Lawsuits Make Bad Public Policy

Dec 1st, 2013 | Posted by

One of the most important things to remember about the lawsuits that have been filed against the California high speed rail project is that they come not from people who want high speed rail – they are coming from people who oppose the project. The lawsuits represent an end run around the democratic process. This HSR project was approved by voters in November 2008, by their legislators again in July 2012, and the voters returned those legislators to office in November 2012 despite a right-wing effort to use their support for HSR as a reason for voters to defeat those incumbents.

I’m not saying the lawsuits were illegitimate. But they were filed with the express intent to kill HSR. In the case of the Kings County lawsuit that led to an unfavorable ruling from Judge Michael Kenny, the plaintiffs used a deeply cynical strategy of claiming that Prop 1A, which they want repealed, is being violated because Congressional Republicans (including David Valadao, who owns land that would be impacted by the HSR route in Kings County) have denied new federal funds for the project – itself an effort to kill HSR.

This isn’t a failure of HSR planners or supporters. This is an ambush laid by project opponents.

So why should these opponents be able to dictate public policy to the rest of California? That’s the conclusion I take from reading USC Public Policy professor Lisa Schweitzer’s criticism of HSR advocates:

From the beginning, the supporters of the project have overemphasized what damage criticism might do–note their continued flouncing around about the Hyperloop, which is the least of their problems at this point–and underemphasized the possibility that, in managing and using criticisms that arise, voters might still be brought around to understanding–and perhaps event wanting–public infrastructure of this scale and scope. Instead, they pursued assumed the worst of voters–that voters are spoiled brats incapable of signing on to a vision unless it was tarted up with unrealistic promises about how the projects work. I have said it a million times on this blog: I think voters would have been open to persuasion, even if it took longer than supporters wanted. Instead of trusting the democratic process, project supporters did everything they could to subvert it. In politics, William Galston once noted, one does occasionally have the obligation to play hardball. But here? Now, the procedural tide has turned on them, and they will have no choice but to go back to the very voters they have trusted so little–and whose faith in the project they have done much to undermine.

I don’t know which supporters she’s talking about here. She doesn’t name anyone, which I think is a big problem – as someone who spent a lot of time in academia, I know the importance of citing one’s sources, especially when criticisms are being launched.

But I will say this: she’s wrong on the details, and wrong to blame HSR supporters for an ambush laid by people who absolutely do not want to see bullet trains in California despite the votes of the people and of the legislature to build it.

Schweitzer errs in blaming supporters for the way Prop 1A is worded. I did not write AB 3034 (the legislative bill that went onto the ballot as Prop 1A). If I did, it would have looked very different. My Prop 1A would have raised between $30 and $40 billion. My Prop 1A would not have banned operating subsidies. My Prop 1A would not have required full funding for a segment or the whole thing to be identified before construction begins. My Prop 1A would have mandated a 4-track Peninsula rail corridor, and my Prop 1A would have included a streamlined environmental review process.

But I didn’t write Prop 1A. None of us outside advocates wrote it. Many of the more troublesome aspects of Prop 1A, including the ban on operating subsidies and the requirement that full funding be identified, were included as the price of passage in the State Senate, where Republicans like Roy Ashburn were needed to get the 2/3 support a bond measure needs to be placed on the ballot. Those troublesome aspects of Prop 1A, in other words, are there as sops to critics. It’s a classic example of why one should never, ever let public policy be shaped to appease people who oppose that policy in the first place.

In 2008 we went to the voters with the ballot initiative we had, even if it wasn’t the ballot initiative we wanted. I strongly supported Prop 1A and have no regrets whatsoever about doing so. Even with its more annoying aspects, it’s still a good blueprint for building an HSR system in California. It also remains workable – or would, if we didn’t have Congressional Republicans and NIMBYs doing everything they can to defund and destroy the project.

Schweitzer also rips HSR supporters for assuming voters are “spoiled brats” and trying to avoid the democratic process. Again, that description is accurate for HSR critics, not for us supporters, who have had democracy on our side at every turn. But I will note for the record that I have said I would support a new vote on HSR – only if it’s for the purpose of adding more funding to the project. Contrary to what Schweitzer says, HSR supporters very much trust the voters and believe they’ll support more funding if we make the ask.

What we don’t support is letting opponents drive public policy, or shaping our strategy to appease people who do not want to be appeased. Surely Schweitzer knows that it’s bad public policy to let a major piece of infrastructure be undermined and derailed in this manner.

  1. synonymouse
    Dec 1st, 2013 at 17:14
    #1

    Litigation is necessary sometimes to enforce and/or clarify legally a policy or position.

    Ergo, Palmdale filed a suit to attempt to prevent the CHSRA from considering alternate routes to the one it had lobbied for. One potential upside to such an action, as well as finding out what is going to prevail, is to flush out the hidden hands, the powerful stakeholders who would prefer a stealth profile.

    synonymouse Reply:

    And, now that I have read the article, thoroughly innocuous.

    We’re past pep rallies.

  2. Alon Levy
    Dec 1st, 2013 at 17:17
    #2

    Off-topic: Metro-North train derails, killing 4. A survivor claims the train was going too fast; a black box investigation is still ongoing, and I have not seen any links to a video as in the AVE case.

    swing hanger Reply:

    Of course it’s way too early, but on seeing pics the wreck, and the curve, I automatically thought overspeed.

    VBobier Reply:

    Me too, but it could also be that the track needed to be replaced, that requires money to be spent on infrastructure, Repubs/baggers hate spending in any area that isn’t RED… Unless it’s for National Defense of course, then they’re gung ho…

    Alon Levy Reply:

    Metro-North track is generally in good condition. And it has jack shit to do with national party politics. Republicans in New York like spending money on commuter rail (East Side Access was Pataki’s pet project), because their high-income suburban constituents take it. Taking a cue, the right-wing anti-labor publications, like the Manhattan Institute and New York Post, talk about waste and fraud at the city transit unions but say almost nothing about worse abuses on commuter rail.

    adirondacker12800 Reply:

    As well maintained like it was in Bridgeport just a few months ago?
    …East Side Access and the Second Avenue subway were Nelson Rockefeller’s pet projects….

    Alon Levy Reply:

    Pataki is the one who actually got the money, in a deal with Shelly Silver, whose pet project is SAS.

    adirondacker12800 Reply:

    They built the tunnels that have been moldering away for decades with pixie dust and elfen labor? I remember corrugated Second Avenue well. It looked, sounded and felt very really to me. 6 by 6 or 8 by planking over the tunnel work going on underneath it all.

    Alon Levy Reply:

    No, but the ongoing project of connecting the tunnel that has been moldering away for decades to the LIRR Main Line and Grand Central is due to Pataki.

    adirondacker12800 Reply:

    Yes all three of his adminstrations pushed really really hard so that the ground breaking could occur after he left office, 12 years after being elected. An mere 22 or 23 years since his visionary quest to connect the bits left behind by the Rockefeller Adminstrations before any of it opens.

    Stephen Smith Reply:

    I think Al D’Amato is actually the one to blame for East Side Access. (At least, he’s the one the MTA flack I deal most with pins it on when he tries to deflect blame off his current bosses for a project [specifically the cavern] that I think everyone now realizes was a mistake.) But D’Amato’s also a Republican, so your argument still works.

    Clem Reply:

    PTC will fix that problem.

    Paul Dyson Reply:

    So would simple approach control, which could be installed tomorrow.

    Reedman Reply:

    FYI —
    The NTSB says the black box shows the MetroNorth train entered a 30 mph curve at 82 mph.

    http://www.sfgate.com/news/us/article/NTSB-Train-going-too-fast-at-curve-before-wreck-5026824.php

  3. Paul Druce
    Dec 1st, 2013 at 17:50
    #3

    Lawsuits make bad public policy? Who knew that Robert was a proponent of Proposition 8?

    If I did, it would have looked very different. My Prop 1A would have raised between $30 and $40 billion. My Prop 1A would not have banned operating subsidies. My Prop 1A would not have required full funding for a segment or the whole thing to be identified before construction begins. My Prop 1A would have mandated a 4-track Peninsula rail corridor, and my Prop 1A would have included a streamlined environmental review process.

    And your Prop 1A never would have passed either the Legislature or the general election and quite possibly win an award for being the most ludicrous proposition introduced (and there’s some stiff competition for that award!

    But I will note for the record that I have said I would support a new vote on HSR – only if it’s for the purpose of adding more funding to the project. Contrary to what Schweitzer says, HSR supporters very much trust the voters and believe they’ll support more funding if we make the ask.

    You’re kinda proving her point there. That’s a “Heads we win, tails you lose” you’re giving to the voters. It is in no way something that could be described as trusting the voters.

    Robert Cruickshank Reply:

    There is a fundamental difference between taking away someone’s basic rights and making a decision about an infrastructure project.

    Paul Druce Reply:

    Ah, so public policy isn’t public policy when you don’t like it and lawsuits are not an end run around the democratic process when it is in your favor.

    joe Reply:

    Prop8 was the first amendment to CA law that took human rights away. It was unconstitutional.

    Confusing human rights protection under the constitution with a bond initiative is demented.

    Paul Druce Reply:

    It did no such thing.

    joe Reply:

    Of course it did. And it was to amend the state constitution to restrict a human right to marry.

    Equating that unconstitutional proposition with a bond initiative is demented.

    Derek Reply:

    Is marriage a human right?

    adirondacker12800 Reply:

    It is in the US since Loving vs. Virginia in 1967.
    From Wikipedia on Loving vs. Virginia:
    Chief Justice Earl Warren’s opinion for the unanimous court held that:
    “ Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”

    Eric Reply:

    And yet the same Warren, like most people at the time, was against gay marriage… how do we reconcile these positions?

    John Nachtigall Reply:

    So you are citing a lawsuit to prove that lawsuits make bad public policy?

    How about we just agree that public policy is hard and both laws and lawsuits can make good or bad policy equally well?

    adirondacker12800 Reply:

    I’m not making the argument that lawsuits are bad. Or good. Just pointing out that marriage, in the US anyway, is a right.

    Derek Reply:

    Back in 1967, they didn’t have a good way to prove the identity of the father, and this made marriage important as a way to ensure child support. Today, marriage is no longer necessary for that purpose.

    adirondacker12800 Reply:

    A marriage certificate proves you showed up for a ceremony, it doesn’t prove paternity. In most states it makes the husband liable for child support but it doesn’t prove paternity.

    Joe Reply:

    This definition is naive.

    Marriage is not for procreation and being married does not assure biological fidelity.

    A couple that cannot procreate is in a valid marriage.

    Parenting is not a biological act.

    Health decisions with immediate family, joint property and intimacy are legally secured in marriage.

    Marriage does not control how and who a women fucks. It provides no control over behavior. If I am eting please clarify what power it bestows on a man over a woman.

    Joe Reply:

    Yes.

    Marriage is a fundamental human right.

    Neville Snark Reply:

    What does it mean to say that marriage is a human right? What in particular? A ceremony? To say that ‘we’re married’? If the law didn’t mention it, surely we could go on with those things.

  4. morris brown
    Dec 1st, 2013 at 17:59
    #4

    @ robert who writes:

    The lawsuits represent an end run around the democratic process.

    nonsense Robert If the project was within the law (Prop 1A), than the Judge would have not ruled as he did. Rather than an “end run” around the democratic process”, the lawsuit enforces that the process be carried out correctly, as demanded by the law; that is a democratic process.

    You are simply being politically naive to believe that Prop 1A would have had any chance whatever of passing if it had been floated in the amount of 30 – 40 billions.

    My Prop 1A would have mandated a 4-track Peninsula rail corridor, and my Prop 1A would have included a streamlined environmental review process.

    Robert, Prop 1A mandated dedicated tracks. How else can it possibly meet the requirement of passing though all stations at full operating speed. The “blended plan” is illegal under Prop 1A. vanArk was fired for insisting that a true HSR project be built. If you are saying, let’s essentially do away with CEQA for environmental approval, than again politically Prop 1A would have gone down in flames.

    What we don’t support is letting opponents drive public policy, or shaping our strategy to appease people who do not want to be appeased.

    I guess what you write here is in your purview, only the advocates can have a say; those against must not be heard.

    Right now, with the 2/3 Demo majority, presumably you could get the Legislature to draw up a new ballot measure, with the language you propose. Why then is the Demo majority not taking this step (at least not as of right now)?

    joe Reply:

    “Why then is the Demo majority not taking this step (at least not as of right now)?”

    Because it may not be necessary.

    And you know the STB claims jurisdiction over HER which puts probably Federal Enviromental Law over CEQA. The State has asked the Appellate Court to invalidate Menlo Parks lawsuit under CEQA. This project may have cleared a major hurdle.

  5. Tony D.
    Dec 1st, 2013 at 18:02
    #5

    Here’s the real issue: if the required federal funding (for the ENTIRE project) was forthcoming/guaranteed, then we’re not having this conversation. Problem is, with the exception of the $3 billion that might be taken back, the Fed funding isn’t coming! Again, we can talk all day and blame the GOP/Tea Party (who I despise) for the lack of HSR funding, but the current reality is just that, REALITY. “Winning” lawsuit unfortunately made light of this financing problem and now it’s over. Time for HSR supporters (like myself) to call for a regional approach that is financially realistic.

    joe Reply:

    Simply build between Fresno and kings county. That’s a useable segment. All CA needs are funds to build that 30-40 mile segment and they can extend further as long as have two stations.
    We have 6 Billion. Probably enough.

    Next is Bakersfield.

    Tony D. Reply:

    Joe just stop, will yah…(shaking head slowly)

    synonymouse Reply:

    “Simply build between Fresno and kings county. That’s a useable segment.”

    Yeah, PB can use it as a testtrack. Plenty of room. Hey, what about testing to determine if changing gauge can enhance lateral stability in those badboy Valley winds? That’s the new modern, different thing. Or maybe 3rd rail and get rid of those pesky overhead wires that give foppish architects the heebie-jeebies. Let’s demonstrate again you don’t need a vactrain or maglev or hypieloop to be one of a kind.

    Ted Judah Reply:

    The issue with your “strategy” is that Democratic lawmakers in the California-stan Legislature demanded Prop 1a cash for their neck of the woods.

    I agree 100% with starting in the Central Valley and expanding outwards to the Bay Area and Southern California, by the way.

    Tony D. Reply:

    FWIW, I’m actually in agreement with our Legislature on that one. IMHO “Bookends” equals more bang for the buck from the get go; Rails to Somewhere! It should be 100% for the Bay Area and LA/SoCal, expanding outwards towards the Central Valley and an eventual connection between regions. There’s now hope…

    joe Reply:

    How come they cannot even connect their conventional rail to the CV?

    HSR will never happen from bookends. The money would just go to commuter service and the State wouldn’t care to tax everyone in CA for local computer rail.

    We have bookend and CV work. Over 500 million in the south for local projects.

    adirondacker12800 Reply:

    Rails already go there!

    Ted Judah Reply:

    Sorry Tony,

    I think in the end, the lack of federal grants in the bookend segments will assure the demise of Prop 1a money there.

    Tony D. Reply:

    @TJ,
    Under the current scheme, you’re probably right. What I’m suggesting is a complete do over; a re-vote of the $10 billion in bonds if you will. 50/50 split between NorCal and SoCal for regional HSR service (again, primarily Caltrain, ACE, and Metrolink), to be spent in conjunction with local funding. No Fed money necessary! Could you imagine $5 billion+ for Metrolink in SoCal and the same for Caltrain/ACE in NorCal. With the ultimate goal being the construction of an I-5 HSR line to connect the two mega regions. Hey! a man can dream, can he not…

    Ted Judah Reply:

    He can. But for 5 billion each, let’s build the Wilshire subway and Ring the Bay.

  6. joe
    Dec 1st, 2013 at 18:08
    #6

    Lisa Schweitzer is hippie punching.
    STFU people, and stop trying so hard.

    Same attack was used against the ERA amendment which failed ratification because women were accused of being too strident. Civil rights protests turn people off, be patient. Stop fighting so hard for birth control access, it alienates religious voters. Gay marriage is a sure loser. ….

  7. Alon Levy
    Dec 1st, 2013 at 18:35
    #7

    On-topic, I’m with you about fully funding the project in advance of course, but… why would you “have mandated a 4-track Peninsula rail corridor”? What benefit is there, except for capacity, should future ridership warrant it?

    While we’re rewriting 1A, my version would have:

    1. Mandated travel times that are substantially looser, on the order of 3:15 LA-SF, but required them to be met in service, say at least once every hour.

    2. Kept alignment questions as undecided as possible, with language allowing environmental work to proceed on both Altamont and Pacheco and both Tejon and Tehachapi, in case one turned out to be geologically riskier than the other. (As Tehachapi indeed turned out to require more tunneling than originally thought after additional geological work.)

    3. Included full funding, which based on 2008 understanding was $33 billion in real dollars, unless there was any other funding forthcoming; any private funding under discussion in 2008 should’ve had contracts signed by the time 1A went to ballot stating that they’d be available automatically upon passage of 1A.

    4. Included a concrete service plan, including for connecting commuter rail (=Caltrain and Metrolink) running on the same routes, with proposed frequencies and travel times.

    5. Explicitly ruled out security theater. Passengers hated that even before the naked scans.

    6. Possibly permitted more flexible phasing, e.g. LA-Sac first if the Bay Area dragged its feet too much, while still requiring full funding to be identified for a usable first phase (where “Amtrak on its own tracks” is not “usable”; try “ready to be used by >250 km/h trains with projections of operating profits within five years of initial service”) in case of unforeseen cost overruns.

    The point of 6 is to raise the political cost of a large cost overrun, to give the politicians skin in the game. “They said they had money for LA-SF but only got us LA-Fresno” is much stronger than the current blame game.

    morris brown Reply:

    Alon Levy wrote:

    6. Possibly permitted more flexible phasing, e.g. LA-Sac first if the Bay Area dragged its feet too much, while still requiring full funding to be identified for a usable first phase (where “Amtrak on its own tracks” is not “usable”; try “ready to be used by >250 km/h trains with projections of operating profits within five years of initial service”) in case of unforeseen cost overruns.

    The point of 6 is to raise the political cost of a large cost overrun, to give the politicians skin in the game. “They said they had money for LA-SF but only got us LA-Fresno” is much stronger than the current blame game.

    Your point 6 would have immediately lost support of SF and San Jose. Senator Yee insisted that Phase I be mandated to be completed first, and it was quite obvious during the hearings, that failure to adhere to this requirement, would kill off the measure. It should be noted, that resistance in the Bay Area, really surfaced later, when Diridon started with his “rotten apples” name calling and with Diridon claiming to PA Council, that opposing our plans will result “in your being over-ridden”. PA council form 9-0 in favor went to 9-0 against the project.

    joe Reply:

    It should be noted, that resistance in the Bay Area, really surfaced later, when Diridon started with his “rotten apples” name calling and with Diridon claiming to PA Council, that opposing our plans will result “in your being over-ridden”. PA council form 9-0 in favor went to 9-0 against the project.

    Palo Alto opposes everything.
    I guess you blame Stanford ifor all the opposition to their projects. Stanford usually has to cough up millions in “traffic mitigation” to get anything approved by Palo Alto.

    Meno Park is worse – it even opposes housing. 20 years of failing to comply with state guidelines for housing until a lawsuit last winter forced the city to add ~1900 units. It took a lawsuit to add housing. So no I wouldn’t blame anyone for having problems with these cities.

    Clem Reply:

    As Tehachapi indeed turned out to require more tunneling than originally thought after additional geological work.

    Additional geological work? This had nothing to do with geology and everything to do with topography. Nobody was checking their numbers when they were doing “trade studies” to pick the alignment through the mountains, and what we got was a pile of distorted lies and selective omissions. The Tehachapi dogleg alignment is now nearing 40 route miles of tunnel. To establish this fact you have to comb through piles of appendices in various alternatives analyses, through obscure passages of monthly consultant reports, other recesses of the enormous and growing pile of data being churned out by the lead consultants, associate consultants, sub-consultants, sub-sub-consultants, etc.

    This is no way to plan let alone build a high-speed rail system.

    synonymouse Reply:

    The secrecy and obfuscation was hardly accidental. But they were bound to encounter skepticism from the outset because their detour is so pronounced and so at odds with default practice. AFAIK Musk did not even give short shrift to Mojave in his tech-fanciful routing.

    I doubt a great part of the public even is aware CAHSR has drifted so far off the well-trodden path, both in the north and the south.

    Alas my innate contrarian keeps whispering there’s some other powers afoot in the mountain crossing. I wonder if Van Ark knew who were the ones fingering him. I think it is more than the Ranch; my intuition says these interests don’t want the demographic around their kingdom they think CAHSR will introduce.

    Joey Reply:

    It’s difficult for HSR to introduce any demographic without a stop. The only place it might matter for is Santa Clarita.

    synonymouse Reply:

    I hear you, but this is truest NIMBY paranoia.

    I am visualizing Van Ark at the Forum surrounded by “friends” with gladius in hand.

    “et tu, Micke?”

    adirondacker12800 Reply:

    the dogleg is all about building a resonator, disguised as a railroad, that will focus the mind rays on you house.

    Alon Levy Reply:

    Yes, additional geological work. The 40 miles of tunnel weren’t there in 2008: a whole chunk of tunneling was added in the 2011 business plan after further work showed that it was impossible to build above ground in the Soledad Canyon without disturbing an ecologically sensitive area.

    adirondacker12800 Reply:

    They’d be taxing people in the whole state once the people in the whole state stop sucking subsidizies out of Sacramento.

    Derek Reply:

    why would you “have mandated a 4-track Peninsula rail corridor”?

    It needs to be (at least) 2 tracks between stations, and 4 tracks at the stations (passing loops) so that express trains can easily pass local trains. I don’t think it has to be 4 tracks all along the corridor, unless bullet trains can’t switch tracks at high speed.

    Alon Levy Reply:

    Two things.

    1. Express trains wouldn’t be switching tracks under such a system; they’d stay on the express tracks. There is no speed limit to the straight direction in a turnout – it’s only the diverging direction, in this case for the local train, that has speed limits. Those diverging speed limits in turn can be very high, >200 km/h, but it’s expensive to install high-speed switches so it’s only done at important HSR junctions and such. This is not such a case, again since all diverging moves would be at low speed.

    2. Not all local stations need to have overtakes. In fact when the speed isn’t very high, and stations are very close together, the time difference per station tends to be small, so only one every few stations needs to have an overtake. In Caltrain’s case, it turns out that with Altamont, only two overtake locations are needed, one in Millbrae for HSR and local Caltrains and one in Hillsdale for express and local Caltrains.

    Derek Reply:

    +1

    adirondacker12800 Reply:

    Until they want to run two more trains and then the overtakes are in all the wrong spots.

    Alon Levy Reply:

    Actually, a 6 tph schedule needs about twice as many overtakes as a 4 tph one, so the overtakes are in the right spot, just more of them are needed. This is because the time difference is frequency minus twice the minimum headway, so if it’s 2.5 minutes, then you get 5 vs. 10 minutes, exactly a 1:2 ratio, and if it’s 2 minutes you get 6 vs. 11 minutes, close enough to 1:2 that the overtakes should generally be at the same locations.

    E.g., on the Providence Line, a 4 tph HSR/commuter rail schedule needs either a single overtake at Sharon or two overtakes at Attleboro and Route 128-Readville. A 6 tph schedule requires three overtakes, at all of these locations, although for schedule reliability reasons, it’d be better to four-track continuously from Sharon to Boston Switch, replacing one overtake with a four-track continuous segment.

    Beyond 6 tph, overtakes on medium-speed regional lines running evenly spaced trains are no longer possible. The Chuo Rapid Line has overtakes at higher frequency, but its maximum speed is 95 km/h, so that the stop penalty is ~45 seconds rather than 75-90 seconds, and the trains aren’t evenly spaced, but rather there are gaps to allow express trains to weave through.

    adirondacker12800 Reply:

    so anything other than low-ish frequency all the station siding merge together into local tracks….

    Alon Levy Reply:

    Not every city is New York and not every railroad is the New Haven Line. Individual lines (as opposed to trunks interlining multiple branches) running >6 tph only exist in enormous cities. Berlin only has 10- and 20-minute S-Bahn lines, with the exception of the 5-minute Ringbahn lines, which shouldn’t really count as commuter rail. Paris has some RER branches running >6 tph at the peak, but Paris is enormous. In a megacity, long shared segments of stopping suburban trains and intercity trains are impossible. In Boston it can work only because Boston isn’t Paris and the Providence Line has very wide stop spacing.

    Joey Reply:

    Contrary to popular belief, scheduling the locals and expresses does not have to be done independently. Future service plans for various scenarios can be designed today (in fact, by anyone with a computer), and provisions for the necessary track expansions can be built. I know commuter railroads on the east coast (and CalTrain today) like to run a bizarre mess of varying skip stop patterns, but that doesn’t mean it’s the only way of doing things.

    Joey Reply:

    It turns out you need more than one stop for an express to overtake a local. Otherwise the local is sitting in the station for minutes on end.

  8. jonathan
    Dec 1st, 2013 at 18:42
    #8

    Lawsuits Make Bad Public Policy

    Stephen Smith was clealry using the wrong tense when he said recently that Robert was turning into a parody of himself: RoberT Cruickshank *is* a parody of himself.

    Robert, you say that Sweat vs Painter was bad public policy?
    Robert, you say that Brown v. Board of Education as bad public policy?

    I’m sure Robert will object that those were “good” outcomes. Which proves my point: Robert is simply labelling as “bad” decisions which he, personally, doesn’t like. The law, the facts, don’t matter: all that seems to matter is doing what Robert wants. Don’t try to cavil that some lawsuits are good and some are bad, depending on how they’re decided: they’re still lawsuits.

    And in the week of Thanksgiving. Robert, you should go hang your head in shame.

    joe Reply:

    “Robert, you should go hang your head in shame.”

    Why? You intentionally misrepresented what he wrote.

    Nothing below even remotely suggests landmark civil rights rulings were bad policy.
    You even ignore that he accepts anti-HRS lawsuits as legitimate and correctly calls them cynical attempts by opponents to enforce the law to kill project funding.

    “I’m not saying the lawsuits were illegitimate. But they were filed with the express intent to kill HSR. In the case of the Kings County lawsuit that led to an unfavorable ruling from Judge Michael Kenny, the plaintiffs used a deeply cynical strategy of claiming that Prop 1A, which they want repealed, is being violated because Congressional Republicans (including David Valadao, who owns land that would be impacted by the HSR route in Kings County) have denied new federal funds for the project – itself an effort to kill HSR.”

    Alon Levy Reply:

    No, there is something to it. The US enforces many rules (environmental protection, labor rights, worker safety) by lawsuits rather than by regulation, and this creates a situation in which the government can freely screw over people without the connections to sue while connected communities can sue even projects that substantially follow the rules into oblivion.

    And it’s related to what Clem said in the other thread, about bureaucracy. In France and Germany, there’s a large bureaucracy of people whose loyalty is to the state who can engineer projects in-house. In the US (and the UK), there isn’t, so it’s all done by consultants with loyalty to their private owners, and the cost is much higher. And this repeats itself all over the Anglosphere as well as in non-English-speaking countries with Anglospheric legal systems, like Israel. You need to dig into the nooks and crannies of the common law world to find cheap or medium-cost public transit construction (e.g. Vancouver and Auckland) and into the nooks and crannies of the rest of the world to find projects that are as expensive as what’s routine in the US and UK (e.g. parts of Germany and the Netherlands).

    Ted Judah Reply:

    …and in California…we have taken this to an even higher level by allowing corporations like PB to donate to a ballot measure that would have directly funneled money to … PB.

    That said, USC’s School of Public Policy (to a man) was dead silent on HSR when I went there. Prof. Schweitzer really isn’t contributing to the conversation, she’s just trying to make it look like USC cares.

    Alon Levy Reply:

    Isn’t USC also the home of James Moore, of “it’s inconceivable that the Blue Line will meet ridership projections by 2000″ fame (it did meet projections)?

    Ted Judah Reply:

    Why yes, yes it is.

    Prof. Moore isn’t shy about sending his opinions through university email by the way. That’s not really unique of course, except that his appointment is actually through the …engineering school….

    Alon Levy Reply:

    Meh. Whatever. His appointment is in transportation engineering. It’s not like my case, which is completely separate, so that I’m uncomfortable doing work in personal email or non-work stuff (with the exception of socialization with people I know through work) in work email.

    Jon Reply:

    This is an argument for why projects such as HSR cost so much more in the US than in countries like France and Germany. It doesn’t explain why the CAHSR is completely stalled whereas in the UK HS2 is moving towards construction with much greater certainty, despite the high costs.

    HS2 has suffered many of the same issues as CAHSR (gold plated planning by consultancies, political wrangling over route selection, NIMBYs) but there is one important difference- unlike CAHSR, HS2 didn’t have to go to the voters to authorize bonds for construction, and so didn’t start with a self-imposed set of constraints which made them vulnerable to lawsuits and limited their implementation options. HSR2 simply needed a bill passed in parliament and money allocated to construction in the general budget once the plan was finalized.

    This in turn is a consequence of a political system that allows government to spend money with more discretion and less voter oversight than in California. Whether you think that is a good or bad thing largely depends on your politics, but it furthers Robert’s point that this is first and foremost a political issue.

    Alon Levy Reply:

    HS2 is fully-funded, but that’s not the same as moving with certainty. There are environmental lawsuits brought forth by NIMBYs. The project was also delayed by the change in government, which led to an obligatory change in route, as always happens when governments change in the UK and Canada.

    Jon Reply:

    I said “much greater certainty”, which I think is accurate. I mentioned the lawsuits and the route changes; my point is that despite these issues HS2 is much more likely to proceed that CAHSR because the government can simply decide to fund it, without having to raise voter approved bonds or go cap in hand to the Feds.

    Richard Mlynarik Reply:

    Some explanation is that PBQD=CHSRA (and the transit-industrial mafiosi local proxies, such as the Caltrain “Modernization” Program) have systematically poisoned all the wells along the entire route, by always putting cost maximization and tons of civil engineering structure ahead of delivering any local benefit.
    Instead of coming in and saying “we’re going to grade separate the freight tracks through the middle of your town in a combined project with a modest-scale new passenger station, which will offer you a 21st century train every 60 minutes to LA and to SF and to anywhere in the Central Valley from Sacramento to Bakersfield” there was only bullshit about “build these 10 miles of overhead viaduct or, um, we’ll be forced to build more airports, because, um, more population in the future, and, like, TOD and Iconic Bridges, so, just pay up, OK!”

    Instead of “The first phase of this carefully phased state-wide project, which will be completed in 2019, will allow your local transit system to run modern commuter trains every 30 minutes across a long-standing rail gap along congested freeways, while the second phase, for 2023, will replace Amtrak with …” you get “Four track viaduct sixty feet in the air because, uh, federal stimulus funding, and, uh, look, a squirrel!”

    Clem Reply:

    The civil engineers should be the last ones allowed to plan transportation networks. They don’t know jack about operations. Hand over the planning to operations researchers.

    adirondacker12800 Reply:

    and people in operations know jack civil engineering. They have to work together.

    Richard Mlynarik Reply:

    and people in operations know jack civil engineering.

    Ahhh, the B Ark!

    Ted Judah Reply:

    There is this field of study called…transportation planning. It might be the sort of thing you are looking for.

    Clem Reply:

    No, that won’t cut it, transportation planning can be done by the semi-numerate. I did mean operations research.

    synonymouse Reply:

    Now Stanford knows how to incorporate salesmanship into a, what, compendium, mission statement, curriculum(?!).

    Sorry if I seem a little more muddled than usual. On Thanksgiving I took a freak fall. So I think my brain is now residing down there in that big, new, blue, fiberglass cast along with my ankle. After some kinda bitter reflection I realized that all my broken bones have had something to do with a party. Never learn.

    Clem Reply:

    Get well! You’re never as muddled as they say.

    synonymouse Reply:

    That curriculum was daunting. Now I remember why I was a French major. Sounds like it would be challenging for a Steve Jobs.

    Ted Judah Reply:

    Ooh. Stanford Engineering versus USC urban planning….

  9. William
    Dec 1st, 2013 at 22:54
    #9

    If I remembered it right, IOS-North is cheaper than IOS-South. Would Judge Kenny’s decision force CAHSRA to switch to the cheaper IOS-North?

    Alon Levy Reply:

    The costs are about the same, and IOS-South connects to a city that’s 2.5 times as big.

    swing hanger Reply:

    Bako-LA (not via Tehachapi), by mid-century. Do it, please.

    Joey Reply:

    If not via Tehachapi, IOS-South would be significantly cheaper. On the other hand, Altamont-SETEC could probably cut quite a bit of money from IOS-North. End it at San Jose even and leave the bay crossing for later – that way San Jose has no risk of being cut out of the system.

    synonymouse Reply:

    Excellent proposal which could very well be the outcome for Pacheco, or an interim concept on the way to relocating to Altamont.

    Too bad SJ does not grasp Altamont gives them great access to Sac. And besides the real economic engine of the South Bay is now to the north of the putative Capital of Silicon Valley.

    Ted Judah Reply:

    Before you get all excited about this idea:

    Prop 1a requires an IOS of SF-SJ-Fresno or Fresno-Bakersfield-Palmdale-LA. Additionally, funding must go to those segments which require the least amount of state support.

    So, without the Federal Railroad Authority, repurposing its grants to apply between Fresno and Gilroy or Gilroy to San Jose, IOS North can’t happen.

    Joey Reply:

    1) Nothing in Prop 1A specifies anything about the “IOS.” It only specifies that the endpoints of Phase 1 must be SF and Anaheim.

    2) The funded parts of the route are (AFAIK) Merced-Fresno and Fresno-Bakersfield, which will be part of either IOS. There’s no funding committed to either mountain crossing ATM.

    Ted Judah Reply:

    (2)  As adopted by the authority in May 2007, Phase 1 of the high-speed train project is the corridor of the high-speed train system between San Francisco Transbay Terminal and Los Angeles Union Station and Anaheim.

    (3)  Upon a finding by the authority that expenditure of bond proceeds for capital costs in corridors other than the corridor described in paragraph (2) would advance the construction of the system, would be consistent with the criteria described in subdivision (f) of Section 2704.08, and would not have an adverse impact on the construction of Phase 1 of the high-speed train project, the authority may request funding for capital costs, and the Legislature may appropriate funds described in paragraph (1) in the annual Budget Act, to be expended for any of the following high-speed train corridors:

    (A)  Sacramento to Stockton to Fresno.
    (B)  San Francisco Transbay Terminal to San Jose to Fresno.
    (C)  Oakland to San Jose.
    (D)  Fresno to Bakersfield to Palmdale to Los Angeles Union Station.
    (E)  Los Angeles Union Station to Riverside to San Diego.
    (F)  Los Angeles Union Station to Anaheim to Irvine.
    (G)  Merced to Stockton to Oakland and San Francisco via the Altamont Corridor.

    It appears to me that the IOS would be defined as a “corridor” under Prop 1a. The ICS would be considered to be a “usable segment”. The quirk is that as Merced Fresno is a different corridor than Fresno-Bakersfield, the federal funding has to be used to connect Fresno and Merced. Then for Fresno-Bakesfield the challenge is finding enough federal money to go south of Hanford.

    Joey Reply:

    1A does not specify that any of these “corridors” even have to be completed – it’s only a guideline for where tracks can be built. Example: LA-Anaheim-Irvine will only be LA-Anaheim in Phase 1, and plans for extension to Irvine have essentially been dropped. It does require that the system be built in “usable segments” consisting of at least two stations.

    synonymouse Reply:

    @ swing hanger

    I suggest a Herrenknecht consortium could breach Tejon in10 years.

    jimsf Reply:

    they should at least get to merced to connect with the norcal unified service

    jimsf Reply:

    Whereas, the Northern California Unified Rail Service Concept seeks to provide
    optimal one-seat ride options for the passenger from Northern to Southern California
    through collaboration by the Parties and sharing of equipment, interlining trains, joint (or
    “shared”) track capacity, common ticketing and public information services, and leveraging
    funding resources

    mou

    Joey Reply:

    If it’s a question of building north to Merced first or south to LA first, I think south wins, simply because south is the place where it’s currently impossible to run passenger trains at the moment. If the connecting services have to be extended south to Fresno for some time that’s probably not that big a deal – they’re already on BNSF’s tracks so BNSF doesn’t loose much by letting them run a bit farther. Connecting from the BNSF to UP/SR-99 ROW is a bit of a question but not unresolvable.

    Alon Levy Reply:

    Is it really an either/or choice? The marginal cost of extending to Merced is almost a full order of magnitude less than that of that of extending to LA.

    Ted Judah Reply:

    I think that is the plan:

    NorCal Unified Services north of Merced (going which way we don’t know). Merced to Palmdale-istan using HSR and then Metrolink/Surfliner/Desert Wind service between Palmdale and LA.

  10. John Nachtigall
    Dec 2nd, 2013 at 05:43
    #10

    Well I am glad I lived to see the day where Robert at least hinted (but dod not admit) that the current HSR plan does not meet the tenants of prop1a.

    My comment, however, is on this ridiculous argument that HSR was ambushed by the GOP. To ambush someone you have to lead them down a path with promise only to pull it away. At no point did the GOP promise CAHSR anything but determined opposition. In fact, at no point did the US government promise CAHSR that they would fund the majority of this project.

    Robert has this obsession that everything would be fine if only the federal government would drop 40 billion in “no strings attached” money off on the doorstep. And because that did not happen it constitutes some kind of ambush or sabotage. There was never a promise past the initial money and even that requires matching funds. There was never going to be a time where the federal government provided all the money for this project, therefore there could never bean ambush.

    He should save his ire for the people who have betrayed him, the CA Democrats. The Democrats say they are supporters, but refuse to use the 2/3rd majority and governorship to raise a tax that could easily provide the stable source of funding he desires. They have the power and refuse to use it. Do you think the GOP would hesitate to fund a project they support? The truth is these “friends” of HSR are only supporters as long as they don’t have to do anything. With Democratic control locked in for the state they risk very little, but still they don’t support it.

    Look not to your enemies Robert but to your “friends”. Supporters have all the power they need to advance this project. Why do they delay? At least the GOP is honest in their opposition. They don’t say one thing and do another

  11. synonymouse
    Dec 2nd, 2013 at 10:53
    #11

    But the Uniparty does not have the stones to put Prop 1a back on the ballot, even with the knowledge aforethought that PB-Tutor-construction unions are prepared to spend millions on pro indoctrination. Instead they are going to leave CAHSR twisting slowly in the wind.

    Nowhere to nowhere is a certain PR disaster, just perhaps the Feds will recognize this in time and force Jerry & co. to pull this idea or radically enlarge it immediately and take their chances at the polls with a bond issue. A failed CAHSR will set the concept back nationally.

    Doctrinaire liberals fail to recognize their pets can be a real problem. I am thinking of militant organized labor. Overcompensation, featherbedding, work rules making it impossible to fire incompetents, these are real problems for rail transit and make it expensive.

    Remember in SF, your workers paradise, the carmens’ union’s insistence on 2-man operation was a major factor in favor of bustitution. A gift to the highway lobby and the diesel foamers. And how about blinking BART?-I hope they’re more careful this time when they fire Crunican for incompetence and/or illiteracy. We don’t need to read no stinkin’ contracts.

    synonymouse Reply:

    And does Robert oppose Amalgamated’s apparently incipient lawsuit against BART?

  12. Derek
    Dec 2nd, 2013 at 10:55
    #12

    My Prop 1A would not have banned operating subsidies.

    Maybe the CHSRA should ask for a level playing field by banning operating subsidies from all roads, not just railroads, or otherwise nullify this anti-competitive clause in Prop 1A. At the very least, such a lawsuit would get people to question whether the government should continue to pick the winners and the losers and whether HSR deserves more popular support in opposition to the government’s meddling in the market for transportation.

    John Nachtigall Reply:

    All transit is subsidized (even walking). The no subsidy requirement was self imposed by the makers of the law. If they thought they could get it passed without it they should have but we are past that point.

    yes, roads are subsidized, but the US highway bill did not say they would pay for themselves. The HSR people could have learned something there.

    Derek Reply:

    Unconstitutional laws can be nullified, even if they were enacted by popular vote in the first place.

    John Nachtigall Reply:

    its unconstitutional? What human rights does an HSR system have? Is there a basic right to HSR transit? Do tell.

    Derek Reply:

    HSR has a right to operate unencumbered by anti-competitive practices.

    John Nachtigall Reply:

    HSR is a mode of transit and a policy, it does not have rights…don’t cheapen the concept of rights by applying it to an inanimate object

    Richard Mlynarik Reply:

    Choo choos are people, my friend.

    John Nachtigall Reply:

    It’s not even a “company”. It’s a transit mode

    Stephen Smith Reply:

    HSR competes with air travel, not roads. Air travel is, for the most part and arguably, unsubsidized.

  13. trentbridge
    Dec 2nd, 2013 at 11:21
    #13

    Engineering brains see the world has having problems that have a “right” solution and a “wrong” solution and they think that there’s a “right” way to get from SF to the CV and a “right” way to get from the CV to LA and every aspect of HSR has “right” and “wrong” solutions. When there’s a social policy/political objective i.e. public transportation across California, there are solutions that benefit the most interested parties that are neither “right” or “wrong”. They are the sausage that was created by the political process.
    A logical person would look at the map of the US and decide that some states are too small (R.I./Vermont/Delaware etc.) and some are too large (Alaska/California/Texas) and there are odd “pan handles” in the borders of many states like Florida, Texas etc.etc. Even California should be two states – Northern California and Southern California. You could even argue that the borders between the states should be redrawn to even out the disparity between the populations of each state..

    The truth is that Prop 1A was the sausage that Sacramento produced that the voters approved.

    Restarting the process doesn’t guarantee a better sausage.

    adirondacker12800 Reply:

    Engineering brains can cope with a solution solving more than one problem and come up with compromises.

    Joe Reply:

    Not so well in my experiences. Multiple problems, conflicting goals or ones where a solution to one aspect of a problem leads to another problem elsewhere vex engineers.

    Wicked problems are a class of oroblem engineers struggle with.

    Prop1a was a political product. It’s a wicked problem.

    Richard Mlynarik Reply:

    Not so well in my experiences. Multiple problems, conflicting goals … vex engineers.

    Ahhh, the B Ark!

    joe Reply:

    I forgot to mention Interpersonal Skills. Thanks for the reminder.

    John Nachtigall Reply:

    I engineer medical devices joe, quality engineering no less. Would you prefer that I optimize for function or would you like me to take into account the interpersonal feeling of the people who are making mistakes. In my experience I find people prefer their pacemakers to work every time rather than save the feelings of the designers when they fail testing.

    All interaction with people is politics, it takes a deft touch to mix them without disaster, but given the choice it is always better to choose effeciency and function over politics. Of course being an engineer I am biased

    joe Reply:

    I prefer you do a professional job and not pretend there is an acceptable compromise between good work and good behavior.

    Look up any decent guideline on engineering reviews and there will be specific instructions on professional behavior.

    You should take into account peoples reations and feelings when authoring a correction or documenting a defect if you want to be effective.

    There isn’t a choice between the two.

    John Nachtigall Reply:

    I will keep that in mind the next time a junior engineer tell me it is “good enough” or “it won’t hurt anybody if it breaks”. Or my favorite “the ends justify the means”.

    We agree there is no compromise between good work and good behavior. I demand both.

    Alon Levy Reply:

    I think you misunderstood Joe’s barb. It was a barb at Richard for not working well with others. Presumably, in the projects you work on, one of the attributes managers are hired and promoted for is being able to work with many different people pulling in different directions. Good managers should know which employees make good suggestions and listen to them; they should know which modifications based on employees’ individual preferences to allow and which ones to veto; they should know how to intermediate between senior managers and underlings; and they should be able to tell underlings what to do without engendering so much resentment that productivity suffers.

    EJ Reply:

    It’ll be interesting though, to see how it pans out. Previously, all rail projects worldwide, whether public or private, were created by creating a committee the smartest, most capable, and fairest individuals that could be found, and then building exactly to their design. Since this is the first rail project in history to involve political compromise of any kind, I think it will be a fascinating experiment.

    synonymouse Reply:

    Au contraire, the Bay Area would have been better off if BART had been delayed for a few years and in the meantime had jettisoned broad gauge, equally oddball and unique operating voltage, A-B cars, etc.

  14. synonymouse
    Dec 2nd, 2013 at 14:32
    #14

    Prop 1a was a politicized product. There is a difference.

    The electorate made the naive assumption that proper professional engineering ethics would be followed ensuring the most efficient and state of the art hsr would be built. They(and I) should have it was to be downgraded to a PB AmBART to pander to some connected developers in Palmdale and Lebec.

    synonymouse Reply:

    should have known

    Drunk Engineer Reply:

    There was nothing “politicized” about Prop 1A. The Legislature wrote it exactly as requested by the CHSRA=PB (execept for the Altamont option, but that wasn’t binding anyway). Indeed, when you consider how some regions (like the East Bay and San Diego) got screwed over, it is amazing that it wasn’t politicized.

    synonymouse Reply:

    San Diego, yes, almost seems to not be considered in California insofar as PB planning went. It’s like Las Vegas replaced SD on the PB totem pole, downright honorary Golden State.

    The East Bay, yeah, screwed royally. I guess it is viewed as too ghetto to rate. They cannot even get a streetcar nor a trolley bus, even in the former Peoples Republic of Berkeley.

  15. Stephen Smith
    Dec 2nd, 2013 at 21:28
    #15

    My Prop 1A would not have banned operating subsidies.

    Robert – what’s so wrong with operating subsidies? You’ve done multiple posts on the inevitability of HSR operating profits, so what’s the problem? Would you really support a project that was so shitty that it lost money in operations?

    swing hanger Reply:

    Likely yes. Paxrail supporters on Robert’s end of the political spectrum view HSR as a public service, like municipal bus lines or Amtrak LD routes in low population states.

  16. TRANSDEF
    Dec 3rd, 2013 at 13:36
    #16

    Robert–your lead sentence is factually incorrect. I work with plenty of people who want HSR, but who recognize the HSRA will never deliver HSR. They don’t want to kill HSR, they want to kill HSRA. A big difference, with critical implications. In fact, given its turndown of SNCF’s offer, it is clear HSRA itself doesn’t want to deliver HSR all that much.

    Ergo, with an analysis based on a false premise, everything else you have to say is either suspect or equally incorrect. You are looking in the wrong direction.

    swing hanger Reply:

    This project is so hyper-political it will never get off the ground. The key point is to remove the meddlesome politics from the equation as much as possible- I suggest that HSRA be dissolved, and have a new, lean authority set-up to institute a build-own-operate-transfer (BOOT) scheme. Have an experienced operator like SNCF or JR East do all the technical and operational work.

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