Legal expert examines rail lawsuit judgment

Legal expert examines rail lawsuit judgment

HONOLULU (HawaiiNewsNow) - Leaders on both sides of the rail debate still dispute who came out the victor from yesterday's federal decision on the project. The ruling does not take into question the merit of the project.  It just asks if alternatives were studied.  While it's debatable which side won, the more important point is that neither side has lost yet.

"This ruling doesn't do a whole lot to stop the rail. The best it can do is delay it because environmental impact law both at the federal and state levels are informational laws," said David Callies, University of Hawaii at Manoa, William S. Richardson School of Law Professor.

That delay could be to satisfy three issues still on the table.  The first deals with Traditional Cultural Properties.  A TCP is important to maintaining the cultural identity of the community.  The city identified Chinatown as the only one along the 20 mile rail route.  The judge said before continuing with the project in any way the city must finish identifying more cultural properties.

"The changes may result in significant environmental impacts in a manner not previously evaluated and considered," wrote Judge Wallace Tashima, in the summary judgment.

Another area of concern is the historic Mother Waldron Park in Kakaako.  The ruling says, "There is a great deal of evidence in the record that the project's impacts on Mother Waldron Park will be quite serious."

It also said there will be "devastating" effects on the view.  Also "the guideway is out of character with the historic appeal" and "the (Final Environmental Impact Statement) and (Record of Decision) glossed over these troubling observations."  The city must reconsider the park impact.

The third issue is the city failed to adequately consider the Beretania Street tunnel prior to eliminating it as an option.  The city argued the tunnel didn't meet the need of the project and studying it could have damaged utilities, groundwater and the roadway.

So will any of these three issues stop rail?  Legal expert and law professor David Callies doesn't think so.

"It doesn't strike me that this is an overly burdensome task to comply with these three," said Prof. Callies. "I would be surprised if it took more than six months. I would be surprised if it took more than a year because it doesn't strike me that there's that much to do. It just strikes me as a delay which will cost the city and agency involved more money."

Keep in mind a delay will cost a lot of money. The city in the past estimated as much as $10 million for each month delayed.

It could also affect federal funding.  The Federal Transit Administration is already waiting on election results and this lawsuit could also slow things down as well.

"My favorite quote is from a federal decision in 1971, 'a project when finished may be a complete blunder, NEPA (National Environmental Policy Act) just insists it be a knowledgeable blunder.' That's it in a nutshell," said Prof. Callies.

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