A ruling issued Thursday by federal Judge A. Wallace Tashima could have wide-ranging implications for the city's $5.3 billion rail project.
Tashima's 45-page decision said the city failed to take into account the potential impacts of the elevated rail line to Mother Waldron Park in Kakaako, part of the National Register of Historic Places, and did a poor job identifying traditional cultural properties, also known as TCPs. The judge also ruled the city must study a tunnel option along Beretania Street, from the Board of Water Supply Building to Nuuanu Avenue – about a mile in length.
"Defendants' failure to include full analysis of whether the Beretania option was a prudent and feasible alternative during the DEIS (draft environmental impact statement), FEIS (final environmental impact statement), and ROD (record of decision) process was arbitrary and capricious," wrote the judge.
Tashima concluded the city must fully consider the "prudence and feasibility of the Beretania tunnel" by supplementing the project's FEIS and ROD. Although the city discusses the possibility of encountering difficult geological conditions and native Hawaiian burials as part of its administrative record, Tashima said further study of less intrusive tunneling technology should be pursued.
“Defendants suggest that the Beretania Tunnel would have posed risks to below-ground cultural resources, might have encountered groundwater during construction, and would have disturbed large areas on the surface downtown,” wrote Tashima. “But other portions of the record indicate that the Beretania Street route could have been excavated using a tunnel boring machine, which would not disturb the surface and would dig at a level below most burial sites.”
The federal lawsuit was filed in Honolulu U.S. District Court by a group of rail opponents, including mayoral candidate Ben Cayetano, who has vowed to kill the project if elected. For Cayetano, Thursday's ruling by Tashima was a hanging curve ball he’d been waiting for.
"It is a victory for us because it shows to the public that this project was rushed so badly, that the city didn't do the work that it was supposed to do," Cayetano said during a Friday news conference. "You're going to find the project delayed, (and) you're going to find that there'll be millions of dollars of costs that should not have happened."
The city dismissed a tunnel option along King Street because of the high estimated cost — $650 million, according to the rail project's environmental impact statement. However, Tashima wrote there's evidence a tunnel along Beretania Street would actually be cheaper.
In a news conference held just hours after Cayetano addressed reporters, Mayor Peter Carlisle characterized any further examination of the Beretania Street tunnel as a minor detail that would soon be ruled out as an option for the rail project.
"What the ruling really says is we just need to further document and explain why a Berentenia Street tunnel would also be too expensive and is a bad idea," said the mayor.
However, Cayetano believes any further study of the Beretania tunnel option will at the very least require a supplemental environmental impact statement.
"It's as if whatever work they did in the past, all they have to do is attach it to the final EIS," said Cayetano, "And we don't think that's the case. We think that they're going to have to do some real homework on this and get the technical stuff down, and it's going to delay the project."
Cayetano isn't alone in supporting further study of a Beretania Street tunnel as part of the rail project. The Hawaii chapter of the Sierra Club also backs the effort.
"We see (Tashima's) ruling as a really positive opportunity for the city to re-examine the issue, and potentially see if there's a way to offset all the visual concerns people have been raising by undergrounding, particularly in the downtown area," said Sierra Club Executive Director Robert Harris.
Tashima has scheduled a hearing Dec. 12 to determine what measures the city must undertake to satisfy his ruling. Cayetano said he'll ask for a permanent injunction against the rail project.
"We have always maintained that this project is like a steamroller running through the middle of our city without regard to cultural properties, not to mention threatening the aesthetic beauty of our city," said the mayoral candidate, and former two-term Democratic governor.
Honolulu City Councilman Ernie Martin meanwhile issued a statement Friday, saying he believes the city was correct in removing the Beretania Street tunnel as a viable option for the rail project.
"I am optimistic that further analysis will demonstrate that is was the proper decision and that the project can continue to move forward," Martin wrote.
Kirk Caldwell, Cayetano's opponent in Tuesday's election and former acting mayor, characterized Tashima's ruling Thursday as a victory for the rail project.
"The court ruled in favor of the city and FTA on 20 of the 23 counts," said Caldwell. "It confirmed that the Federal EIS was done properly."
Construction of the rail line ceased Aug. 24 after the Hawaii Supreme Court ruled in another lawsuit that the city must complete an archeological inventory survey along the entire 20-mile route, instead of four separate phases.
According to transit authority Executive Director Dan Grabauskas, delays related to the high court's ruling are expected to cost at least $114 million.