FTA, Inouye: Honolulu Rail Project Can Move to Next Phase, But Critics Say City Should Hold Off Until Court Challenge is Resolved

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BY MALIA ZIMMERMAN – HONOLULU, HAWAII – Honolulu’s rail project full speed ahead? Well not quite, but the Honolulu Authority for Rapid Transit did receive a boost yesterday to its plans to construct a 20-mile, elevated steel wheel on steel rail system from Kapolei to Honolulu by the year 2019.

The Federal Transit Administration awarded the City & County of Honolulu a “Letter of No Prejudice” or permission to move forward with its next phase of construction on the $5.3 billion project.


That includes $185 million, or 3.5 percent of the total project costs, toward erecting pillars, building the foundation for the rail, and establishing storage facilities along the first half of the route from east Kapolei to Aloha Stadium.  The city already has been relocating utilities in this area.

Damien Kim, chair of HART’s project oversight committee, said the project will create “thousands” of jobs, boost the economy and “be at the heart of an efficient multimodal transportation system to help deal with the island’s increasing traffic congestion…”

But not everyone believes this is good news for Oahu’s taxpayers.

Retired businessman Cliff Slater and University of Hawaii Law Professor Randall Roth, who are two of 7 plaintiff’s challenging the rail’s environmental impact in federal court, said the Letter of No Prejudice “merely continues the city’s ability to risk city taxpayer dollars.”

U.S. Sen. Daniel Inouye, the most powerful advocate of the rail project, made the announcement about the FTA’s decision yesterday. Inouye, who is the chair of the Senate Appropriations Committee, also promised $1.5 billion in federal funds for the project.

But Slater and Roth said there is still no guarantee that there will be any federal dollars. “All the letter does it tell the city it may collect federal funds should they ever be available,” they said.

The plaintiffs challenging the project, who also include former Gov. Benjamin Cayetano, retired Judge Walter Heen, Sen. Sam Slom’s Small Business Hawaii Education Foundation, Dr. Michael Uechi and Hawaii’s Thousand Friends, may prevail in their lawsuit in August. If so, the City will have to replace and repair what they have constructed in what are mostly agricultural fields during that time.

The plaintiffs have not sought an injunction, which is expensive and can be difficult to obtain.

“Under environmental law that is not considered causing ‘irreparable harm’ to the environment,” Slater said. “For that reason, we have not sought so far a preliminary injunction to stop this initial construction. The city has planned all along to start at the farm end of the line in order to pre-empt anyone from filing for a preliminary injunction under environmental law.”

Slater and Roth point out the City is risking city taxpayer dollars with its decision to move forward before the lawsuit is resolved.

“As taxpayers we find it unfortunate that the city intends to risk spending $185 million and similar millions of dollars to repair and replace what they construct but under the law that is a money problem and not an environmental problem,” Slater and Roth said.

“Our position is that the city violated federal law and we, and our lawyers, expect to prevail. In this matter the judge will not consider the amount spent but only consider the matter on its merits under environmental law.”

The FTA can award the city another Letter of No Prejudice to push construction further or design a full funding agreement with the city.

But as rail critic Panos Prevedouros, a University of Hawaii engineering professor, points out Congress will still have to approve federal funding for the project, unless the city plans to fund it exclusively with local funds. That may be particularly challenging since House Republicans in Congress are carefully considering whether to eliminate new start funds for rail projects.