Published by the Federal Bar Association Transportation and Transportation Security Law Section

Summer 2011 TransLaw

High-Speed Rail—Translating Vision to Reality sometimes referred to as “true” high- speed rail, refers to trains capable of David F. Rifkind hitting speeds of at least 150 mph. Because of the high speeds, Core When President Obama announced Express High-Speed Rail generally on Jan. 28, 2009, that he was making Defining High-Speed Rail must operate on dedicated, grade- high-speed rail in America a priority, The term “high-speed rail” might separated track. An example of Core I admit that I got a tingle of excite- be considered a misnomer in some Express is the planned California ment. I pictured stepping aboard a instances. While it calls to mind trains Rail Corridor, which runs from San sleek, 300 mph train in Washington, such as the Shanghai —which Francisco and Sacramento down to 4 D.C. The train would be propelled is reportedly capable of hitting speeds San Diego. forward on a bed of air by powerful in excess of 300 mph—or the French Regional High-Speed Rail refers magnets, with a ride so smooth that TGV that pushes 200 mph, the term to train service operating at speeds I could sip my coffee from fine china also embraces trains that hit top between 110 and 150 mph. ’s without a drop landing in the saucer. speeds as low as 90 mph. , which is capable of reaching a From the moment that I boarded, I Indeed, there are no less than three maximum speed of 150 mph, aspired would be plugged in to the Internet. different statutory definitions of high- to Regional High-Speed Rail status. One hour later, I would alight in New speed rail. Congress defined the term Acela provides a nice ride in modern York from downtown Washington. in 1991 to refer to train speeds of cars and is scheduled to make the 225 Gone would be the need to arrive at 90 mph or more.1 Three years later, mile trip between Washington, DC the airport an hour or more before my in 1994, Congress boosted its speed- and New York City in 2 hours and 45 flight, all without having to remove based definition to mean rail ser- minutes—31 minutes faster than the my shoes, belt, or the contents of my vice that is “reasonably expected to . Acela’s average pockets. This vision of high-speed rail, reach sustained speeds of more than speeds, however, are close to 80 mph, however, remains a distant dream. 125 miles per hour.”2 But in 2008, and it hits its top speed of 150 mph In reality, the President’s vision Congress scaled back the definition to only briefly on one segment of track is generally more modest and incre- include “rail service that is reasonably between New York and Boston. mental in its approach. And it does expected to reach speeds of at least Emerging High-Speed Rail contem- 5 not include a 300 mph maglev train 110 miles per hour.”3 plates top speeds of 90 to 110 mph. between Washington and New York— Since speed determines eligibil- These speeds would be achieved at least not yet. The goal is to build a ity for federal funding under federal largely by upgrading existing track high-speed rail network that high-speed rail funding programs, infrastructure. Most of this service connects 80% of the U.S. population in the practical significance of including would share track with freight rail 25 years. However, much of the work train service at lower speeds within service. The term emerging is indica- being done now is focused on improv- the definition of high-speed rail is that tive of the evolutionary nature of the ing existing rail corridors to enable more projects are eligible for federal administration’s vision. intercity passenger trains to operate funding. at faster speeds that are closer to 100 Laying the Groundwork for High- mph than 300 mph. Even this more The Administration divides high- Speed Rail modest vision, however, requires a speed rail into three categories: Core The push for high-speed rail in massive investment and must clear Express, Regional and Emerging. several major hurdles. Core Express High-Speed Rail, HIGH-SPEED continued on page 5

Also In This Issue...

Ch a i r ’s Co r n e r ...... p. 3 Le t t e r Fr o m t h e Ed i t o r ...... p. 3 No Or d i n a r y Co m m e n t ...... p. 4 2 TransLaw Summer 2011

Who’s Who in the DOT IMMEDIATE OFFICE OF THE Tr a n s p o r t a t i o n a n d SECRETARY OF TRANSPORTATION Alais L.M. Griffin Tr a n s p o r t a t i o n Se c u r i t y Ray LaHood Chief Counsel Secretary of Transporation La w Se c t i o n Le a d e r s h i p FEDERAL RAILROAD Joan DeBoer ADMINISTRATION Chief of Staff Joseph C. Szabo Marlise Streitmatter Administrator Ch a i r Deputy Chief of Staff Karen J. Hedlund Amy Cassidy Chief Counsel OFFICE OF THE DEPUTY SECRETARY Federal Aviation John Porcari FEDERAL TRANSIT Administration Deputy Secretary ADMINISTRATION Peter M. Rogoff Ch a i r -El e c t OFFICE OF THE UNDER SECRETARY Administrator OF TRANSPORTATION FOR POLICY Hector Huezo Roy W. Kienitz Dorval R. Carter Jr. U.S. Department of Under Secretary of Transportation for Chief Counsel Policy Transportation MARITIME ADMINISTRATION David Matsuda OFFICE OF THE ASSISTANT De p u t y Ch a i r SECRETARY FOR TRANSPORTATION Administrator

POLICY Denise Krepp Polly Trottenberg Chief Counsel Assistant Secretary for Transportation Se c r e t a r y Policy NATIONAL HIGHWAY TRAFFIC Monica R. Hargrove Beth Osborne SAFETY ADMINISTRATION Deputy Assistant Secretary David L. Strickland Airports Council Administrator International-NA OFFICE OF THE GENERAL COUNSEL Kevin Vincent Robert Rivkin Chief Counsel General Counsel Tr e a s u r e r Lindy Knapp PIPELINE AND HAZARDOUS Thomas Lehrich Deputy General Counsel MATERIALS SAFETY Transportation Security ADMINISTRATION Greg Woods Cynthia L. Quarterman Administration Deputy General Counsel Administrator FEDERAL AVIATION Sherri Pappas Tr a n s La w Ed i t o r ADMINISTRATION Acting Chief Counsel David F. Rifkind J. Randolph Babbitt Leonard, Street and Deinard Administrator RESEARCH AND INNOVATIVE TECHNOLOGY ADMINISTRATION P.A. Marc Warren Peter H. Appel Acting Chief Counsel Administrator Im m e d i a t e Pa s t Ch a i r FEDERAL HIGHWAY Gregory Winfree Nancy Kessler ADMINISTRATION Chief Counsel Victor Mendez U.S. Department of Administrator SAINT LAWRENCE SEAWAY Transportation DEVELOPMENT CORPORATION Fred Wagner Collister (Terry) Johnson Jr. Chief Counsel Administrator FEDERAL MOTOR CARRIER SAFETY OFFICE OF INSPECTOR GENERAL ADMINISTRATION Calvin L. Scovel III Anne S. Ferro Inspector General TransLaw is published by the Federal Bar Administrator Association Transportation and Transportation Security Law Section, ISSN No. 1069-157X. Who’s Who in the TSA © 2011 The Federal Bar Association. All rights reserved. The opinions expressed herein are John Pistole Francine J. Kerner solely those of the authors unless otherwise Administrator Chief Counsel specified. Managing Editor: Sarah Perlman

Published by the Federal Bar Association Transportation and Transportation Security Law Section Summer 2011 TransLaw 3

Chair’s Corner Amy Cassidy

Friends and Colleagues: James Fisher, has taken a new job in Security Law Section is exploring By now, you all should have received Oregon and has made the decision to options for collaborating with the your May issue of The Federal Lawyer. step down from his position at this Indian Law Section on their 2012 Indian It has been more than a decade since time. I hope you will join me in thank- Law Conference. To lead this effort, I there was a transportation-themed ing James for his years of service to have created the Ad Hoc Committee on issued of the FBA’s monthly publica- our board. James intends to remain Programming for the 2012 Indian Law tion, and I believe this is an important active within our section, and we wish Conference. Alice Koethe has agreed to and exciting way to share our practice him and his family well on their new serve as chair of this committee. Please with other members of the bar. I am adventure. help me welcome Alice and thank her very proud of the work of the authors Second, as a result of James’ depar- for volunteering for this position. and volunteers in our section who ture, and in accordance with our sec- I hope you enjoy this issue of made this issue possible. I hope you tion’s bylaws, Deputy Chair Hector TransLaw and thank you for your are too! Huezo has acceded to chair elect. I am continued participation in the In addition to our work on The excited to work with Hector during my Transportation and Transportation Federal Lawyer, our section has some remaining months as chair and know Security Law Section. I hope to see other exciting news and changes I’d that our section will be in very capable you at a section event soon! v like to tell you about. hands next year. First, it is with a bit of sadness that Finally, I am excited to announce that I must tell you that our chair elect, the Transportation and Transportation

Letter From the Editor David F. Rifkind

It is my pleasure to present the bizarre. For example, on the funny, worthy, please Summer 2011 issue of Translaw, my but somewhat sad side, there was the pass it on to first issue as editor. I take over respon- woman who prefaced her comments me. sibility for this award winning publica- opposing a rails to trails proceeding This brings tion from Tom Lehrich, whom I want by explaining that her husband had me to the fea- to thank for his hard work, guidance, divorced her at forty, trading her in for ture article. As and assistance. I also want to thank two twenties. This stuff is too good not new to this edit- him for contributing the enclosed an to republish. ing job, I am still learning my way article summarizing an outstanding No Ordinary Comment will feature around this article solicitation thing. If section event at the TSA that occurred a noteworthy comment filed in a you have an idea for an article or have earlier this year. regulatory proceeding. This issue’s one written, I encourage you to send it In this issue, I introduce a new sec- submission was filed in a Surface to me for consideration. For this issue, tion called No Ordinary Comment. Most Transportation Board proceeding I pulled together an article on the state comments filed in regulatory proceed- challenging use of a transload facility of High Speed Rail in America. This ings are straightforward and generally to transfer low-level nuclear waste article provides an overview of the non-descript. Occasionally, a comment from truck to train near a poor town President’s vision, the legal underpin- really stands out, either because it is in Colorado. It’s pure poetry. If you nings, and the regulatory and political funny, creative, or maybe just plain come across a comment you think challenges ahead. I hope you enjoy. v

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TransLaw 4 TransLaw Summer 2011

No Ordinary Comment Featuring a Noteworthy Comment Filed in a Transportation Regulatory Proceeding

We kick off this feature with an ex- the difference between the hard and liant bursts of light and fire, mushroom cerpt from comments filed with the Sur- fast rails that terminate at the south- clouds extending violently toward a face Transportation Board opposing use ern edge of our town and the spine of heaven that could not have possibly of a rail transload facility to handle nu- a ghostly line of raised earth, twisting created such a violent and earth alter- clear waste from the Los Alamos National south like a well intended promise ing monster. The only witnesses to the Laboratory. The author, Aaron A. Abeyta, never kept. The train and its owners arrival of the so called legacy waste writes as a citizen of the Colorado county have always been good at making was an elderly couple, their home a in which the transload facility is located. promises. Sometimes those promises few hundred feet away from the black He uses powerful imagery to appeal to the are small and seemingly benign. Oth- rail cars, their tops removed to accept soul of the regulators. er times they are as ominous as a tu- the bags of contaminated soil filled mor, round and hard beneath the skin, with PCB’s, Radon, Uranium 234, 235 ----- growing and living as it drains its host & 238, and other hazardous and toxic of life. waste. From their home, the couple Dear Members of the Federal Sur- In November 2009, black rail cars, could see the crane, flat-bed trucks, the face Transportation Board, nuclear gondolas, arrived near the ter- four or five men with hard hats and The rail line ends abruptly, as if minus of the rail line. They sat silent as the white bags being lowered into the the builders suddenly grew tired, the fallen snow, awaiting their cargo. The gondolas. From their vantage point, high llano south of Antonito, Colora- residents of Antonito were unaware of directly across from the San Antonio do looming ahead, windswept, bitter their arrival, at first anyway. More spe- River, they could not have known that cold, seemingly barren and extending cifically, they were totally unaware of the cargo had the ominous potential to the edges of the southern horizon, their intended cargo. When the “lega- to alter, not only the river and the Rio standing as an impediment to their cy waste” first arrived at the so called Grande directly downstream, but the determination to carry on. To this day “transload” facility, an abandoned lives of the many families that have you can see the raised earth as it snakes perlite mill, 30 years out of service, its called Antonito home for more than southward, across the llano, always walls eroded by wind and gravity, the eight generations. straddling the highest ground pos- steel of the structure long since cut up sible. It is where the rail was intended and sold as scrap to the highest bid- San Luis & Rio Grande Railroad—Peti- to go; it was never built. The proposed der, the population of Antonito and its tion For A Declaratory Order, STB FD line was to be called the chile line, its surrounding communities were com- 35380 (filed Oct. 12, 2010). intended cargo the smooth green and pletely unaware that their lives would spicy chiles of northern New Mexico. be thrown into a upheaval, a modern The train, like the raised earth where it rendition of David versus Goliath, was meant to travel, has always been four Goliaths, to be exact. an unfulfilled promise to the people The corporations, San Luis & Rio of Antonito. So little has changed in Grande Railroad, Energy Solutions, the 130 years since the train first -ar Los Alamos National Laboratory and rived. For awhile industry and com- the Department of Energy had entered merce thrived, but those apparitions into an agreement to ship contami- of a finer and long term relationship nated soil, via flat-bed trucks, in soft- between the town and its rail line sided containers, dubiously called have long since disappeared, a wisp “super sacks” to the railhead south of of smoke in the ever-present wind that Antonito. None of the agencies or cor- surrounds this place. Some would ar- porations heeded county or local regu- gue that the town exists because of the lations. They simply showed up, con- railroad, and, to a certain extent, that vinced of their right to be there. There is true. Therein lies the conundrum of was no public process, no public notice our current situation, the right to exist given; permits were not sought, and with autonomy and the act of simply the nuclear gondolas were now ready existing. The two are, all at once, simi- to accept their intended cargo, the de- lar and mutually exclusive. They are tritus of a war that ended in two bril-

Published by the Federal Bar Association Transportation and Transportation Security Law Section Summer 2011 TransLaw 5

HIGH-SPEED continued from page 1

America is decades old. The High Rail Corridor Development (Section One emphasizes funding construction Speed Ground Transportation Act of 501). and rehabilitation projects that are 1965 gave birth to the development In addition, the SAFETEA- “ready to go.” of high-speed rail on the North East LU Technical Corrections Act of Funds are distributed pursuant to Corridor. However, with the exception 2008 included $90 million for mag- cooperative agreements. Track Two of Amtrak’s Acela today, America’s lev projects10 and the FY 2008 DOT allocates funds to “corridor pro- high-speed rail dreams largely remain Appropriations Act included $30 grams.” Track Three allocates funds on paper. million for a pilot program entitled to states for planning activities. In 1991, Congress took an important Capital Assistance to States.11 That Although eligible projects included step toward high-speed rail by enacting program provides on a competitive projects that benefit existing intercity the Intermodal Surface Transportation basis up to 50 percent of the capital passenger rail, ARRA requires that Efficiency Act (ISTEA).6 The ISTEA costs to improve intercity passenger “projects that support the develop- included a program to fund safety rail service. Congress appropriated ment of intercity high speed rail ser- improvements at railroad-highway another $90 million for this purpose vice” be given “priority.”16 grade crossings on corridors that the in the FY 2009 DOT Appropriations ARRA high-speed rail funds are Department of Transportation (DOT) Act.12 subject to stringent “Buy America” designated for high-speed rail. However, high-speed rail progress requirements. ARRA funded projects ISTEA led to the DOT’s designa- made a dramatic leap when, at the must use only “steel, iron, and manu- tion of 10 high-speed rail corridors.7 eleventh hour, the Administration factured goods … produced in the The designation of these corridors sought $8 billion in funding for high- United States.”17 These requirements, spurred the formulation of plans at speed rail in the President’s stimulus however, can be waived under cer- the state level. These plans, in turn, package, the American Recovery and tain circumstances. For example, the laid the groundwork for much of Reinvestment Act of 2009 (ARRA).13 Secretary of Transportation can waive today’s activities. Indeed, the fact that An additional $2.3 billion was allo- the Buy America requirements for some high-speed rail projects were cated to the high-speed rail pot by the a project if he finds that “including beyond the planning stage and ready FY 2010 Consolidated Appropriations domestic material will increase the to go was an important justification Act. The President’--s 2012 budget cost of the overall project by more for including high-speed rail funding proposal includes $53 billion over 6 than 25 percent.”18 in the 2009 stimulus package. years for high-speed rail.14 The administration’s announce- In 2008, Congress took another key ARRA required that, within 60 ment of high-speed rail funding toward high-speed rail by enacting days of enactment, the FRA submit generated considerable enthusiasm the Passenger Rail Investment and to Congress “a strategic plan that and interest from states. For the first Improvement Act of 2008 (PRIIA).8 describes how the funding would be round of funding, the FRA received The Federal Railroad Administration used to improve and deploy high- 45 applications from 24 states totaling (FRA), the federal agency tasked speed passenger rail systems.” On $50 billion for rail corridor projects, with overseeing development of April 16, 2009, the President and vice plus 214 applications from 34 states, high-speed rail, describes PRIIA as president rolled out the strategic plan totaling $7 billion for smaller projects. the “most sweeping Congressional entitled “A Vision for High-Speed The FRA made approximately $10.6 action on intercity passenger rail since Rail in America.” billion available to applicants.19 In the those that created … Amtrak and The plan set forth a three-track second round of funding, the FRA the Improvement approach for distributing the $8 “received 132 applications from 32 Project during the 1970s.”9 billion.15 A fourth funding track states totaling $8.8 billion.”20 PRIIA provided much of the statu- was added by the FY 2009 DOT tory framework for allocating the bil- Appropriations Act. A key distinction High-Speed Rail Faces Significant lions of dollars that was to come. It between the tracks is the amount of Obstacles established three competitive grant the funding match required. Tracks Since rolling out the initiative, programs for intercity passenger rail One, Two and Three provide federal however, high-speed rail has encoun- improvement, each providing up to funding for up to 100% of the project tered several hurdles including resis- 80 percent of project funding: Intercity cost, while Track Four provides just tance from politicians and challenges Passenger Rail Service Corridor Capital 50%. Consistent with ARRA’s prima- in reaching agreements with freight Assistance (Section 301); Congestion ry near-term purpose of jump-starting Grants (Section 302) and High-Speed the nation’s economic recovery, Track HIGH-SPEED continued on page 6

TransLaw 6 TransLaw Summer 2011

HIGH-SPEED continued from page 5 carriers on whose track much of the governments, thereby sidestepping much larger cuts to come. planned high-speed rail will operate. the governor.23 On March 2, 2011, two Notwithstanding the current anti- Perhaps the most serious obstacles lawmakers asked the Florida Supreme spending political climate, high-speed are in the political arena at both the Court to force the governor to accept rail has its champions in both politi- state and federal level. At the state the funds by March 4, 2011, the alleged cal parties. Rep. John Mica (R-Fla.), level, November 2010 witnessed the deadline to accept such funds. who recently assumed the chairman- election of a new breed of fiscally The petitioners argued that ship of the House Transportation and conservative governors in states that Governor Scott had exceeded his con- Infrastructure Committee, is among had previously sought federal fund- stitutional authority and violated the those who have been strong propo- ing for high-speed rail. The newly separation of powers under the Florida nents of high-speed rail. However, elected governors in Ohio, Florida, Constitution. In two days, both sides Mica has also been critical of President and Wisconsin each refused the fed- briefed the issue and the court held Obama’s approach to high-speed rail. eral funds that their predecessors had oral argument. On March 4, 2011, the Mica favors funding true high- been awarded, thereby scrapping Florida Supreme Court delivered a speed rail projects, particularly in the their respective state’s high-speed rail unanimous, one-paragraph decision Northeast Corridor (NEC), “rather programs. Ohio turned down $385 summarily denying the petition.24 than squander[ing] taxpayers’ dol- million, Wisconsin turned down $810 Florida’s efforts to keep the fed- lars on costly slow-speed trains to million, and Florida turned down $2.4 eral funds having failed, the FRA nowhere.”28 He also is a champion of billion in federal funds. announced on March 16, 2011, that greater private sector involvement in Florida’s $2.4 billion in federal Florida’s funds were now available high-speed rail. Earlier this year, Mica’s funds would have paid for the major- for redistribution. It had previous- committee and its Subcommittee on ity of the high-speed rail cost. Work ly redistributed funds rejected by Railroads, Pipelines, and Hazardous was slated to commence this year Wisconsin and Ohio.25 Materials held hearings that echoed on the route between Tampa and While the experiences of Florida, these two themes. Orlando. Ultimately, Florida intended Wisconsin, and Ohio are certainly On Jan. 27, 2011, the House to extend high-speed rail from Orlando disappointing to high-speed rail sup- Transportation and Infrastructure to Miami. However, on Feb. 16, 2011, porters, so far it does not appear to be Committee took its show on the road Governor Rick Scott announced that indicative of a larger trend among the to Grand Central Station for a hearing he would reject the federal funds. states. In fact, other states have practi- on “Developing True High Speed Rail In rejecting the federal funds, cally banged down the FRA’s door in the Northeast Corridor: Stop Sitting Governor Scott claimed “capital cost seeking the newly available funds. on Our Federal Assets.” Witnesses overruns from the project could put Secretary LaHood announced recently included New York Mayor Michael Florida on the hook for an additional that the FRA “received more than Bloomberg and former Pennsylvania $3 billion.” Further, Scott disparaged 90 applications from 24 states, the Governor Ed Rendell, both strong the ridership and revenue projections District of Columbia and Amtrak for advocates for high-speed rail in the as “overly-optimistic” and predicted projects in the Northeast Corridor, NEC. that high-speed rail would end up with preliminary requests totaling Mica described the NEC as “[o] costing Florida between $300 mil- nearly $10 billion dollars.”26 ne of the most valuable and poten- lion and $575 million in subsidies At the federal level, however, the tially productive federal assets in over 10 years. Lastly, Scott claimed new Republican majority in the House the United States” which “has been that Florida would have to return of Representatives could spell trouble largely ignored.” According to Mica, the federal funds if it ever shut high- for future high-speed rail funding. “Amtrak’s current plan to bring high- speed rail service down.21 Secretary of Freshman Republicans that rode in on speed rail to the Northeast Corridor Transportation Ray LaHood report- an anti-spending wave of sentiment would require $117 billion, and would edly dismissed Scott’s claims as “balo- appear to be in no mood to spend bil- not be completed until the year 2040.” ney.”22 lions on high-speed rail. In April 2011, Mica claimed that “[e]ntering into Secretary LaHood, Florida leg- to avert a government shutdown, the public-private partnerships to assist islators, and proponents of high- administration struck a deal with in financing high-speed rail develop- speed rail scrambled to try to rescue House Republicans that eliminated $1 ment on the corridor will get it built Florida’s high-speed rail dreams. One billion from the FY 2011 budget and much faster and bring down costs.”29 proposal seriously considered but rescinded $400 million that had been Mayor Bloomberg called for new rejected would have redirected the budgeted for HSR in FY 2010.27 These financing structures to attract private federal funds from the state to local cuts likely are a down payment on investment including “opening the

Published by the Federal Bar Association Transportation and Transportation Security Law Section Summer 2011 TransLaw 7

tracks to competing franchised opera- approval.34 ger rail. Several factors could—and tors” which he predicted “will lead to On May 12, 2010, the FRA issued likely will—contribute to delay in a more options, cheaper tickets, and bet- guidance as to the contents of stake- given month. This includes changes ter service.” According to Bloomberg, holder agreements. Several of the in the level of freight traffic on a line, with competition we might even see provisions required by the guidance mechanical failures, and bad weather. “jetBlue offering trains with leather rankled the freight railroads. Addressing these issues is likely also seats and TV’s.”30 Particularly problematic for the to be complex and multi-faceted. Maybe Mayor Bloomberg’s vision freight railroads are the required Not only is there considerable vari- is not so far off. In fact, PRIIA autho- performance standards guarantees. ability in the causes of delay, but also rized a pilot program to provide pri- According to the guidance, host rail- many of these factors are beyond the vate competition on up to two Amtrak roads must agree “to achieve” speci- freight railroads’ control. For exam- routes. In testimony before the fied on-time performance for each ple, freight carriers have common car- Railroads, Pipelines, and Hazardous intercity passenger rail train. If, in a rier obligations to provide adequate Materials Subcommittee at a March 11, calendar month, the average number freight rail service and generally must 2011, hearing entitled “Finding Ways of minutes of delay that is attributable respond to shipper demands; equip- to Encourage and Increase Private to the host railroad exceeds the per- ment that breaks down on their rail Sector Participation in Passenger formance standards, the host railroad may have originated on other rail- Rail Service,” FRA Administrator Joe must, at its “sole expense” remedy the roads; and even the largest freight Szabo testified that the FRA intended situation within two months by mak- railroad cannot yet control the weath- to move expeditiously on the pilot ing “any operational, maintenance, er. program. He predicted a Notice of or capital improvements necessary.”35 The blame for delays, however, is Proposed Rulemaking later this year, In the event that the railroad fails to too easily laid at the feet of freight that is, assuming the FRA has “ade- comply, the stakeholder agreement railroads. Determining responsibility quate resources in the current fiscal must provide for repayment of the for delay is less than an exact science. year.”31 In his testimony, Amtrak Vice federal grant funds received under Currently, Amtrak tracks delay min- President for Policy and Development the agreement. The amount would be utes based on reports filed by its Stephen Gardner did not shy away determined based on a pro-rata basis conductors. Each time the train is from the idea: “Amtrak is not afraid based on the percentage remaining delayed, the conductor makes a note of competing to operate high-speed of a 20-year period that commenced of the number of minutes and allo- and intercity passenger rail services,” when the property was put into ser- cates those minutes to one of several but asked Congress to create a level vice.36 possible causes such as freight train playing field by ensuring that com- One freight railroad executive lik- interference, slow order, debris, com- petitors are subject to the same laws ened FRA’s demand for performance muter train interference, and delay at as Amtrak, including with respect to guarantees to asking for a free extend- the station, among others. Often, these liability and insurance.32 ed 20-year warranty. Typically, the delays are then attributed to the host cost of a warranty is built into the railroad since it controls the dispatch- Coming to Terms with the Freight price of a product. When a customer ing and has ultimate responsibility for Railroads purchases a television, for example, maintenance. Yet another challenge to advanc- the price of the set includes the seller’s Currently, Amtrak tracks delay ing high-speed rail is concluding the estimated cost of providing a one-year minutes because many of its operat- so-called “stakeholder agreements.” warranty. If the customer wants an ing agreements impose penalties for High-speed rail projects generally extended warranty, he must pay extra excessive delay. The FRA reportedly span more than one state, use exist- based on the seller’s risk. With high- rejected the penalty approach for the ing freight railway tracks, and require speed rail, the cost of a 20-year war- stakeholder agreements because pen- cooperation and participation of a ranty is not priced into the funding alties are paid into the general fund. variety of other entities, including the that the freight railroads are receiv- Requiring the host railroad to take host railroad and the operator of the ing to build capacity to accommodate remedial action helps ensure funding proposed high-speed rail service. To high-speed rail. to address the underlying cause. ensure compliance with ARRA and Moreover, the freight railroads Freight railroads also fault the PRIIA and that the public realizes say that, while linking delay minutes FRA’s focus on a single metric. They the benefits of high-speed rail, the might have a superficial appeal, it point out that there are other public FRA generally requires that the states does not make much sense. The fact benefits to high-speed rail projects enter into agreements with stake- is that operating a freight railroad that should be taken into account holders critical to project success.33 is a complex operation, made all the Those agreements are subject to FRA more so by the presence of passen- HIGH-SPEED continued on page 8

TransLaw 8 TransLaw Summer 2011

HIGH-SPEED continued from page 7 including safety and environmental freight trains moving at 30 mph pres- The need for PTC to work with trains benefits. Issues related to on-time per- ents obvious challenges. Passenger traveling at high-speeds adds an addi- formance do not necessarily mean trains must be able to pass the slow- tional level of complexity and cost. that the FRA is not getting value for er moving freight trains, requiring Nevertheless, under the FRA’s its investment. investment in infrastructure, such as active leadership, several stakeholder Reportedly, the FRA has backed passing tracks, sidings, cross-overs, agreements have been concluded. Rail off some aspects of the guidance in its and signals. However, there are lim- executives involved in negotiations negotiations with the freight railroads its on such investments, such as ter- report spending long days negotiating including dropping the funding claw rain. Consequently, it is not always with FRA and state representatives, back provision and showing flexibil- possible to avoid conflicts between sometimes well into the night. ity on the performance guarantees.37 freight and passenger trains simply by With the conclusion of stakeholder However, the FRA has not issued new investing in more infrastructure. agreements, work is proceeding on guidance. Moreover, a rail carrier’s right-of- billions of dollars of high-speed rail The simple fact is that freight rail way has a finite amount of room projects around the nation, translating and high-speed passenger rail sharing in which to expand. Adding passing vision to reality. v the same rail are not a comfortable track for the benefit of passenger rail fit. Congress relieved the freight rail- may limit the railroad’s future ability David F. Rifkind is a shareholder in the roads of their common carrier obli- to expand capacity for the benefit of Washington, DC office of Leonard, Street gation to provide passenger service its freight rail service. and Deinard P.A. He regularly represents in the Rail Passenger Service Act of Additionally, the presence of pas- rail carriers and other entities in the 1970 that created Amtrak.38 In doing senger traffic on freight rail tracks transportation industry. so, however, Congress also mandated requires the freight railroad to deploy that freight railroads grant Amtrak expensive Positive Train Control (PTC) Endnotes access to their rail networks. Further, technology on the line. Immediately 123 U.S.C. § 104(d)(2)(c). Congress has mandated that passen- following the deadly collision of a pas- 249 U.S.C. §26105 ger trains receive priority over freight senger commuter train and a freight 349 U.S.C. § 26106(b)(4). trains.39 train in California, Congress passed 4California High-Speed Rail While Amtrak pays freight rail- the Rail Safety Improvement Act of Authority, www.cahighspeedrail. roads compensation for use of their 2008 (RSIA ‘08), which included an ca.gov/Proposed_Route_Planner. tracks and, at least some of the freight unfunded mandate that the freight aspx (last visited Apr. 10, 2011). railroads enjoy a good relationship carriers deploy PTC systems on tracks 5Fe d e r a l Ra i l r o a d Administration , with Amtrak, they are not getting rich shared with passenger rail by Dec. 31, Hi g h -Sp e e d Ra i l St r a t e g i c Pl a n : Th e off accommodating passenger trains. 2015.40 Am e r i c a n Re c o v e r y a n d Reinvestment Freight railroads generally prefer to At a very general level, PTC tech- Ac t 2, available at www.fra.dot.gov/ focus on their core business—mov- nology integrates an information and downloads/RRDev/hsrstrategicplan. ing freight. They are not typically communication system that monitors, pdf. enthusiastic about expanding pas- among other things, train operations, 6Intermodal Surface Transportation senger operations that cut into their maintenance activities, and track Efficiency Act, Pub. L. 102–240, core business. The mere presence of authorities (e.g., the maximum autho- 105 Stat. 1914 (codified in scattered passenger rail on a freight rail track rized train speed for a section of sections of 15, 16, 23, 26, 33, and 49 reduces the available capacity. Each track), with a command and control U.S.C.). time a freight train pulls off on a sid- system that is capable of remotely 7California Corridor, Pacific ing to allow a faster moving passenger stopping or slowing a train in order to Northwest Corridor; South Central train to pass the freight railroad, costs avoid an accident.41 Corridor; Gulf Coast Corridor; are incurred. Costs may include fuel, While PTC systems exist, deploy- Hub Network; Florida labor, delay, and lost opportunity to ment on a nationwide scale has turned Corridor; Southeast Corridor; move additional freight. Such costs out to be a significant challenge and ; ; can also impact the railroads’ overall a far more expensive proposition and Northern New England Corridor. competitiveness with other transpor- than Congress contemplated when it See Chronology of High-Speed Rail tation modes such as trucks. passed RSIA ‘08. Current estimates Corridors, www.fra.dot.gov/rpd/ Operating passenger trains at 110 put the 20-year cost to deploy and mph on the same track as 100-car maintain PTC at $10 to $14 billion.42 HIGH-SPEED continued on page 11

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HIGH-SPEED continued from page 8 passenger/618.shtml (last visited Apr. com/2011/02/16/florida-governor- Corridor at 3, available at republicans. 10, 2011). rick-scott-rejects-federal-high-speed- transportation.house.gov/Media/ 8Passenger Rail Investment and rail/ (last visited Apr. 10, 2011). file/TestimonyRailroads/2011-01-27- Improvement Act of 2008, Pub. L. 22Julie Hirschfeld Davis, Florida’s Bloomberg.pdf. 110–432, 122 Stat. 4907 (codified at 49 Governor Scott Gets Week to Reconsider 31Panel Holds Hearing on U.S.C. §§ 22701-28505 (2008)). Refusing High-Speed Rail, Bl o o m b e r g , Increasing Private Sector Participation 9Federal Railroad Administration, Feb. 25, 2011, www.bloomberg.com/ in Passenger Rail Service, democrats. High-Speed Intercity Passenger Rail news/2011-02-26/florida-s-governor- transportation.house.gov/press- (HSIPR) Program, 74 Fed. Reg. 29900- scott-gets-week-to-reconsider- release/panel-holds-hearing- 01, 29901, 2009 WL 1748204 (June 23, refusing-high-speed-rail.html. increasing-private-sector- 2009). 23See Florida’s Last Hope for $2.4 participation-passenger-rail-service 10SAFETEA-LU Technical Cor- Billion and 24,000 High-Speed Rail Jobs (last visited Apr. 10, 2011). rections Act of 2008, Pub. L. 110–244, Dashed, floridatransportationtoday. 32Amtrak: Private Investment Not 122 Stat. 1572 (2008). typepad.com/florida-transportation- a Panacea, www.railwayage.com/ 11Department of Transportation ne/2011/03/floridas-last-hope-for- breaking-news/amtrak-private- Appropriations Act, 2008, Pub. L. 24-billion-and-24000-high-speed-rail- investment-not-the-silver-bullet.html 110–161, 121 Stat. 2375 (2007). jobs-dashed.html (last visited Apr. 10, (last visited Apr. 10, 2011). 12Department of Transportation 2011). 33Fe d e r a l Ra i l r o a d Administration , Appropriations Act, 2009, Pub. L. 24Altman v. Scott, No. SC11–396, supra note 5, at 15. 111–8, 123 Stat. 915 (2009). 2011 WL 783600, slip op. at *1 (Fla. 34Federal Railroad Administration, 13American Recovery and Mar. 4, 2011). High-Speed Intercity Passenger Rail Reinvestment Act of 2009 (Stimulus 25Federal Railroad Administration, Program—Stakeholder Agreements Bill), Pub. L. 111–5, 123 Stat. 115 (2009) supra note 19, at 1443. at 2 (May 12, 2010), available at (codified in scattered sections of 6, 19, 26USDOT: 24 States, DC and https://www.mwcog.org/uploads/ 26 and 47 U.S.C.). Amtrak All Want Florida’s HSR committee-documents/_aF5YWllc 14Department of Transportation Money|Transportation Nation, 20100831090526.pdf. Appropriations Act, 2010, Pub. L. transportationnation.org/2011/ 35High-Speed Intercity Passenger 111–117, 123 Stat. 3035 (2009). 04/06/us-dot-24-states-dc-and- Rail (HSIPR) Program Grantee FAQs, 15A Vi s i o n f o r Hi g h -Sp e e d Ra i l i n amtrak-all-want-floridas-hsr-money/ www.fra.dot.gov/rpd/passenger/ Am e r i c a : Hi g h l i g h t s o f St r a t e g i c Pl a n (last visited Apr. 10, 2011). 2377.shtml (last visited Apr. 10, 2011). 1 (2009), available at www.fra.dot.gov/ 27Department of Defense and Full-Year 36Id. downloads/RRDev/hsrspfacts.pdf. Continuing Appropriations Act, 2011, 37Jeff Berman, FRA Intends to Make 16American Recovery and Pub. L. No. 112-10, 125 Stat. 38 (2011). Changes to Stakeholder Agreements Reinvestment Act of 2009 (Stimulus 28Press Release, U.S. Congressman for High Speed Rail Grants, Logistics Bill), supra note 13, at 206. John Mica, Mica to Address High Management, Aug. 27, 2010, www. 1749 U.S.C. § 24405(a)(1). Speed Rail Conference (Mar. 4, 2010), logisticsmgmt.com/article/fra_ 1849 U.S.C. § 24405(a)(2). available at mica.house.gov/News/ intends_to_make_changes_to_ 19Federal Railroad Administration, DocumentSingle.aspx?Document stakeholder_agreements_for_high_ High-Speed Intercity Passenger Rail ID=174803. speed_rail_g/. (HISPR) Program: Notice of Funding 29Press Release, Committee on 38Rail Passenger Service Act of 1970, Availability for High-Speed and Transportation and Infrastructure, Pub. L. 91-518, 84 Stat. 1327 (1970). Intercity Passenger Rail Projects, 76 Statements of Chairman Mica & 3949 U.S.C. § 24308(c). Fed. Reg. 14443-01, 1443, 2011 WL Chairman Shuster from Hearing 40Rail Safety Improvement Act of 884818 (Mar. 16, 2011). on Northeast Corridor High-Speed 2008, Pub. L. 110–432, 122 Stat. 4848 20DOT Press Release, U.S. Rail (Jan. 27, 2011), available at (codified at 49 U.S.C. §§ 1139-24316 Transportation Secretary Ray LaHood transportation.house.gov/News/ (2008)). Announces $2.4 Billion for High PRArticle.aspx?NewsID=1042. 41Positive Train Control | AAR. Speed Rail Projects, www.dot.gov/ 30U.S. House Transportation org, www.aar.org/Safety/Positive- affairs/2010/dot19210.html (last and Infrastructure Committee, Train-Control.aspx (last visited Apr. visited Apr. 10, 2011). Testimony by Mayor Michael 10, 2011). 21Florida Governor Rick Scott Rejects R. Bloomberg: Developing True 42Id. Federal High Speed Rail, www.flgov. High Speed Rail to the Northeast

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TransLaw Published by the Federal Bar Association Transportation and Transportation Security Law Section 1220 N. Fillmore St., Suite 444 Arlington, VA 22201