Phil Craig, the consultant who prepared the alternative rail study for Kamehameha Schools, spelled out in a recent email the reasons he believes the city’s rail project is vulnerable to legal challenge.

I’m taking the liberty of quoting him at length.

I suggest a careful read of the Notice of Intent to Prepare an Environmental Impact Statement for High Capacity Transportation Improvements in the Leeward Corridor of Honolulu, HI, as published in the Federal Register, Volume 72, No. 50, pages 12254 to 12257, Thursday, March 15, 2007. For your convenience and those of others copied on this message, I am attaching a copy, which I used as one of the appendices to my light rail transit report to Kamehameha Schools.

This notice, placed in the Federal Register by the United States Department of Transportation, Federal Transit Administration and by the City and County of Honolulu, specifically stated under V. Alternatives, Fixed Guideway Systems (page 12256):

” The draft EIS would consider five distinct transit technologies: Light trail [sic] transit, rapid rail transit, rubber-tired guided vehicles, a magnetic levitation system, and a monorail system.”

In contrast with the above, the DEIS prepared by CCH, and upon which a 45-day public comment period (ending on February 6, 2009) was held after its approval by Region 9 of the Federal Transit Administration, considered only one transit technology, rapid rail transit [the all-elevated automated light metro] with three routing variations: via HNL Airport, via Salt Lake Boulevard, and via both the Airport and Salt Lake Boulevard.

Simply stated, the DEIS did not conform to the Notice of Intent published in the Federal Register. This was brought to the attention of USDOT’s most senior officials by the late Councilmember Duke Bainum and his colleague, Charles Djou in their June 2, 2009 letter. To date, however, both CCH and USDOT/FTA have chosen to ignore that fact as they attempt to “railroad” the HHCTC Project through the environmental review process (no doubt encouraged to do so by certain members of Hawai’i’s Congressional Delegation).

It is my understanding of the National Environmental Policy Act (NEPA) and the agency regulations implementing it that it is mandatory that parties responsible for preparing, reviewing and approving an Environmental Impact Statement must adhere to that which was published in the Federal Register.

Inasmuch as the USDOT/FTA and CCH failed to comply with the published intent of the DEIS, it is my belief that this deficiency alone is sufficient grounds for a successful legal action in the Federal Courts that, if pursued, will result in setting aside any Final Environmental Impact Statement (FEIS) or Record of Decision (ROD) based upon it published or approved by the Federal Transit Administration. The end result would be that construction of any part of the Honolulu High Capacity Transit Project, as currently constituted, would be enjoined for failure to comply with NEPA.

While there are other significant areas in which the DEIS is defective, I hope that this fundamental and glaring lapse of process does not pass unnoticed by those concerned with the future of the Island of O’ahu.

Craig has also spelled out why it is not “too late” to consider more flexible light rail technology, as the Hannemann Administration claims.

The HHCTC Project is only in a conceptual engineering phase; preliminary engineering is yet to begin, let alone final engineering. If the City Administration were to issue an addendum to its Request for Proposals seeking a Design, Build, Operate and Maintain (DBOM) Contractor calling for the use of low-floor light rail vehicles (instead of high-floor light metro cars) with rolling stock maintenance and storage facilities to match, and allowed an additional 90 days to allow its three bidders (AnsaldoBreda, Bombardier and the Japanese consortium) to revise their proposals for the initial East Kapolei to Peal Highlands segment, Notice to Proceed still could be issued to the successful bidder by February/March 2010 instead of November/December 2009 as currently proclaimed to be possible.

Please note that all three of these companies have light rail vehicles in their catalogs that would be suitable for use in Honolulu. Indeed, were the City Administration willing to revise the DBOM Contract and reopen the bidding, it is probable that firms like Alstom and Siemens that dropped out and others like KinkiSharyo of Japan and Hyundai/Rotem of South Korea that chose not to enter the competition – which also could provide suitable vehicles – would reconsider their previous positions and expand the competition for this work.

The only other significant revision to the proposed contracts would be to require that the height of the high-level platforms of the planned elevated station be lowered to fourteen inches (14″) above top-of-rail to match the floor height of low-floor light rail vehicles. The major impact of this change would be to result in shorter rises in mezzanine or street to platform rises of escalator, elevator and stairways. Station designs also are preliminary at this point – to something changing also would not delay completion of the project by four-to-five years.

And why should we take Craig seriously?

You can make your own assessment of his credentials as an experienced rail planner and consultant, which appear to me to be impressive.