BRIEFING
Session Spotlight
All Aboard
Florida
Facing a
Rough Track
Ahead?
MARCH 2017
A
ll Aboard Florida (AAF) is currently
developing an express train service,
called “Brightline,” which will provide
express passenger rail service utilizing its
perpetual passenger rail easement within
the Florida East Coast Railway (FEC)
rail corridor between Cocoa and Miami.
AAF also plans to construct new track
along SR 528 to connect Cocoa and Orlando utilizing various easements and
land purchases. With top speeds ranging
from 79 mph to 125 mph, and a minimal
number of planned stops between Miami and Orlando, Brightline will offer
passengers an opportunity to travel from
Orlando to Miami in roughly an hour.
Unlike other high-speed rail projects, this
project does not require public grants or
subsidies. Ridership risk is borne by the
private sector. Funding for AAF comes
from the issuance of tax-exempt private
activity bonds, which are backed by project revenues. Should the project default,
only those who invested in the bonds
are on the hook, not the taxpayers. Still,
there are some who believe the project
will not be successful unless public subsidies, such as Federal Railroad Administration loans, are made available.
Bill(s) Addressed
HB 269 / SB386
A recent policy brief by the James Madison Institute ( JMI)1 expressed optimism
that, because of AAF’s sensible business
plan, “this project has a much greater
likelihood of success than any other U.S.
passenger rail project in recent history.”
1
1
Robert W. Poole, Jr., “Why a High-Speed
Rail Skeptic Likes All Aboard Florida,”
James Madison Institute, Policy Brief, December 2016.
JMI concluded that “All Aboard Florida
may in fact be a niche market where
higher speed rail can make business
sense without taxpayer support.”
Scheduled to begin service from Miami
to Ft. Lauderdale and West Palm Beach
this summer, Brightline has created thousands of new jobs and spurred economic
development in South Florida. When
completed, Brightline will provide a
more affordable connection between
Central and South Florida and relieve
traffic congestion on Florida roadways.
Although Brightline has gained wide
support in South Florida, the minimal
number of planned stops and purported
safety concerns have raised concerns
among legislators in the Treasure Coast
region of the state.
These concerns have prompted the
proposed Florida High-Speed Passenger Rail Safety Act (HB 269 / SB 386)
which, if passed, will give state and local governments additional authority to
regulate intrastate “high-speed” passenger rail systems in Florida. In this paper,
Florida TaxWatch examines the impacts
of the proposed Act on intercity passenger rail service.
Authority
Railroads currently engaged in transportation-related activities are subject
to federal laws governing the operation
and safety of railroads. The Federal Railroad Administration (FRA) is primarily
responsible for rail safety, including the
governance of speed, routing of hazard-
SESSION SPOTLIGHT
ous materials, and the implementation of new technologies. The
Interstate Commerce Commission
Termination Act of 1995 and the
Federal Railroad Safety Act of 1970
give the FRA and the Surface Transportation Board exclusive jurisdiction over railroad safety and operations.
Federal regulations currently define
“high-speed rail” as rail service that
can be reasonably expected to reach
sustained speeds of more than 125
mph.2 Under current Florida law,
high-speed rail refers to any highspeed fixed guideway system for
transporting people or goods which
is reasonably expected to reach
speeds of at least 110 mph.3 By lowering the speed threshold to 80 mph,
the Florida High-Speed Passenger
Rail Safety Act will, if passed, give
state and local governments additional authority to regulate Brightline and other “high-speed” rail companies in Florida.
The Florida High-Speed Passenger
Rail Safety Act applies only to “intrastate” high-speed passenger rail systems. Ostensibly, passenger rail systems that transport people or goods
across state lines, and that could reasonably be expected to reach speeds
of at least 80 mph, would pose safety
risks that are consistent with the
safety risks posed by high-speed passenger rail systems that transport
people or goods only within Florida.
The reason for the carve-out or exemption for interstate high-speed
passenger rail systems is unclear.
What is clear, however, is that highspeed passenger rail systems that
2
have the capability to exceed 80 mph
and that provide interstate passenger
rail service will be subject to a different (and less restrictive) set of regulations than will AAF.
Florida TaxWatch was unable to
identify any “intrastate” high-speed
passenger rail system other than the
Brightline system operated by AAF.
If true, the Florida High-Speed Passenger Rail Safety Act could be
viewed as a “bill of attainder,” a legal
term for when a person or group of
persons is singled out for punishment without benefit of a trial. Bills
of attainder are expressly prohibited
by both the U.S. and State of Florida
Constitution. Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act gives property owners
a process to seek relief when their
property is unfairly affected by a government action.4 Under this Act, a
claim exists if a governmental entity
inordinately burdens an existing use
of real property or a vested right to a
specific use of real property.5
The Florida Department of Transportation (FDOT) will be assigned
additional regulatory duties and responsibilities under the Act. FDOT
will be responsible for conducting
field surveys of the rail corridor to
determine where fencing required
by the Act is necessary. FDOT, in
concert with the Florida Division
of Emergency Management, will be
responsible for providing emergency
response training for incidents involving hazardous materials to local
officials.
2
U.S. Code Title 49, section 26105.
4
Section 70.001, Florida Statutes.
3
Section 341.8203, Florida Statutes.
5
Ibid.
Costs
With top speeds ranging from 79
mph to 125 mph, and a minimal
number of planned stops between
Miami and Orlando, Brightline will
require additional safety measures
at grade crossings throughout South
Florida and the Treasure Coast,
including the installation of positive train control and remote health
monitoring technology. AAF has included in its construction plans new
signal systems, upgraded crossings,
double tracking and other improvements necessary to ensure the safe
operation of Brightline.6
Under existing railroad crossing
agreements, local governments along
the rail lines usually have the responsibility for crossing signal installation, track bed and roadway surface
improvements, pedestrian gates
and sidewalks, and crossing maintenance costs.7 Under the Florida
High-Speed Passenger Rail Safety
Act, however, AAF would be responsible for paying all of these costs.
AAF would also be responsible for
the costs to construct and maintain
fencing on both sides of its tracks,
as required by the Act. A 2008 FRA
fact sheet found the widespread installation of fences along railroad
right-of-way to be impractical and
ineffective.8
The government sector will also incur costs under the Act. FDOT will
incur costs (albeit indeterminate)
associated with conducting public
6
Committee on Transportation, “Bill
Analysis and Fiscal Impact Statement,
CS/SB 386,” Florida Senate, March 15,
2017.
7
Ibid.
8
Federal Railroad Administration,
“Railroad Trespassing Fact Sheet,”
December, 2008.
SESSION SPOTLIGHT
meetings, field surveys to determine
the need for fencing, providing the required hazardous materials training,
and other costs associated with rule
promulgation.
Conclusions
Despite strong public support for improved rail service, the expansion of
intercity express passenger rail service
will be limited by passage of the Florida
High-Speed Passenger Rail Safety Act,
which will increase costs and make the
operations of Brightline more difficult.
By lowering the speed threshold from
125 mph to 80 mph, the Act will add a
new layer of state regulations that will
drive up the costs of Brightline and possibly delay passenger service from West
Palm Beach to Orlando. AAF is currently regulated by the FRA, which is
responsible for protecting public safety.
Given the current level of federal oversight and regulation, the imposition of
new state regulations may be viewed
as duplicative and as an overreach by
the State. The Act also transfers costs
that have historically been the responsibility of local governments, such as
the costs for upgrades in crossings and
maintenance, to the railroad company.
Most puzzling is the limitation of
the Act’s requirements to “intrastate”
high-speed passenger rail systems. By
exempting interstate passenger rail systems, the only high-speed passenger
rail system subject to the new requirements of the Act is the passenger rail
system operated by All Aboard Florida.
Exempting passenger trains capable of
reaching speeds in excess of 80 mph
from the requirements of the Act simply because the railroad company provides service to another state serves no
apparent public safety benefit.
3
Under the guise of protecting public
safety, the Florida High-Speed Passenger Rail Safety Act creates a new layer
of state regulation for intercity express
passenger rail service, and applies those
regulations to the only rail service that
meets the narrow definitions contained
in the Act—the passenger rail service
operated by All Aboard Florida. If
passed, the Act will not only make the
operation of Brightline more expensive
and more difficult, it will make other
passenger rail service providers think
twice before expanding intercity passenger rail service to other parts of the
state.
The provisions in the Act that require
AAF to assume responsibility and costs
for maintaining grade crossings, while
other passenger rail service providers
are not required to do so, raises personal property rights issues. Shifting this
responsibility to AAF could be viewed
as a “taking”9 and as the basis for legal
action under the Bert J. Harris, Jr., Private Property Rights Protection Act.
The provisions contained in the Act pit
the interests of one region of the state
against the interests of the rest of the
state. When balancing the parochial
interests of the Treasure Coast region
against the interests of the rest of the
state, the interests of the state should
prevail and control. The All Aboard
Florida project is filling a public need
using private funds and without asking
for public subsidies. Florida TaxWatch
believes such enterprises should be
encouraged rather than discouraged
through additional regulation.
9
A regulatory taking can arise although
the government actions do not encroach
upon or occupy the property but still
affect and limit its use to such an extent
that a taking occurs. Regulatory takings
are based on the principle that while
property may be regulated to a certain
extent, if a regulation goes too far it will
be recognized as a taking.
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Copyright © March 2017, Florida
TaxWatch Research Institute, Inc.
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PUBLISHER’S NOTE: This Session Spotlight
was written in response to a request from
Representative Mike Miller for Florida
TaxWatch to offer a perspective on the
proposed legislation. This Briefing is not
an endorsement of any specific piece of
legislation.
SESSION SPOTLIGHT