR was described as having been done as a courtesy and NCRA Boardmember Allan Hemphill said it’s one that “ricocheted on us” with the lawsuits, which accuse the agency of violating CEQA by segmenting a rail project spanning over 300 miles of territory.

Throughout the meeting, boardmembers and NCRA staff clarified that the EIR itself isn’t being rescinded but portions the resolution that certified it are. Still, a representative of Caltrans said that if the board’s approval is “revoked,” the California Transportation Commission could ask for return of the $3 million in state funding that paid for the environmental review.

Scott Greacen of Friends of the Eel River, which is suing the NCRA along with Californians for Alternatives to Toxics, told boardmembers that the changes signal an effort to avoid compliance with – and the spirit of – CEQA.

“What’s the problem with honestly evaluating the costs and benefits of rebuilding the rail line in a way that won’t create unacceptable risks to the public trust values?” he asked. “If the essence of CEQA is to look before we leap, what the board is considering today is not just an invitation to leap without looking, it’s a plan to blindfold the public and throw us in first – but not before stealing our wallets.”

Boardmember John McCowen reiterated that the EIR is unaffected and still offers information, comments and responses to the comments. The changes to the certification resolution reflect legal conditions, he continued.

“Those rail operations were already approved independently of the resolution previously adopted by the board,” he said.

Boardmember Bernie Meyers, who represents Marin County, allowed that the agency’s staff may be correct about federal pre-emption. But he also said that the matter is in the court system, which might deem that pre-emption doesn’t apply.

If it doesn’t, then “the courts will then turn to our EIR to determine whether it’s legally sufficient,” Meyers continued. “By voting on this action, there’ll be no EIR and we will sink ourselves.”

McCowen said Meyers has “fallen into the same trap as many other people” by saying that the EIR’s being struck. “We are not rescinding the EIR,” he continued.

Meyers was the only board member who voted against the new resolution. Those who voted for it included Humboldt’s representatives, Supervisor Estelle Fennell and fisheries scientist Bill Kier.

One thought on “NCRA Withdraws EIR Certification

  1. Thank you for your article. Here is my argument to the Board, entitled: Promises Do Count For Something

    NCRA has known since at least February 2007 of the possibility of being exempt from the need to do an EIR, as we filed a motion in the Marin Court to that effect. We lost. We went to the Court of Appeal with that argument. We lost.

    We then spent over $3 million and took over 3 years to do our EIR.

    We were sued over it. We then made a motion in the US District Court in San Francisco arguing that we were exempt. We lost.

    We then made a motion to a different judge in the Marin Courts that we were exempt. We lost.

    We lost these motions because, among other things, the courts found that we had made certain promises to obtain tens of millions of dollars to repair the line – and to do an EIR.
    We are now about to try and side-step the lawsuit by undoing the EIR. We do so by making, at best, questionable factual assertions in our findings and by making incorrect statements as to running over the entire 300 miles of the line and of promising to do an EIR in the papers we have submitted to the Court. It is as though we can – by fiat – change history.

    If staff is correct that we are exempt, we can assert that at trial. If staff is incorrect, and the Court finds that our promises do count, the Court will then turn to our EIR to determine whether it is legally sufficient. But voting for this action today, there will be no EIR and thus we sink ourselves. I urge my colleagues to decline staff’s proposal.

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