High-speed Rail in America: an Evaluation of the Regulatory, Real Property, and Environmental Obstacles a Project Will Encounter

• Publication year: 2011

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 13, ISSUE 2: SPRING 2012

HIGH-SPEED RAIL IN AMERICA: AN EVALUATION OF THE REGULATORY, REAL PROPERTY, AND ENVIRONMENTAL OBSTACLES A PROJECT WILL ENCOUNTER

Darren A. Prum* & Sarah L. Catz**

In 2009, President Barack Obama allocated $8 billion in stimulus funding for high-speed rail projects across the United States. One year later, in 2010, an additional $2.5 billion was distributed to corridors with High-Speed Rail Projects. Even though the most recent congressional budget eliminated high-speed rail funding, many corridors are working diligently to break ground by the end of 2012. Before a high-speed rail project can be fully implemented there are many legal and environmental issues and regulations to examine. This paper conducts a complete analysis of those issues and regulations and suggests how to apply them to a successful high-speed rail project.

1. INTRODUCTION

   What we need, then, is a smart transportation system equal to the needs of the 21st century. A system that reduces travel times and increases mobility. A system that reduces congestion and boosts productivity. A system that reduces destructive emissions and creates jobs. What we're talking about is a vision for high-speed rail in America.1

   With the foregoing and other accompanying statements on April 16, 2009, President Barack Obama explained his desire to bring the nation a new transportation infrastructure that uses a high-speed rail (“HSR”) system to connect the population centers

   
   

   
   

   * Assistant Professor, The Florida State University. The authors wish to thank Matthew Wright at UNLV’s Law Library and Adam Brown for their assistance.

   ** Director, Center for Urban Infrastructure; Research Associate, Institute of Transportation Studies, University of California, Irvine.

   1. President Barack Obama, Remarks by the President and Vice President on A

      Vision for High Speed Rail in America (Apr. 16, 2009), available at

      http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-and- the-Vice-President-on-High-Speed-Rail/.

      247

      
      

      across the country.2 Though the Obama Administration made the most recent push, the genesis of the modern approach actually began to occur when Congress authorized appropriations for five HSR corridors in 19913 followed by appropriations for another six in 1998.4

      The 111th Congress decided to further fund these initiatives with the Passenger Rail Investment and Improvement Act of 2008 (“PRIIA”),5 followed by the American Recovery and Reinvestment Act of 2009 (“Stimulus Bill”).6 PRIIA directed the Department of Transportation (“DOT”) to develop and award three new competitive grants for HSR and intercity passenger rail capital improvements,7 while the Stimulus Bill provided the funding for these programs with $8 billion.8 Following these actions, Congress provided an additional $2.5 billion in funding when it passed the DOT Appropriations Act in December 2009.9

      Most recently, the Obama Administration announced its intentions to spend an additional $53 billion over the following six years to advance the national construction of a HSR network

      
      

   2. See Michael D. Shear, Obama Pushes Vision for High-Speed Rail, THE WASHINGTON POST (Apr. 16, 2009, 10:31 AM), http://voices.

      washingtonpost.com/44/2009/ 04/16/by_michael_d_shear_declaring.html.

   3. See Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. No. 102-240, § 1003, 105 Stat. 1914, 1918–20.

   4. Transportation Equity Act for the 21st Century (TEA-21), Pub. L. No. 105-

      178, § 1101, 112 Stat. 107, 111–14 (1998). According to one report, Congress began investigating high-speed ground transportation as an alternative mode in 1965 when it authorized and funded the Office of High Speed Ground Transportation within the Federal Railroad Administration to develop and demonstrate these cutting edge technologies across the nation. See FED. R.R. ADMIN., HIGH-SPEED GROUND TRANSPORTATION FOR AMERICA 1-1 (1997),

      available at http://www.fra.dot.gov/Downloads/RRDev/cfs0997all2.pdf.

   5. Passenger Rail Investment and Improvement Act of 2008 (PRIIA), Pub. L. No. 110-432, 122 Stat. 4848.

   6. American Recovery and Reinvestment Act of 2009 (Stimulus Bill), Pub. L. No. 111-5, 123 Stat. 115.

   7. PRIIA § 501.

   8. Stimulus Bill, Pub. L. No. 111-5, 123 Stat. 115.

   9. Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, 123 Stat. 524.

      
      

      across the country.10 However, governors in states like Florida, Ohio, and Wisconsin recently returned the federal money citing the lack of need for the HSR project in their jurisdictions or citing other concerns that at some point local funding will need to subsidize the construction overruns or the cost of operations.11 In response, the Obama Administration simply reallocated the rejected funding distributions to other jurisdictions while proceeding with the national HSR network plan.12

      With the government allocating so many resources monetarily and labor-wise to creating an HSR infrastructure across the nation, achieving this goal will undoubtedly bring numerous other obstacles. While HSR seems to present a situation that would cause the legal community to face new challenges, in many respects it brings forward decisions settled long ago when our nation first began using railways for transportation purposes.13 It also reignites jurisdictional issues between federal and state governance on a variety of subjects like real property and environmental law.14

      Since many of the critics of HSR focus exclusively on the costs associated with implementing and operating a system, this examination looks to put those controversial issues aside and delve into the other obstacles such a project must resolve in order to succeed. As the main originator for public policy, the federal government plays a vital role in the success or failure of an HSR project through its regulatory and funding mechanisms. Moreover, real property doctrines and land use guidelines will influence where and how HSR will occur, since this type of project is land

      
      

   10. Press Release, Office of the Vice President, Vice President Biden Announces Six Year Plan to Build National High-Speed Rail Network (Feb. 8, 2011), available at http://www.whitehouse.gov/the-press-office/2011/02/08/ vice-president-biden-announces-six-year-plan-build-national-high-speed-r.

   11. See Joan Lowy & Kevin Freking, Wisconsin High-Speed Rail Money Goes Elsewhere: Republican Governor Rejects Federal Funds, THE HUFFINGTON POST (Dec. 9, 2010, 4:22 PM), http://www.huffingtonpost.com/2010/12/09/

       wisconsin-highspeed-rail-_n_794721.html.

   12. Id.

   13. See infra Part IV.

   14. See infra Parts IV, V.

       
       

       intensive.15 Likewise, the environmental impacts of an HSR project must receive consideration due to the scale and influential effect such an undertaking places on its surroundings.

       To this end, Part II focuses on how the federal government defines HSR. Part III looks into the different agencies and departments involved at the federal government level and examines their role in the creation and operation of an HSR network in the country. Part IV investigates the unique real property issues facing an HSR project like right of way and land use regulations, while Part V tackles the environmental aspects and requirements. Finally, Part VI concludes by analyzing the public policy issues surrounding HSR and the components needed to move forward with such an endeavor.

       
       

2. HIGH-SPEED RAIL DEFINITIONS

   When considering the different technologies, one of the first steps should include a determination as to what qualifies as HSR. Currently, the two types of modern high-speed trains employ either a magnetic levitation (“maglev”) or a steel-on-wheel technology to achieve high velocities.16

   
   

   1. Maglev v. Steel-on-Wheel Technology

      The steel-on-wheel system utilizes steel wheels and track with electric motors for propulsion.17 It requires a dedicated track with straight or minimal curve distances to achieve the maximum speeds; however, it can also operate at much slower speeds when using conventional rail systems.18

      
      

      1. See infra Part IV.

      2. Austl. Acad. of Sci., Looking Down the Track at Very Fast Trains, NOVA: SC. NEWS, http://www.science.org.au/nova/025/025print.htm (last updated Jan. 2002).

      3. Id.

      4. Id. Proponents of this technology point out the impressive operational and safety record of these trains over many years as well as the ability to grow the

         reach of these trains on an as-needed basis. See id. Because the trains can

         operate on both existing and dedicated tracks, an operator can expand in a piecemeal fashion over time, which allows for immediate implementation without the need for complete financing. See id. Accordingly, many countries

         
         

         In contrast, the much newer technology of maglev produces a train that seems to float on a cushion of air rather than steel wheels and a track.19 This system uses electromagnets and a guideway to levitate and propel the train.20 As a result, the train no longer needs an onboard motor because the propulsion comes from the distinctive guideway needing its own dedicated track to operate.21

         To make the definition clearer, Congress explained that HSR in the United States includes:

         [A]ll forms of nonhighway ground transportation that run on rails or electromagnetic guideways providing transportation service which is—

         1. reasonably expected to reach sustained speeds of more than 125 miles per hour; and

         2. made available to members of the general public as passengers, but does not include rapid transit operations within an urban area that are not connected to the general rail system of transportation 22

            Based on this broad definition, Congress provided a flexible framework to allow all those involved in bringing HSR across the country the ability to select the technology that best serves their needs.

            
            

   2. DOT Definitions

   However, HSR also operates within a more expansive context since it can sometimes describe a larger transportation system. With a few exceptions like the rail route from Washington, D.C., to Boston, Massachusetts, Congress additionally allowed the

   
   

   around the world already use them everyday on both...