[UPDATE: On Tuesday, July 19, 2011, the state Department of Commerce and Consumer Affairs rejected Bombardier Transportation's challenge to the city's intention to award Ansaldo with the contract to design, build, operate and maintain the elevated-rail line. Bombardier officials haven't announced whether or not they will take the issue to circuit court, the company's next recourse.]
“Hallelujah!” Honolulu Mayor Peter Carlisle was excited. His jubilation echoed the mood inside the large white tent set up along the North-South Road in Kapolei. Powerful politicians—some who flew in specially from the Mainland—flanked Carlisle, including Sens. Daniel Inouye and Daniel Akaka, Rep. Colleen Hanabusa, City Council members, and present and past city officials. They traveled to West Oahu that sunny morning in February to hold a ceremonial groundbreaking for the estimated $5.3 billion elevated-rail project.
Building the Rail
The city has awarded several major contracts to construct the 20-mile elevated rail. Here’s what’s been awarded so far, not including the Ansaldo contract.
The elected officials then gathered outside and lined up behind a freshly formed mound of dirt, and paid little attention to the mostly quiet protestors who were waving signs across the street. The politicians smiled for pictures and poked the mound and turned the dirt with an ‘o‘o (a Native Hawaiian digging stick). A coconut was cracked, the Royal Hawaiian Band played and food was served. The ceremony cost the city $30,000.
However, it was more of a publicity stunt than an actual groundbreaking. Many of its attendees certainly had reason to celebrate. Mock groundbreaking or not, the day marked the closest Honolulu has come to building a rail system. Mass transit has been hotly debated on Oahu for decades; this is the island’s third attempt to make it a reality. The city has achieved substantial milestones on the current road to rail: a .5 percent GET surcharge to fund rail has been levied on Oahu since 2007, Gov. Neil Abercrombie signed the environmental impact statement (EIS) shortly after taking office last winter and, this past January, the Federal Transit Authority (FTA) approved the city’s rail project, enabling it to begin some preliminary construction, such as relocating utilities in Waipahu and grading and trenching work.
But the city still has a long way to go. It’s been four months since the ceremony and no major construction has started—it was supposed to begin in December 2009—and there’s a possibility it won’t start anytime in 2011, or even next year. In the meantime, its price tag will only increase. In 2007, when HONOLULU Magazine last covered rail in depth, the project was budgeted at $3.6 billion—it’s gone up almost $2 billion since then.
City officials portray rail as a done deal. “The voters have decided,” they say, repeating it like a mantra. However, only 53 percent of voters supported the rail project, hardly a landslide. Rail advocates shouldn’t pop the champagne cork just yet; the truth is, when it comes to rail, not everything is, well, concrete.
In the first half of this year alone, the rail project has been met with multiple challenges. Shortly after the FTA gave the city the green light, a federal lawsuit to stop it was filed. Not long after the city announced its decision to award a significant construction and maintenance contract, the losing bidders lodged protests. And after the City Council and the mayor’s Cabinet appointed members for the Honolulu Authority for Rapid Transit (HART), the semiautonomous rail-project board—before they even held their first official meeting this month—the two have continued to squabble over the board’s actual authority. Carlisle even threatened to take the members to court. Can the rail project survive these setbacks? Should it? Depending on which side you’re on, these are either standard public-works hurdles that city officials can jump over or they are strategies meant to halt an expensive and controversial project.
Challenge No. 1: The Federal Lawsuit
Cliff Slater is no rookie when it comes to the city’s history of mass-transit proposals. He’s been involved in organizing movements against rail initiatives since the mid-1980s, with former Mayor Frank Fasi’s rail proposition. He also fought against former Mayor Jeremy Harris’ bus rapid-transit proposal. In 2004, he was plaintiff in a federal lawsuit that he says helped kill the project, even after construction had already begun.
Here is a photo simulation of Mokuola Street and Farrington Highway (same as above) by the local AIA depicting street-level light rail, instead.
Photo Courtesy: Urban Advantage inc.
This time is no different. After the FTA gave its stamp of approval, Slater got to work on a lawsuit aimed at halting the city’s current rail plan—and he has bigwigs from both sides of the political aisle to back him up.
In May, they filed a federal lawsuit against two FTA administrators, the U.S. secretary of transportation and Wayne Yoshioka, the city director of transportation services. In addition to Slater, the plaintiffs include nonprofits Hawaii’s Thousand Friends, Honolulutraffic.com and Small Business Hawaii Entrepreneurial Education Foundation (founded by Republican state Sen. Sam Slom), Judge Walter Heen (former chair of the Democratic Party and former OHA trustee), UH law professor Randy Roth, Dr. Michael Uechi and former Gov. Ben Cayetano.
The lawsuit might be the only time these plaintiffs—unlikely allies—will ever agree on any single issue, and, yet, says Slater, all of them opposed elevated rail enough to publicly tie themselves to the action. Cayetano even donated his own money to pay for legal costs. They’re not anti mass transit, though most would prefer elevated tollways; Cayetano likes light rail.
The Hawaii Chapter of the American Institute of Architects (AIA) supports a street-level light rail system. This is a rendering on Hotel Street.
Photo Courtesy: urban advantage inc.
The lawsuit alleges that officials failed to properly consider and analyze transit alternatives and thus violated the Transportation Act, the National Historic Preservation Act and the National Environmental Policy Act. It also claims that an improperly limited EIS was submitted without fully studying the proposed rail-line extensions to West Kapolei, Waikiki and UH.
“We’re asking the city to follow the law,” Slater says. “They’ve not been honest about it; if they were, it would never get built.”
The group feels confident it’ll win. It doesn’t hurt that it has Nicholas Yost, one of the nation’s most prominent environmental lawyers, arguing the case. Yost, based out of San Francisco, Calif., served as general counsel on the President’s Council on Environmental Quality, and was instrumental in drafting the National Environmental Policy Act, which governs EIS regulations. He received the American Bar Association’s award for outstanding achievement in environmental law in 2010. “Objectively, we think we have a good case,” said Yost during a press conference. “There are so many good arguments.” You might recall that Superferry opponents won by legally disputing the ferry’s EIS.
The case won’t be heard here, but rather in San Francisco, because because all nine of Hawaii’s federal judges and magistrates recused themselves because of conflicts of interest. Turns out they have their own beef with rail. All but one of the judges signed a letter to the FTA opposing the project because the proposed route running down Halekauwila Street, adjacent to the federal courthouse, raises “unacceptable, severe security concerns.”
Kamehameha Highway and Kaonohi Street with elevated rail.
photo: honolulu rail transit project
The out-of-state venue doesn’t bother the plaintiffs and their supporters. Panos Prevedouros, a UH civil engineering professor, says he feels confident about the case. One of the most visible rail opponents—he ran for mayor twice on an anti-rail platform—Prevedouros says he’s not a plaintiff so he can be an expert witness if needed. He has served on the City Council’s Transit Advisory Committee and a transit technology panel; he was the only one opposing an elevated, steel-on-steel rail system both times.
Kamehameha Highway and Kaonohi Street, as it is now.
photo: honolulu rail transit project
“If you are a diligent transportation professional, you would never propose such a project for our city and the tax-paying population we have,” he says. “The engineering properties of the project are not appropriate, and I believe the numbers are being manipulated to show a far rosier picture.”
City officials have heard all this many times, to the point where it’s become amusing to some. No one in City Hall was surprised at the news of the federal lawsuit, says Doug Chin, the Honolulu managing director. In fact, the city budgeted $300,000 years ago to ward off legal challenges.
“We feel like we’re on a good footing,” says Chin, who’s also an attorney. So far, he’s right. This March, the city successfully walked away from a Circuit Court lawsuit filed by Paulette Kaleikini, who wanted to delay the project until city officials commissioned an archaeological survey for the entire 20-mile route, instead of in phases.
Officials had little to say about the current lawsuit. Toru Hamayasu, the chief rail planner and arguably the person most versed on the technical aspects of the project, insists that the city analyzed the different alternatives. “We presented that to the City Council and they chose [elevated rail] because at the time they saw this to be the most cost-effective system,” he says. “Our analysis shows others either cost more to construct and some of them just cannot be done,” including such alternatives as street-level, light rail. He adds that the public’s concerns and comments, including Slater’s, were addressed before submitting the final EIS.
Will this derail rail?
It’s too soon to tell, despite the self-assurance on both sides. Regardless of the outcome, the lawsuit will delay construction—it could take two to three years to play out—especially if the plaintiffs get an injunction to stop all rail-related progress.
The lawsuit is Slater and his group’s last card to halt rail. “We couldn’t risk not going to court,” he says. “Once it’s built, it’s there forever.”
If they win, it will probably kill the city’s elevated-rail plan. It’s not something city officials like to think about; there is no solid Plan B—a big gamble when you’re talking about a $5.3 billion project, largely funded by taxpayers. If rail fails, the city will have to give back the federal money it’s already accepted, most likely using funds from the GET surcharge.
Breene Harimoto, the City Council transportation committee chair, says the city needs to “build the rail as is. I agree with the [anti-rail] arguments being made, I sympathize with them, but I’m not the one willing to say ‘scrap the rail, go back to square one.’ If we forego the federal-money commitments, someone else will get that money. That means this is going to be our third failed attempt. Why would they ever believe us next time? I think it’s either move forward now or forever lose the federal support.”
Challenge No. 2: The contract-bid protests
Shortly after the city prevailed over Paulette Kaleikini’s lawsuit, it was hit with another legal challenge. In March, city officials announced they were going to award rail manufacturer Ansaldo Honolulu a construction and operations contract for the approximate 80 train cars and the rail’s core systems. The announcement was still breaking news when the City Council and the media challenged the actual dollar amount for the contract and the company’s poor track record. The city originally said Ansaldo would receive $574 million, but neglected to mention the contract’s operation and maintenance portions. After the dust settled, following intense Council meetings, the actual price tag was $1.1 billion. To make matters worse, other cities, such as Los Angeles, had problems with the Ansaldo parent company: train cars were delivered late, some with technical problems. A Denmark company that operates the country’s mass transit is trying to break its contract with Ansaldo for these reasons.
What will be impacted?
The Historic Hawaii Foundation has identified 33 historic sites on Oahu that will be adversely impacted by the rail project, including these below.
City Council members weren’t the only ones critical of the contract decision. Sumitomo Corp. of America, and Bombardier Transportation, the losing bidders for the city’s largest public-works project, filed contract protests, stating that Ansaldo shouldn’t get the contract. Bombardier officials also allege they were improperly disqualified from the bid process.
At the end of June, Mike Hansen, the city’s chief procurement officer and its budget and fiscal services department director, rejected both bid protests. According to a city press release, the department found "no procedural or legal violations in any aspect of the procurement." That didn't fly with Sumitomo and Bombardier; a few days later, both companies filed an appeal with the state Department of Commerce and Consumer Affairs (DCCA). If they are later not content with the DCCA’s decision, they can next file appeals with the circuit and appellate courts. Ansaldo can also file a protest. [Editor's Note: See the update on page 1 for more information.]
Will this derail rail?
It won’t stop rail like the lawsuit could, but it has caused delays and, until the two bid protests are resolved, any major work on the rail project will remain at a standstill. Council member Ernie Martin, who’s also an attorney, says because it’s a big contract, he expects the parties will end up in court. “I anticipate it could take a couple of years to resolve.”
City officials declined to comment on the protests, except that, again, the filings did not surprise them. Hamayasu points out that the city has awarded other contracts successfully, such as two contracts totaling $855 million to Kapolei-based Kiewit Pacific Co., which will build the first two phases of the route, from Kapolei to Aloha Stadium.
For some City Council members, the Ansaldo kerfuffle only added fuel to their transparency concerns with the executive branch. “I was disappointed when the Ansaldo issue came up that [Mayor Carlisle] didn’t directly address it. It probably would have created less controversy and less concern,” says Martin, the Transportation Committee vice chair and Budget Committee chair.
In April, Martin and Harimoto traveled to San Francisco, Los Angeles and Copenhagen, Denmark—on the taxpayers’ dime—to check out those cities’ rail systems, all of them Ansaldo projects. It remains to be seen what exactly they observed—because of the protests, city lawyers coached them on questions to avoid asking during their visits, and have cautioned against revealing their findings to the public and the media. They still haven't released their full assessments.
Martin did say, however, that San Francisco officials were mostly satisfied with Ansaldo. “But they also experienced some difficulties,” he adds. “They’re an Italian company, so the difference in time with respect to working with them, because although Ansaldo has entities within the area, all their major decisions are based in Italy.”
Harimoto says he didn’t find anything “earth shattering” about Ansaldo’s work in Copenhagen.
Both Council members were more excited to talk about TOD, transit-oriented development. “That’s the exciting part about rail, it’s not rail itself,” says Martin. “I don’t think the city has done a good job of marketing TOD.”
Hamayasu claims it’s too early to discuss TOD with developers, and wouldn’t talk about it with us.
But Slater says TOD talks have already begun, citing the Hoopili project in West Oahu as an example. “There’s a huge amount of money involved in [rail.] Developers like it because, if you build a rail line, it makes it look more likely that the land that they own will convert to developable property.”
Challenge No. 3: The city’s strained relations
The Ansaldo contract issue aside, the City Council and the mayor’s administration have been butting heads. While the system’s checks and balances means that political entities will never truly be harmonious, for some officials, dialogue has been worse than they’d like, especially regarding rail expenditures. (Tens of thousands have already been poured into the project, and more than $2 billion has been promised in contracts.)
The latest problem revolves around the Honolulu Authority for Rapid Transit (HART). In 2008, residents voted to create the semiautonomous board. This April, the City Council and Carlisle appointed three members each, including First Hawaiian CEO Don Horner and William “Buzzy” Hong, the retired Hawaii Building and Construction Trades Council director. The board’s first meeting is this month. The problem is, the council and the mayor have different definitions of semiautonomous.
The City Council wants budget approval over the rail project, but Carlisle says that violates the charter amendment.
“When I campaigned for office, I didn’t say I’d wash my hands of rail, that was a critical issue for me,” says Council member Martin.
Both sides say they aren’t budging on the issue; Carlisle recently vetoed the Council’s operating and capital budget bills and even threatened to go to court over it. Says Harimoto: “The mayor is an attorney, and I’m not, but there is some question: Can he really take us to court?”
The two bodies don’t mind airing their criticisms openly: The city wants the Council to stop micromanaging, and the Council wants the city to be more forthcoming—to both its members and the public—about the project and its costs.
“It’s almost to the point where the mayor is fully confident that the support for rail is so strong that he doesn’t need to generate more public support for it,” says Martin.
Like Martin, Harimoto has also voiced his concerns to the media and during Council meetings. “As I got into this position and … [saw] things close up, my concerns grew. It wasn’t concerns about whether rail was right or wrong, it was more about how things are being done,” he says.
Will this derail rail?
It’s certainly making things more difficult. HART members won’t be able to do their job if the city and the Council can’t agree on what their responsibilities are. Their grumbling could delay the board’s and the project’s progress. If the different offices can’t maintain a mostly unified front about something they all support, how is the rail project going to get off the ground?
“I think what the mayor underestimated was that, although the Council is supportive of rail, it’s a fairly new Council,” says Martin. “We would have expected that the administration would have been more accessible to providing the Council with the depth of understanding of rail that we should be given.”
Next stop, or last stop?
The city insists that the lawsuits will fail and the remaining federal funding is as good as in the bank. Members of the administration, from Carlisle on down, also think that the past votes for rail mean never having to justify the project to the public again—even if some people are growing skeptical—stating that it needs to continue on the path that’s been forged.
Cayetano disagrees. “Just because it was voted on doesn’t mean it’s written in stone. A vote doesn’t cancel the requirements of the law,” he said at a press conference regarding the federal lawsuit.
Opponents, from concerned citizens to jilted bidders, will have their day in court, delaying progress by years, if not halting rail outright. Those with the “not in my backyard” mentality say rail isn’t worth the visual blight and the worsening of traffic.
If the city and its rail supporters are victorious, you, HONOLULU reader, can enjoy the magazine while jetting into town on the elevated-rail line in 2019.