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Posts Tagged ‘High Speed Rail’

DC Circuit Applies FOIA Exemption to High-Speed Rail Communications

Tuesday, February 18th, 2014

The United States District Court for the District of Columbia has protected discussions between California’s High Speed Rail Authority (CHSRA) and the Federal Rail Authority (FRA) from a Freedom of Information Act (FOIA) request filed by Judicial Watch. Judicial Watch v. U.S. Dept. of Trans. (D.D.C. 2013) 950 F. Supp.2d 213. The protected discussions concerned the development of environmental impact reports for different proposed California High Speed Rail (CHSR) routes and ensuring CHSR properly complied with state and federal environmental laws including CEQA and NEPA.  CHSRA and FRA are “co-lead” agencies on the CHSR project jointly developing the required environmental impact reports. FRA is responsible for ensuring the project complies with NEPA and CHSRA is responsible for compliance with CEQA.

The court granted summary judgment for the Department of the Interior finding that certain records reflecting discussions between CHSRA and FRA were properly withheld from disclosure under FOIA’s Exemption 5. Exemption 5 protects from disclosure “inter-agency and intra-agency” documents relating to the “deliberative process” by which the government makes policy decisions. Dept. of Interior v. Klamath Water Users (2001) 532 U.S. 1, 8. The exemption exists to allow government officials to speak candidly in formulating policy, to prevent the untimely disclosure of proposals before adoption, and to avoid the confusion that would result from disclosing interim rationales that did not form a basis for the agency’s eventual action.

While a strict reading of “intra-agency” would only include employees within the same agency, the D.C. Circuit had expanded the term to include communications with outside consultants, Senators, and former Presidents, so long as the communication aided the agency’s decision-making process. The U.S. Supreme Court in Klamath, supra, set a limit on this expansive view.  Specifically, Klamath  stated that “intra-agency” could not include communications between an agency and non-agency parties with an outside interest in a government benefit adverse to its competitors, even if those communications relate to the agency’s decision-making process.

Here, Judicial Watch contended that CHSRA had an outside interest independent of FRA in seeking large amounts of limited federal funds to support the CHSR and complying with state law requirements that did not overlap with NEPA.

The court rejected these arguments for several reasons. First, even though some interests of CHSRA were distinct from FRA, those interests were too remote from the actual communications at issue in the case. Specifically, the communications did not advocate for funding for California, rather they related to helping FRA satisfy its obligations under NEPA. Second, the benefits that CHSRA sought were not at the expense of other parties. There was not a finite amount of funds available with California vying for a benefit at the expense of other states. Finally, the court noted that the relationship between CHSRA and FRA was created by statute. As a result, the communication between the agency and non-agency deserved greater support.

Because Judicial Watch could not show that CHSRA sought a benefit outside of complying with environmental laws, the court granted summary judgment for the government agencies and protected the discussions between CHSRA and FRA.


This decision affirms that the D.C. Circuit will continue to apply a broad interpretation of the “intra-agency” component of FOIA Exemption 5 even after the Supreme Court’s decision in Klamath, so long as the communications do not relate to an outside party’s interest in obtaining a government benefit at the expense of others

Governor Brown Seeks to Insulate California High Speed Rail From CEQA Challenges

Wednesday, June 6th, 2012

Governor Brown’s office has proposed new legislation that would modify the California Environmental Quality Act (CEQA) to limit the circumstances under which a court could issue an injunction or other stop work order on the California High Speed Rail (HSR) project pending the outcome of CEQA litigation.  The proposed legislation aims to protect the HSR project from a halt in construction that could result from recently filed CEQA litigation, including lawsuits filed by the City of Chowchilla and the County of Madera and Madera and Merced County Farm Bureaus, challenging the Environmental Impact Report (EIR) for the portion of the proposed HSR line that will traverse through the Central Valley.  The Legislature will likely consider the proposal in the next month.

For more information on the Governor’s proposal visit:

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.