06 July 2012

Now What?

In an historic vote, the legislature today approved a funding package worth about $8 billion to begin construction of the first high-speed rail system in the Americas.  To make the package politically more palatable around the state, it included the immediate release of $706 million of so-called "book end" funding in the form of Proposition 1A bonds specifically allocated to the modernization of Caltrain, per the recent Memorandum of Understanding approved by all involved agencies.  The $706M total includes $600M of high-speed rail funding and $106M of non-HSR connectivity funding, from pots of money that are subject to different constraints.  These sums form the lion's share of a $1.456 billion funding package that covers both electrification and a new signal system for the peninsula rail corridor.

While this is no doubt a landmark occasion to celebrate for supporters of modern rail transportation, today's vote will probably not cause anything dramatic to happen on the peninsula in the short term.  Consider:

Taxpayer Lawsuits.  The opposition remains fervent and relentless, and a lawsuit challenging the release of $600M of HSR bonds to improve the Caltrain commuter rail system, with not a high-speed train in sight for more than a decade, is a near certainty.  Protections are built into the law, and require several conditions to be met for release of the funds.  Approval by the legislature is only one of those conditions, and the interpretation of the remaining ones is likely to become legally contentious.

The Environmental Clearance Process.  In April of 2010, Caltrain's electrification project had already obtained federal environmental clearance under the National Environmental Protection Act (NEPA) as the Caltrain board of directors came within a few dramatic minutes of certifying the Final EIR under California's Environmental Quality Act, or CEQA.  The board stopped short, under a surprise threat of a CEQA lawsuit, preferring to resolve any issues outside of the legal system before certifying the FEIR.  While the scope of the electrification project has not changed under the recently approved MOU, the project has now become the first in a series of incremental investments leading up to the "blended system" envisioned in the latest HSR business plan.  That means the electrification EIR may go back to square one for yet another round of public circulation (following prior rounds in 2004 and 2009), a process that is likely to take several years.  It would be surprising to see a new FEIR before 2014.

CEQA Lawsuits.  The sole enforcement mechanism built into CEQA is the lawsuit; it is therefore expected that lawsuits could follow the certification of any EIR.  While clearing electrification as a stand-alone project might be legal under CEQA, the issue is complicated by the project's new association to high-speed rail.  The two-tiered environmental clearance process adopted by the HSR project has already run into serious resistance, with the Bay Area to Central Valley Program EIR about to enter its third round of litigation since 2008.  HSR opponents could easily argue that funding the electrification project under Proposition 1A requires the prior clearance of both this program EIR as well as the project-level EIR for the "blended" San Francisco - San Jose section of the HSR project, including all the project phases expected to be completed after electrification.  Those later phases would include more controversial measures such as the construction of new overtake tracks and new grade separations.  This document is yet to be drafted; while the peninsula project EIR for the full-bore four-track system (still allowed for in the program EIR) was almost ready to circulate as of late 2011, it will require extensive revisions before it conforms to the "blended" configuration.  And that's before it becomes mired in what could become years of CEQA litigation.

The Lead Agency Issue.  The high-speed rail authority has in the past been openly hostile to funding Caltrain improvements.  The new leadership, under board chair Dan Richard, may not be much different.  Richard, like Kopp before him, is a longtime supporter of the expansion of BART, which has always been in invisible tension with Caltrain enhancements.  While he has extolled the merits of the blended book-end approach to gain political support for the entire HSR endeavor, this stance could very well weaken now that the legislative hurdle is passed.  Prior to the vote, he was quoted as saying "The Legislature wanted to emphasize that this money would be there for (the Bay Area and Southern California). And they’re right," highlighting that it is the legislature pushing this funding, not the CHSRA.  Indeed, the Authority, and the transit industrial complex behind it, may be reluctant to push for the peninsula improvements (a) because the opposition there is intense, (b) because of inter-agency rivalry with Caltrain, and (c) because the proposed projects do not involve large-scale civil works of the sort that Parsons Brinckerhoff likes to design, and its acolytes in the construction industry like to build.  Progress on the electrification project could thus depend on which agency leads the EIR process and pushes the project to fruition.  Caltrain is both competent and motivated, but the CHSRA could easily drag its feet--after all, the legislature has only authorized the bond funds to be spent, but the CHSRA retains full authority over when to actually spend them.  All the MOU demands of them is "good faith," which has been in demonstrably short supply.

CBOSS.  While the spotlight is on the electrification project, the MOU and newly passed HSR funding also covers Caltrain's new Advanced Signal System, also known as the Communications Based Overlay Signal System or CBOSS, and often criticized on this blog.  This project is a necessary pre-condition for the operation of light-weight European-style trains, and must be completed by the end of 2015 under a federal mandate that shows signs of being delayed to 2018 or 2020.  Despite Caltrain's repeated insistence to the contrary, CBOSS will not be compatible with HSR other than by fitting two separate, expensive, and functionally redundant signaling systems on high-speed trains, an unavoidable and inconvenient truth that may call into question the wisdom of spending even one cent of HSR money on CBOSS.  A far better outcome would be to make the peninsula rail corridor a testbed for the actual train control system to be deployed on the HSR system, based on the increasingly mature worldwide ERTMS rail signaling standard.

The Timeline.  The money is available only until June 30th, 2018.

UPDATE: The Poison Pill.  At any time before then, a single stroke of the pen from the Department of Finance can transfer the money to the Central Valley projects, per the Budget Act of 2012, Section 2.00, Item 2660-104-6043, Section 3, Provision 2.

The legislature's momentous step leaves many questions unanswered.
  • Is the funding of Caltrain improvements using high-speed rail bonds legal?
  • Will opponents hog-tie the electrification EIR to the high-speed rail EIRs in a bid to delay?
  • Can the existing electrification EIR be tweaked, or is it back to square one?
  • How eagerly will the CHSRA push electrification forward, if the focus is initially in the Central Valley?
  • Is it legal to spend HSR money on CBOSS?
  • Will the project be shovel-ready by June 30th, 2018?
  • How will questions of leadership be resolved, among Caltrain, the CHSRA, Parsons Brinckerhoff, and the regional design consultants?
  • Will the agencies finally treat technical compatibility between Caltrain and HSR, as long advocated in these pages, as the priority that it ought to be, allowing any train to use any track to serve any platform?
Only one thing is sure, there is a lot more sausage-making still ahead of us.


  1. Thanks Clem. I'm curious what other rail funds got into the bill.

  2. Clem, a new FEIR for Caltrain is unlikely to take longer two years, unless Caltrain drags its feet on the issue again. They will likely be segmenting the EIR process for Caltrain electrification and "blending".

    1. There is a problem with "segmenting" as you call it: it's not legal under CEQA. You can't sneak a project through by dividing it up into little mini-projects, each cleared separately. I fully expect this issue to end up in court now that Caltrain electrification is a mini-project under the peninsula HSR "blended system".

    2. That is incorrect. "Segmenting" is completely legal under CEQA. While you can't just chop projects into itty-bitty tiny pieces, you can chop it into rational smaller projects. Hence why BART and VTA were able to separate the extensions to Warm Springs and to San Jose/Santa Clara. One of my environmental law professors worked on the EIR for BART to Warm Springs and we talked about how people argued that because the Warm Springs extension had the sole purpose of being a stepping stone for the San Jose/Santa Clara extension, they shouldn't be segmenting the EIRs.

      According to Laurel Heights v. Regents of University of California, "an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project."

      Clearly, the argument will be that the "blended" plan is a reasonably foreseeable consequence of the electrification project. However, in light of the fact that there is currently no planning taking place for the blended system (we don't even know how/if trains will get from Merced to San Jose), the "blended" plan is not necessarily a reasonably foreseeable consequence requiring study in an electrification EIR.

      On the other hand, Caltrain may take the safe route and release a comprehensive EIR, mooting this entire discussion.

      But yes, I too fully expect segmenting to be a centerpiece of litigation. That doesn't mean that the plaintiffs will succeed in such litigation.

    3. Peter,
      What if the final design for Calfrain's upgrade from SF-SJ (electrification, grade-separations, overtakes, express/local service) was deemed "blended" for future HSR? Regardless if HSR eventually goes Altamont to SJ or the rest of the system is finished period? I think would fly under CEQA. complete 4-track HSR ROW from SF-SJ probably isn't happening until post 2030 anyhow, if it ever happens. In closing, Caltrain SF-SJ might be "blended" from the outset.

    4. If you stop to think about it, it's kind of sad that we're already discussing CEQA minutiae.

      The real question in my mind is when will the CHSRA do more than pay lip service to the blended plan, by formally updating their alternatives analysis to eliminate from any further consideration the four-tracks-all-the-way alternatives (Options A, B1 and B2) ? This is the elephant in the room.

    5. I would guess, based on what I would do, that the CHSRA is doing its level best to pay no more than lip service to any action on the Peninsula until closure of the LA-Bakersfield gap is funded.

      I don't think a segmenting suit would prevail. Perhaps the most convincing line of attack would actuallybe to describe the CHSRA project as one expected to happen and complain repeatedly that the Caltrain project will *hamper* the CHSRA project and make it *more difficult*. Caltrain could of course deal with that by designing a project which is actually CHSRA-compatible.

      Of course, the NIMBY's won't *take* that line of attack because it would trap them into supporting the HSR system...


    6. It is normal to segment project EIRs. For example, rail systems often have an EIR done for a particular segment, even though there are plans and documentations that the rail system could be expanded further beyond the current project limit. If we don't place a reasonable limit, someone could argue that the Transbay Terminal EIR is not valid because it didn't study the impacts of a transbay rail tunnel, and we wouldn't be able to proceed with the San Bruno grade separation because it could help facilitate HSR.

      The electrification EIR should include all elements of electrification, and the impacts caused by changes in operation because of electrification. Electrification alone isn't going to make Caltrain and HSR corridor. It will require additional studies and actions that are independent of electrification.

    7. On the contrary, Transbay Terminal did NT study the impacts of HSR, and the San Bruno grade separation project does NOT allow for HSR.

      Andy, are you paid by Caltrain? Serious question.

    8. Clem:

      It is extremely doubtful that the Authority will give up and eliminate any possibility of a 4 track option on the Peninsula.

      If you have read the Leg Counsel ruling / opinion on legality of the business plan, you will note that they clearly state, ".. to the extent the business plan continues to retain a "full-build" option for the San Francisco-San Jose segment... it is reasonable to to conclude that the revised business plan complies with the bond act's design characteristics."

      Thus, remove the 4 track option, the plan doesn't comply and is not legal under Prop 1A.

      The ruling is not law for sure and only in the courts will what they have stated be finally proven correct or not. Their assertion that "usable segment" means "usable" by either HSR or regular passenger or freight trains is most highly suspect.

      That opinion is clearly not why building in "usable segments" is mandated in Prop 1A. It was meant to enforce that there would be built a HSR project, not an ordinary AMTRAK low speed set of tracks.

      Quite clearly now, CHSRA has changed horses. Richard now describes their mission as being one of "rail modernization". HSR building is no longer their prime mission. After spending the total of the $8 billion now appropriated plus a needed $2 billion to match from local sources, not a single foot of HSR ready track will have been built.

    9. Morris:
      Hypothetically speaking, the Authority could always remain in compliance by choosing to go with another RoW into SF if it suddenly becomes more convenient. If they were forced to do that, I should think they would likely yank any funding they have control over for Caltrain and the blended system and put it elsewhere. Taking it one step further, what might happen to Caltrain under such a scenario? Do they go bankrupt as they claim they will and (dun-dun-dun) BART moves in to close the loop - something a lot of powerful people would like to see (not me, I prefer Caltrain)?

  3. If the "blended" plan is not "areasonably foreseeable consequence" of Prop-1A-funded Caltrain electrification, then how on Earth does Caltain electrification meet Prop 1A's requirements for the HSR bucket of funds?

    I don't see how CBOSS can possibly meet that bar, and I'm not the only one.
    Clem's section above understates the case. Ensuring that a redundant and incompatible CBOSS installation will be made to work correctly with CASHR's native signalling, will _raise_ the costs of that HSR signalling.

  4. The biggest threat to the funding is that according to the bill, the funds can be transferred with one signature to the Central Valley project. They are available to pay for overruns. If I were Caltrain, I get started pronto.

    1. Can you point to the specific language? I don't see it anywhere in SB 1029.

    2. Under section 3

      2. The amount appropriated in this item is available for
      expenditure for state operations, local assistance, or
      capital outlay, and may be transferred to Item
      2665-004-6043 or Item 2665-306-6043. These
      transfers shall require the prior approval of the
      Department of Finance.

      Item 2665-306-6043 is Central Valley construction.

    3. Thanks. I've updated the post with a new Poison Pill section.

    4. What's 2665-004-6043 ?


    5. Good question.

      It appears to be the budget item for CHSRA administration and was part of general budget bill

      It is about $24 million this year and includes $5 million for TY Lin and money for other consultants as well as staff.

  5. Clem,
    Outstanding thread with great information. But I must ask: are you supporting the obstruction of a few to possibly kill Caltrains electrification/upgrade? This seems like a blueprint for NIMBY opponents to screw the rest of us. Please say it ain't so? I know a lot of folks here in SJ who are excited about the modernization of Caltrain. This project should not die in the courts just because a group of selfish obstructionists in PAMPA want it to die.

    1. Oh come on. Really.

      Caltrain modernization has died plenty of times in the past ... and will die plenty of times to come .. not because of NIMBY selfish obstructionists, but because BART and VTA and Muni take the money instead.

      It's a couple dozen local residents stacked up again $10 billion (actually much more when you add up SFO/Millbrae, Third Street, Tasman, Warm Springs, Berryessa, Central Subway, Berryessa-Santa Clara) of concrete and engineering services. Who's really driving the agenda? Really, get real.

      "Order of magnitude check on aisle three!"

    2. No, I certainly want the improvements. Many people in PAMPA do as well; Palo Alto commissioned a study that showed electrification would increase property values by $34 million.

      The issue is and has always been this project isn't a darling of the Transit Industrial Complex because it doesn't involve large-scale concrete pouring.

      I'll do everything I can to help, but I'm not holding my breath.

  6. Prediction: The PTC mandate is not going to be delayed. It'll be implemented and anyone who doesn't implement it will be fined on a yearly basis until they do.

    Why? UP recently slammed two freight trains into each other, head-on, and it appears to be because one of the crews ignored the signals.


    This sort of thing is not going to make it easy for the freight haulers to make a case that they should be allowed to delay PTC implementation. BNSF and the others must be cursing UP right now.


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    1. OT: Clem, will you do more of the Caltrain station design analysis? I would like to know what's your take on the San Jose station, Sunnyvale, Santa Clara, etc.


    2. On the Poison Pill. Probably none of the Senator's knew anything like this was possible.

      However, the "bookend" funding, requires matching funds. The match is to come from Local funds. So having the department of finance take bookend funds and move them elsewhere, they would have to have a matching fund source; probably makes moving the funds very difficult.

      Nevertheless, how many who voted for the bill because of bookend funding realized it was possible they wouldn't get the funds.

      Actually down south, the Leg Counsel ruling / opinion stated none of the proposed projects there qualified for funding.

    3. This is less of a barrier than you think. Because California didn't match 50% on all the fed funds, under Prop 1a, they could spend an additional amount of bond funds in the CV up to the point at which state spending matches federal #. I think this amount is about $700 million, which is coincidentally about the amount of rumored cost over runs.

    4. @ Unknown

      I agree they could indeed move about that amount to the Central Valley without matching.

      Thinking even more about this, what about the $400 million grabbed by Feinstein and company for the "train box" at the TBT. They could also say this was Fed funds for which to date Prop 1A funds have not been matched. Yep plenty of options.

    5. Quick reminder about a "Leg Counsel ruling / opinion": It is simply one lawyer's opinion on an issue, not binding on anyone. Just like an opinion by the AG is not binding on anyone, although it may have significant persuasive value. The Legislative Counsel cannot "rule" on anything.

  8. Clem:

    You really should note that the appropriation of $8 Billions passed by the legislature really means that $10 billion is the total package.

    Two billion dollars of the appropration is supposedly directed at the "bookends" but will need matching funds from local sources. So the "bookends will get a total of $4 billion to spend, if they can raise the necessary matching funds.

    The total then rises to $10 billion. As planed, the $10 bilion expenditure will not result in one foot of HSR track; upgrading to HSR usable track can only come later when more funds are obtained.

    1. That is correct. It may also make good technical sense.

    2. @ Clem

      Regarding the Poison Pill possibility.

      There apparently will not a possibility of "bookend funding" being moved away for other purposes.

      A review of the Leno Committee hearing of July 5, has this excerpt which can be viewed at:

      http://youtu.be/pt1rFobBmL4 (4 minutes)

      The committee did look at that possibility and if you believe Leno and his explanation as well as his being willing to enter into the Journal such an understanding, it would seem this is not an active issue.


    3. Thanks for clarifying that, interesting.

  9. By the way, here is Caltrain's road map for the blended program planning process. They're shooting for completing all of this analysis as well as the preliminary design and environmental clearance by summer 2013. That seems like a really aggressive schedule given the glacial pace of these things, and I would not at all be surprised to see it slip into 2014.

  10. The August 2012 FRA report to Congress on Positive Train Control
    Implementation Status, Issues, and Impacts
    mentions California.

    Two basic PTC systems have either been adopted, or are being adopted by the majority of
    railroads in North America. Though they are functionally the same, they represent two
    different technical approaches. ACSES relies on the use of track-embedded transponders as
    the primary means of train position determination. I-ETMS relies on the use of GPS as the
    primary means of train position determination.
    Other PTC systems that are already in limited use, or are being considered for use, represent
    variations of ACSES or I-ETMS.
    1. ITCS is in operation on the Amtrak line between Chicago and Detroit, and is being
    considered for use on the Caltrain Line between San Francisco and San Jose. ITCS
    architecture is similar to the I-ETMS architecture.
    2. The European Train Control System (ETCS) is under consideration by the California
    High-Speed Rail Authority for high-speed operations between San Jose and Los
    Angeles. ETCS is similar to the ACSES architecture.

    1. Page 14 is the smoking gun: it shows US passenger PTC is fourteen times cheaper than ERTMS. Ahhhh, so that explains it!

      The part that I can't figure out is why at $138k/mile, CBOSS should cost any more than $138k x 50 miles = 6.9 million. The actual figure is $231 million, or thirty-three times higher.

      $231 million is the cost of US passenger PTC plus two ERTMS's thrown in for good measure.

      Clearly ERTMS is way too expensive, Q.E.D.

    2. Another gem from the FRA report to Congress:

      The scope, complexity, and difficulty of PTC interoperability exceed what was originally anticipated. Consequently, the adoption of these standards as railroad industry recommended practices and standards has not occurred. This has impacted the original ITC railroads and the industry as a whole. Without firm interoperability standards, preparation of contract documents to develop and implement PTC has been delayed. Therefore, the start of the acquisition process for many railroads has been delayed. In situations where the standards are available, they cannot be considered “final” as no interoperable PTC systems have previously been built. Therefore, the standards’ correctness and completeness cannot be evaluated.

    3. There are other interesting little gems, right there on page 14. ERTMS is deployed on 22,000 miles of track ( in round numbers ) US PTC will be installed on 60,000 miles. ERTMS is in 5700 vehicles. US PTC will be in 22,000. Hmmmmmmm.

    4. Another gem: " ERTMS deployed ... primarily on a passenger rail network compared to the more complex shared freight and passenger network in the United States.".

      If there's one things that characterizes the European rail network, it's got to be "not complex" and "not shared with freight".

      And where on the face of the earth did they get those $137k/mile and $$1.9M/mile numbers from? Impolite answers suggest themselves, yes, but where are the references?

      I don't think a corporate IT department, let alone a vital safety developer, can fart for $137k, let alone deploy a mile or anything.

      Mile of plain track? Density and complexity of interlockings? Train speed? Traffic density? Replacement of or co-existnence with prior systems? Co-existence with prior PTC systems? Replacement of or co-existence with existing dispatching and scheduling systems? Apples? Oranges? Imaginary?

      The fact that the ERTMS number appears to be a translation from UK pounds and km is fascinating, given the rudimentary amount of test-only ETCS/ERTMS deployed on the "American aircraft carrier anchored off Europe."

      The fact that the US PTC number comes from a three year old sales pierce from a consultant and can't reflect actual deployment costs of I-ETMS or any other system is also fascinating.

      Strange strange stuff.

      It's hard not to think that FRA's authors have little experience, aren't in contact with any foreign organization that has deployed PTC, haven't yet worked out how to use teh Googles, and basically are making this stuff up as they go along. Somebody got paid to write that?

      Good use of clip art from equipment manufacturer catalogs to pad out the piece, though. Fills out the page count nicely.

    5. I like what you did there, comparing future plans with proven track record, a sort of apples-and-seeds comparison. I wonder how the PTC deployed in 2012 in the US compares to the ERTMS that will be deployed in 2020, because that is just as fascinating as your comparison of PTC in 2020 with ERTMS in 2012.

    6. Well to listen the proponents of ERTMS it's going to have all sorts of off the shelf-ish oggly goodness with multiple vendors all in cut throat competition keeping prices down. Where's the competition going to be if there's 60,000 miles of whatever in North America and 15,000 miles of ERTMS in the rest of the world? ( ERTMS tripling between now and 2020 )

    7. I'm not sure where you get your facts and figures, but I will venture a guess that you have mixed up the number of ERTMS track-miles with the number of vehicles equipped (roughly 5,000 today). The number of ERTMS track-miles under contract is already past 40,000 today, not 5,000 as you imply.

    8. "Page 14 is the smoking gun: it shows US passenger PTC is fourteen times cheaper than ERTMS. Ahhhh, so that explains it!"

      I'm pretty sure it's all the balises in the European system. The 'legacy' systems were using all the track-broadcasting spectrum already. In the US the track-broadcasting spectrum was still largely available (it's needed to distinguish between nearby tracks when using GPS). Or in Amtrak's case, the track broadcasting spectrum was already being used for a system which provided most of the benefits of PTC; number of balises necessary was therefore much lower. Also, balise-based systems have a discontinuous character and are therefore painfully harder to make failsafe.