A much anticipated lawsuit that could determine the fate of Honolulu’s $5.26 billion rail project is nearing an end, and the timing could affect the race for Honolulu mayor.

On Tuesday, U.S. District Court Judge A. Wallace Tashima will hear arguments about whether the city of Honolulu and the Federal Transit Administration violated federal law when choosing a 20-mile-long, elevated heavy rail system to link Kapolei to downtown Honolulu over other transit options.

The plaintiffs, which include former Hawaii Gov. Ben Cayetano and HonoluluTraffic.com, say they don’t believe the city thoroughly looked at all the options when analyzing the alternatives to the rail system, and is now proceeding with a project that will harm historical and cultural resources, including Native Hawaiian burial grounds.

Cayetano is running for Honolulu mayor on an anti-rail platform, and was the top vote-getter in the Aug. 11 primary. This lawsuit is one way he hopes to dismantle the project. His opponent, is former Honolulu Managing Director Kirk Caldwell.

While a ruling in favor of the plaintiffs won’t necessarily kill rail, it could significantly delay the project. It could also result in the city losing $1.55 billion in hoped for federal funding that would be used for construction.

Don’t Expect a Trial

Matthew Adams, who represents the rail opponents, said he doesn’t expect Tashima to make a ruling Tuesday, although he believes it could be the final day for attorneys to argue their points.

“I think everybody expects that these cross motions for summary judgement will end up resolving the case,” Adams said. “I don’t think the case is going to proceed to the kind of thing where people are calling witnesses and offering evidence. Instead, I think the judge is going to resolve it with these motions and this proceeding.”

Other plaintiffs in the case include rail opponents Cliff Slater and Randy Roth, who is a professor in the William S. Richardson School of Law at the University of Hawaii. Republican State Sen. Sam Slom’s Small Business Hawaii Entrepreneurial Education Foundation and Hawaii’s Thousand Friends are also plaintiffs.

The lawsuit argues that the city and FTA violated procedural provisions in several federal laws, including the National Environmental Policy Act, the National Historic Preservation Act and the Department of Transportation Act, when making the decision to move ahead with rail.

While the nuances can bore even the most ambitious law student, the crux of the suit is that the plaintiffs don’t believe rail is the most environmentally and culturally sensitive project, and that it wasn’t the best high speed transit option on the table.

Were the Rules Followed?

“Our case essentially is, ‘Hey, you really didn’t consider all the alternatives to the project and if you go back and do the analysis properly you may come to a different conclusion,’” Adams said. “We think that if they apply the law properly they’re going to have to find a project that’s not harmful to historic resources and Native Hawaiian burials.”

The city and FTA disagree that they didn’t follow the law. So too do the intervenors in the case, which include the Pacific Resource Partnership and Faith Action for Community Equity.

In a brief statement, Honolulu Authority for Rapid Transportation Executive Director Dan Grabauskas said the city and FTA followed the relevant rules when deciding on the current iteration of the rail project.

“The City looks forward to presenting its case on Tuesday in the HonoluluTraffic.com vs. Federal Transit Administration litigation,” Grabauskas said. “The City’s position has always been that the City and the FTA conducted a comprehensive environmental evaluation of the rail project and has fully complied with the National Environmental Policy Act and other federal laws.”

Bill Meheula, who represents the intervenors in the case, echoed this. He also said if the judge rules against the city and FTA, he hopes the project can proceed while the agencies correct any flaws in the procedural process.

Does Timing Matter?

But the biggest question to come out of Tuesday’s proceeding doesn’t necessarily have to do with how Tashima rules. It’s more a matter of when.

Cayetano and Caldwell face off in the Nov. 6 general election, and rail has become a central issue in the race. Some are even looking at the vote as a referendum on the project. If voters choose Caldwell, they support it. If they pick Cayetano, they don’t.

If Tashima rules before Nov. 6, the result might be enough to sway undecided voters one way or another. But as he drafts his opinion, he also must consider the fact that the city is still moving ahead with construction.

“In the past Judge Tashima has indicated an awareness of the fact that there’s kind of an evolving political situation and there are things happening on the ground,” Adams said. “It’s important to get this resolved as quickly as possible. But at the same time he’s going to take as much time as he thinks he needs.”

There’s also the matter of the Full Funding Grant Agreement that, if approved, will bring $1.55 billion into Honolulu to help complete the rail project. A lot of attention has been paid to this, especially as the city awaits the federal government’s decision on whether to approve its FFGA application.

Cayetano is also paying attention to how the lawsuit might impact the FFGA. While it’s unclear what he could actually do to stop the rail project if elected mayor, the federal government might be leery of dishing out $1.55 billion to a city that might not appreciate it.

“The lawsuit is important to the extent that is addresses the City’s violations of federal environmental law,” Cayetano said in a statement. “A favorable ruling by the court could cause the FTA to re-examine its partial funding. The ruling will not, however, address the issue of the project’s impact on the fiscal integrity of the City. Nor will it address whether what is being proposed is the best alternative to relieve traffic congestion.”

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