Law to hobble Brightline proposed

[spuwho]

Per Trains:

Florida legislation would hobble Brightline expansion

http://trn.trains.com/news/news-wire/2017/03/20-florida-legislation-would-hobble-brightline-expansion



TALLAHASSE, Fla. — Bills introduced in Florida's House and Senate would require the Florida Department of Transportation to create a new state bureaucracy "to regulate railroads where not federally pre-empted" — an effort which appears aimed at All Aboard Florida's Brightline passenger service.

However, the proposals introduced in the last two weeks are not only at odds with Federal Railroad Administration's jurisdiction over intercity passenger trains but also with established divisions of infrastructure responsibility between railroads and local governments.

The legislation, proposed by lawmakers representing the "Treasure Coast" area north of West Palm Beach, would add liability, funding, and reporting obligations for railroads operating trains above 80 mph, and give any community the ability to dictate train speeds through its town.

A "Florida High-Speed Passenger Rail Safety Act" sponsor, Sen. Debbie Mayfield, R.-Vero Beach, said at a hearing of the state senate's transportation committee that it was strictly a safety measure applying to all railroads in the state. But only All Aboard Florida's proposed 110-mph service would surpass the 80-mph threshold. The Brightline service would use existing Florida East Coast tracks between West Palm Beach and Cocoa, Fla. — through Vero Beach, Fort Pierce, and Stuart — before trains to Orlando International Airport would head west on a grade-separated 125-mph right-of-way.

Rusty Roberts, vice president of government affairs for All Aboard Florida, charged at the hearing that the law is unconstitutional because it targets one company. In a statement to Trains News Wire, he says Mayfield "misled her colleagues" in saying that the bill would not transfer financial responsibilities from one party to another, "which is not true."

Henry Flagler built the FEC into South Florida in 1895. Roberts says that over the ensuing decades, permission was given to build roads that crossed the tracks, "under the condition that costs of construction and maintenance of the roadways and safety apparatus remain the responsibility of the public, whom the roads benefit."

He notes that All Aboard Florida made a commitment to bear the financial burden for the upgrades and safety improvements needed to allow 110-mph operation "in full compliance with all the latest and highest applicable (FRA) safety standards."

Although some of these costs "are rightfully the obligation of the public under longstanding agreements," Roberts tells Trains News Wire, "All Aboard Florida committed to pay for the necessary infrastructure required to upgrade the grade crossings on the corridor, which according to the existing crossing agreements would be the responsibility of the county. This includes [FRA] sealed corridor guidelines."

Before Brightline service can begin, this crossing in downtown Melbourne, Fla., on the "Treasure Coast" will have to be modified with a second track and conform to FRA sealed-corridor requirements for 110-mph operation, regardless of the outcome of proposed Florida legislation.



The railroad helped agencies in Miami, West Palm Beach, and Broward County fund crossing improvements required to create quiet zones in the 79-mph territory on the first Brightline segment south of West Palm Beach by using its contractor and flagging crews "to realize a significant cost savings," Roberts says. He adds that "All Aboard Florida has asked to work with municipalities and counties in the Treasure Coast on implementing quiet zones, but local authorities have said no."

In part, the proposed Florida High-Speed Passenger Rail Safety Act:

• Creates extensive monitoring responsibilities for the Florida Department of Transportation, requiring a new group of state inspectors who can "meet certain certification requirements" and "identify standards for conducting field surveys."

• Demands the railroad construct and maintain fencing at locations where state DOT surveys identify "pedestrian traffic generators, such as nearby schools and parks, and signs of current pedestrian traffic that crosses the tracks" and arrange "at least one public meeting in each community before designs are finalized."

• Holds the railroad liable for all damages resulting from failure to maintain a fence.

• Allows local governments to enact ordinances "regulating the speed limits of railroad traffic due to local safety hazards not statewide in nature and not capable of being adequately encompassed within national uniform standards."

• Requires a railroad to maintain all public crossings entirely at its own expense within the right-of-way and adhere to the DOT's applicable requisition and procurement procedures.

• Imposes reporting requirements and insurance sufficient to cover "any losses resulting from a reasonable worst-case unplanned release of liquefied natural gas."

• Establishes fines of no more than $10,000 for each violation, with those funds going to the state's transportation trust fund.

The act also demands that the railroad install positive train control with associated crossing health monitoring, already required by FRA regulations.

The proposed legislation must evaluated by community affairs and appropriation committees before both chambers can vote on it prior to the end of the current legislative session on May 5.

In a restructuring announcement earlier this month, All Aboard Florida signaled its intention to expand to Tampa and Jacksonville, and perhaps the intermediate Treasure Coast markets Brightline trains will initially bypass to and from Orlando. The legislation may test the desire of lawmakers outside the sponsors' area to place more hurdles in front of a private company willing to build a system, particularly at a time when federal funding for public transportation is in question.

[thelakelander]

Lol, the dirty game of politics. I wonder if Brightline's announcement to expand to Tampa and Jax is part of a preemptive effort to sink this proposed legislation. With that said, I don't see something creating more bureaucracy that's at odds with the FRA, having a realistic chance at passing. Besides, FDOT already has their hands full creating and maintaining the road network it already has. They shouldn't be anywhere near rail.

[Lunican]

I think they may run into trouble with this proposed law.

Congress and the courts long have recognized a need to regulate railroad operations at the federal level.
City of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998). A number of federal laws are controlling, but three commonly
found to preempt state and local attempts to regulate railroad activities are the Interstate Commerce Commission
Termination Act of 1995, the Federal Railroad Safety Act of 1970, and the Noise Control Act of 1972. 

The state and local issues examined in this section are limited to those that are primarily related to land use. The
general principal arising from the statutory and case law is that, if a railroad is engaged in transportation related
activities, federal law will preempt state and local attempts to regulate.   

The ICCTA preempts state and local regulation, i.e., "those state laws that may reasonably be said to have the
effect of 'managing' or 'governing' rail transportation." Norfolk Southern Railway Company v. City of Alexandria,
608F.3d 150, 157 - 158 (4th Cir. 2010) (city ordinance regulating the transportation of bulk materials, including ethanol,
and city permit unilaterally issued to the railroad under the ordinance regulating the transport of ethanol to the
railroad's transload facility, was preempted by the ICCTA).  Thus, the ICCTA preempts the state and local regulation
of matters directly regulated by the Surface Transportation Board, such as the construction, operation, and abandonment of rail lines.
Emerson v. Kansas City S. Ry. Co. , 503 F.3d 1126 (10th Cir. 2007); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439 (5th
Cir. 2001). Whether a state or local regulation is preempted requires a factual assessment of whether the action would have the effect of preventing or unreasonably interfering with railroad transportation. Emerson, supra.

Issues regarding state and local regulation of train speed and the duration that railroad crossings are blocked are
also considered under the Federal Railroad Safety Act of 1970 ("FRSA"). The FRSA contemplates a comprehensive
and uniform set of safety regulations in all areas of railroad operations.  Chicago Transit Authority v. Flohr, 570 F.2d 1305
(7th Cir. 1977).

More info here:  http://www.dot.state.mn.us/frac/PDF/landusereg.pdf

[spuwho]

I think they may run into trouble with this proposed law.

Congress and the courts long have recognized a need to regulate railroad operations at the federal level.
City of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998). A number of federal laws are controlling, but three commonly
found to preempt state and local attempts to regulate railroad activities are the Interstate Commerce Commission
Termination Act of 1995, the Federal Railroad Safety Act of 1970, and the Noise Control Act of 1972. 

The state and local issues examined in this section are limited to those that are primarily related to land use. The
general principal arising from the statutory and case law is that, if a railroad is engaged in transportation related
activities, federal law will preempt state and local attempts to regulate.   

The ICCTA preempts state and local regulation, i.e., "those state laws that may reasonably be said to have the
effect of 'managing' or 'governing' rail transportation." Norfolk Southern Railway Company v. City of Alexandria,
608F.3d 150, 157 - 158 (4th Cir. 2010) (city ordinance regulating the transportation of bulk materials, including ethanol,
and city permit unilaterally issued to the railroad under the ordinance regulating the transport of ethanol to the
railroad's transload facility, was preempted by the ICCTA).  Thus, the ICCTA preempts the state and local regulation
of matters directly regulated by the Surface Transportation Board, such as the construction, operation, and abandonment of rail lines.
Emerson v. Kansas City S. Ry. Co. , 503 F.3d 1126 (10th Cir. 2007); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439 (5th
Cir. 2001). Whether a state or local regulation is preempted requires a factual assessment of whether the action would have the effect of preventing or unreasonably interfering with railroad transportation. Emerson, supra.

Issues regarding state and local regulation of train speed and the duration that railroad crossings are blocked are
also considered under the Federal Railroad Safety Act of 1970 ("FRSA"). The FRSA contemplates a comprehensive
and uniform set of safety regulations in all areas of railroad operations.  Chicago Transit Authority v. Flohr, 570 F.2d 1305
(7th Cir. 1977).

More info here:  http://www.dot.state.mn.us/frac/PDF/landusereg.pdf

Excellent law quotations. (I am very familar with the City of Auburn case)

A couple of issues.

The first 2 cases were about railroads registered as common carriers that perform interstate commerce. AAF/Brightline is not a common carrier and only operates within a state boundary.

Because of this they were technically exempt from certain FRA regulations. One of the disputes with the TC folks is they didnt like which FRA rules AAF was choosing to follow, and which ones they ignored.

As an offset, AAF agreed to cover some of the crossing costs normally borne by the public as a way to smooth out some of the FRA based objections.

I will have to research the laws around the RR safety act and the CTA. Being a instate rail service, but not a common carrier, I am curious how the law is applied. They would be similar to AAF in some ways, less so in others.

The City of Auburn case was about a rail yard that was demoted because after the BNSF merger, they sold the Stampede Pass line to a 3rd party. For the most part it fostered a lot of weeds but little train traffic.

BNSF bought the line back due to booming west coast port traffic and reactivated the yard. Residents used to a "dead" yard now were faced with growing train traffic, idling pusher engines in the yard 24x7 and complained.

The City of Auburn tried to negotiate with BNSF but failed when BNSF said it was too restrictive and would impact operations. So the City went to court and lost big time.

The court ruled that local and state regs could not over rule federal law on railroad regulation.

[finehoe]

In campaign materials, Mayfield touts herself as a conservative Republican and, in addition to being staunchly pro-gun, anti-abortion and vowing to "fight to promote morality and conservative family values" (constituents might wonder if that encompasses alcohol distribution and casino gambling), she expresses that brand of Tea Party conservatism that preaches keeping big-government off the backs of private industry.

http://vb32963online.com/STORIES%202014/APRIL%202014/VB32963_Who_Really_Owns_Debbie_Mayfield_Issue16_041714.html

[spuwho]

In campaign materials, Mayfield touts herself as a conservative Republican and, in addition to being staunchly pro-gun, anti-abortion and vowing to "fight to promote morality and conservative family values" (constituents might wonder if that encompasses alcohol distribution and casino gambling), she expresses that brand of Tea Party conservatism that preaches keeping big-government off the backs of private industry.

http://vb32963online.com/STORIES%202014/APRIL%202014/VB32963_Who_Really_Owns_Debbie_Mayfield_Issue16_041714.html

Obviously except when campaign cash is involved.

A lot of local politicians got caught off guard by the backlash in the TC.

Politically speaking, this bill of hers is more of a "get off of her back" moment.

[acme54321]

Interesting they chose a picture of the crossing in downtown Melbourne.  It's not on the treasure coast and everyone in Melbourne seems to have other stuff to do than worry about trains.  In fact that I think the county commission voted to support AAF.

[thelakelander]

Yeah, Brevard County wants it...

spacecoasttpo.com/tag/all-aboard-florida/

[spuwho]

The SunSentinel prints an editorial on proposed legislation. Calls it "off track".

http://www.sun-sentinel.com/opinion/editorials/fl-editorial-high-speed-rail-20170324-story.html

Lawmakers' high-speed rail proposal off track | Editorial

On first blush, a proposal for the state to regulate high-speed rail sounds reasonable, given that this is a new type of transportation service about to launch in Florida. And though full of promise, All Aboard Florida's new Brightline service also carries new public costs as well as disruptions for communities that will never see a station, though they will see 32 new trains zipping by every day.

On closer examination, however, the proposal by lawmakers from Florida's Treasure Coast — the three counties north of Palm Beach County — appears less focused on ensuring public safety and taxpayer protections than on placing barriers before a passenger rail service expected to launch its first phase by summer's end.

And though you can understand her viewpoint, the pitch by Republican Sen. Debbie Mayfield of Vero Beach would be more convincing if her region hadn't been fighting All Aboard Florida from the start.

First, an update. All Aboard Florida expects to open its Fort Lauderdale station off Broward Boulevard by month's end, and its West Palm Beach station a few days later. It plans to test its Brightline trains — with names like Bright Pink and Bright Green — in July, with service to Miami in late August. The line is expected to officially open in September. It will take an hour to travel from end to end.

South Florida drivers well know the road detours faced as the company doubled-tracked its corridor, upgraded signal technology and installed medians and "quad" gates that will keep crazy drivers from trying to squeeze between gates to beat a train. The good news is these new "quiet zone" safety features mean that trains — including the Florida East Coast Railway (FEC) freight trains that will continue using the tracks, too — will no longer have to sound those new louder-sounding horns at every crossing.

The way things have long stood, FEC has covered the cost of maintaining its railroad and switches, but charges cities and counties to maintain the roadway, traffic control devices and signal maintenance. It figures it wouldn't need those gates and signals if communities didn't want their public roads to cross the railroad's tracks.

But to make inter-city service happen with a speed unseen in the public sector — and recognizing the unexpected costs communities would bear — All Aboard Florida agreed to fund the crossing improvements itself, at no small cost.

Going forward, however, it expects the public to pay for maintenance, as always. And the cost is likely to be higher, since everything's been dialed up a notch.

This is where Mayfield sees an opening she says she's using to protect taxpayers. She argues that cities and counties have an agreement with FEC, not All Aboard Florida, a new company using the tracks.

"All Aboard Florida doesn't own the property. They've been granted an easement by FEC to run their train. So shifting the cost of maintenance for (these upgrades) is a nonstarter," she said.

Michael Reininger, the former CEO of All Aboard Florida who is now executive director of its parent company, Florida East Coast Industries (FECI), says the senator doesn't understand the details or the law.

"We didn't arrange to use the tracks," he said. "We didn't the rent the tracks. We own them. Both companies share ownership of the corridor and the assets on the corridor."

Now, a little background. In 2007, FECR was purchased by investors in funds managed by Fortress Investment Group. The company was taken private and the assets were divided into two companies, FECR and FECI.

When we met with Reininger this week, he said the two companies jointly own the rail corridor. But in response to a follow-up question, the company's legal counsel said the property is owned by FECR and Brightline, the name under which All Aboard Florida, a separate company, does business. The railroad declined to let us see the details of the agreement that divvied up the assets.

Forgive us for making your eyes glaze over, but these details lie at the heart of Mayfield's argument. As we tried to sort this out Friday, a spokeswoman said FECI is the parent company of All Aboard Florida, which has ownership of the corridor.

Absent more detail, we can't offer an opinion on Mayfield's overarching point on ownership. But it does appear two railroad companies own the tracks, and that while the improvements were made to accommodate high speed rail, they also benefit freight rail and our community. Given that they benefit freight rail — improvements traditionally paid by the public — her argument might be splitting hairs.

Mayfield wants more, too.

Her bill also would:

• Require high-speed railroad companies to construct and maintain fences along the corridor and install the latest safety technology recommended by the Federal Railroad Administration.

Reininger says Brightline works with communities that want fencing. And given that safety is paramount to the project's success, we believe him. He also says the company has done everything recommended by the Florida Railroad Administration (FRA,) which has assessed every crossing. He chafes at the idea of adding a new layer of state regulations, and notes it's required of no other railroad in any other state.

• Require railroad inspectors to post their reports on the Florida Department of Transportation's website. Reininger balks at putting accident reports on FDOT's website, just as he says you wouldn't want your driving records publicly posted, either. On this point, we disagree. It's tough to get information from the FRA. Why not make safety and accident information more transparent?

• Change the alignment of roads that approach tracks at a skew, which Mayfield says is a best-practice recommendation of the FRA. But can you imagine having to reconfigure roads that don't meet tracks at 90 degree angles? On this point, Mayfield sounds obstructionist.

All Aboard Florida officials say the senator is targeting their company, which on its face is unconstitutional. Mayfield says she references Brightline only because it's the first — and so far, the only — high-speed rail business in Florida, though others will surely follow.

If her bill passes, and it unanimously passed the Senate Transportation Committee two weeks ago, Reininger says it will greatly increase the time and costs of phase 2, which extends the line to a station under construction at Orlando International Airport.

And because pass-along costs would be so high, it also puts at risk regional dreams of one day using the corridor for commuter rail, says Greg Stuart, head of the Metropolitan Planning Organization in Broward.

You've got to give it to Mayfield. She's a smart and savvy senator who represents her region well. But when it comes to representing Florida, her bill falls short.

From what we know about the big picture, All Aboard Florida has gone above and beyond in doing what it said it would do. And since railroads have always been regulated by the feds, we don't see a compelling case for tough new state regulations.

While Mayfield's bill has some things to like, we believe it could derail an exciting new chapter in transportation. We encourage its defeat.

[avonjax]

I thought Repubs were against regulations. Guess I was wrong....
Oh wait they are for regulations when it hampers the things they dislike....
How silly of me....

[Jim]

I thought Repubs were against regulations. Guess I was wrong....
Oh wait they are for regulations when it hampers the things they dislike....
How silly of me....

Pretty much this.

[Kerry]

I thought Repubs were against regulations. Guess I was wrong....
Oh wait they are for regulations when it hampers the things they dislike....
How silly of me....

Not to get political anymore than this already has, but your first statement is because you have been conditioned by your choice of media to believe that because the people you are following needed a bogeyman to further their own agenda.  Many Republicans are just as pro-government regulation as the average Democrat.  The rest of your comments go both ways across both parties.

Now back to the train....

And though full of promise, All Aboard Florida's new Brightline service also carries new public costs as well as disruptions for communities that will never see a station, though they will see 32 new trains zipping by every day.

Whose fault is this?  I am sure Brightline would have liked to have a stop in Vero Beach but Vero is leading the charge against rail.  Vero doesn't have a station by their own choice.

[finehoe]

Not to get political anymore than this already has, but your first statement is because you have been conditioned by your choice of media to believe that because the people you are following needed a bogeyman to further their own agenda.  Many Republicans are just as pro-government regulation as the average Democrat.  The rest of your comments go both ways across both parties.

It's certainly true that Republicans are just as pro-government regulation as the some Democrats, but the difference is the constant harping on government regulations that comes from Republicans that you don't hear from Democrats.  The GOP platform says

Regulation: The Quiet Tyranny
Over-regulation is the quiet tyranny of the "Nanny State." The ability of the American people to govern themselves has been undermined by a vast array of agencies with sweeping power to regulate every aspect of American life.

Pointing out the hypocrisy of this has nothing to do with being "conditioned by your choice of media to believe that because the people you are following needed a bogeyman to further their own agenda".

[Kerry]

I am sure if I read the Democrat platform there would be something in there about freedom and liberty.

[thelakelander]

Whose fault is this?  I am sure Brightline would have liked to have a stop in Vero Beach but Vero is leading the charge against rail.  Vero doesn't have a station by their own choice.

The Treasure Coast was one of the biggest proponent for intercity rail on the FEC before Brightline came online.  At the time, Amtrak was looking at a new route between Jax and Miami. That project would have included stations in Vero Beach, Fort Pierce and Stuart.



Brightline isn't stopping there initially but it doesn't mean that a stop can't happen in the future (ex. Brevard wasn't getting one initially and now an additional stop there is being looked at).  IMO, this whole thing has NIMBY all over it.  If they had a stop or two, they'd be just excited as they were about Amtrak being subsidized to the tune of millions to provide a lower quality intercity service along this corridor.