Your Baseline is Invalid

Tech employer buses are breaking the law. Why didn’t the MTA ever consider having them use white zones?

First: Why should it be legal for tech employer buses to break the law?

The League published our position on tech employer commuter buses in January 2014, “Hey Tech Buses: Just Pay Your Fair Share, Please”. We presented what we thought were two reasonable requirements for a program regulating the buses:

  1. The companies need to pay their fair share to compensate for delays to Muni and for the tech buses’ impact on housing costs.
  2. The SFMTA needs to take a closer look at the number and location of stops and what roads the tech buses should be allowed on to minimize safety risks and delays to Muni.

Why do the employer buses need to use Muni stops? For years, intra-city shuttles (UCSF, Academy of Arts, etc.) have gotten by just fine using white zones. Why didn’t the MTA ever consider requiring the tech buses to use white zones to minimize delays to Muni?

Instead the MTA voted to move forward with a pilot program devoid of any research on the impact to Muni, the environment or the City as a whole. In response, the League of Pissed Off Voters joined with the Harvey Milk LGBT Democratic Club, SEIU 1021, Sierra Club and Sara Shortt to demand that the MTA go back to the drawing board and do their homework first — study the environmental impact of this program before implementing it.

We don’t want to stop the buses, we just want companies to pay their fair share, minimize their impacts on Muni, and mitigate their safety risks. Unfortunately, the MTA, the Mayor, and the Board of Supervisors have failed to implement a program that meets these basic requirements. We decided to get involved in this after the City has completely rolled over for the tech companies. If they continue to pursue this flawed program, we feel we have no choice but to sue to force them to analyze its environmental impacts. But we are ready and willing to negotiate a solution that will avoid that needless conflict so we can all move on to more important issues.

Second: The real baseline — our legal argument about why the proposed tech bus permit program needs environmental review.

The Board of Supervisors vote is very narrow and complicated. It’s governed by the California Environmental Quality Act, or CEQA. The Supes decide whether to uphold the Planning Department’s decision to issue a Categorical Exemption and deny the Appeal or to overturn Planning’s decision and require additional environmental review.

The whole thing hinges on the fact that the Planning Department claims there is no reasonable argument that the pilot program could have significant environmental impacts, because “the commuter shuttles are part of the existing environment, and potential impacts from the Project must be compared against this baseline condition.”

But their proposed baseline of August 2013 is invalid because it is based on ongoing illegal activity that is allowed by the MTA’s willful failure to enforce the law against stopping in Muni zones.

This ongoing illegal activity directly contributes to delays in Muni, which have a significant environmental impact. The fact that the MTA has never attempted to measure Muni delays caused by employer buses is another indication that the baseline justifying the categorical exemption is invalid.

If the MTA was enforcing the law and the employer buses continued to operate, they would be required to use white loading zones. This would eliminate the Muni delays they are causing.

Our argument that the MTA’s baseline is invalid is supported by the California Superior Court’s 2011 decision on Klamath Riverkeeper et al v. Department of Fish and Game. Klamath Riverkeeper was appealing Fish and Game’s EIR for a program to issue permits for agricultural diversion of water. This diversion, which was currently happening, was illegal. The permits would establish a legal framework to allow the diversion to continue, but to better manage it. The court found that:

“When a lead agency issues an EIR, it cannot include activities allowed by the agency’s complete non-enforcement into the baseline . . . .
“Neither the Guidelines nor case law allows an EIR to set an illusory no-enforcement baseline that absorbs all ongoing illegal actions and ignores the stricter limitations imposed by a new statutory landscape. Although generally the baseline must include the effects of prior illegal activity, the situation is different when an agency has a concurrent, present responsibility to remedy that prior illegality.”

Klamath Riverkeeper’s argument cited the U.S. District Court in “League to Save Lake Tahoe v. Tahoe Reg’/ Planning Agency (E.D. Cal. 2010) 739 F. Supp. 2d 1260.” (LSLT) The League to Save Lake Tahoe decision invalidated the baseline for an Environmental Impact Statement that included existing unpermitted buoys on Lake Tahoe, even though TRPA had enforcement authority to remove buoys.

In the Klamath decision, the Superior Court found that the rationale in LSLT was “applicable to the instant case by illustrating how an agency may not evade enforcement responsibilities by absorbing the effects of its failure to enforce into the baseline.”

In the LSLT decision, the District Court held, “[A]n agency may not escape its duty by ignoring that duty and then presenting the results as a fait accompli incorporated into an environmental baseline.”

California courts have only allowed project baselines to incorporate prior illegal activity in certain circumstances:

  1. The prior illegal activity resulted in permanent physical environmental damage.
  2. The prior illegal activity already underwent CEQA environmental review.
  3. The prior illegal activity was subject to prior enforcement actions.

The first two circumstances clearly do not apply in this case, and we do not believe the MTA can credibly argue they have engaged in any significant enforcement of employer buses stopping in Muni zones.

In Fiscal Year 2012-2013, the MTA issued 4,262 citations for stopping in Muni zones, including both employer buses and private autos, which is less than 12 citations per day. 48 Hills reported that Bauer’s Intelligent Transportation, one of the largest employer bus providers, emailed the MTA asking that their current citations be waived and previous fines be refunded. They were only able to document eleven total citations: “(1) from March 2013, one (1) from October 2013, and then nine (9) from November 2013 through January 2014.” Considering the MTA estimates there are 35,000 daily boardings of employer buses, it is clear they have never tried to enforce the current law.

Therefore we call on the Board of Supervisors to reverse the Planning Department’s determination that the MTA’s Commuter Shuttle Policy and Pilot Program is exempt from environmental review. The baseline conditions that Planning used to determine that the program was Categorically Exempt is invalid because it is based on the MTA’s willful failure to enforce the existing laws.

Until they are able to adequately measure the environmental impact of allowing employer buses to use Muni stops, the MTA should enforce the law to prevent delays to Muni. Most of the intra-city employer buses are able to function using white zones. The regional employer buses should be able to use white zones as well.

In case you missed it above, we are ready and willing to negotiate a solution.

Why do we even care about this stuff?

People have been asking us why the League got involved in this issue, and why we didn't focus on x, y, or z issue that’s bigger and more important. We would rather be focusing on what we do best: researching the stuff on the June ballot for our Pissed Off Voter Guide. But we were disturbed by all of the arguing about tech buses between our friends who are progressives and urbanists and tech workers. And when the MTA completely dropped the ball on the pilot program, we decided to weigh in to try to help work out a compromise.

We try to be a progressive “decoder ring” for complicated political speak, and to present our viewpoint on issues in a way everyone can understand. So, in addition to our voter education work, we speak up on a number of the big issues of the day and try to explain them from our progressive perspective.

Who is the League of Pissed Off Voters?

We’re a bunch of political geeks in a torrid but troubled love affair with San Francisco. We’re blessed to live in America’s most progressive city, but we’re cursed to live in a city where most of the youth who grow up here can’t afford to live here. Frisco has its own dark history of injustice: redevelopment, environmental racism, the “old boys” network. All of us lucky enough to enjoy the San Francisco magic owe it to our City to fight to keep it diverse, just, and healthy. What are you doing to make a difference?

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