The proposed Florida High-Speed Passenger Rail Safety Act would give the Florida Department of Transportation the authority to regulate railroad companies, establish minimum safety standards for high-speed passenger rail and pay for costs associated with rail corridor upgrades and safety measures.
September 2nd, 2016
Indian River County (the "County") has reviewed the materials submitted on behalf of All Aboard Florida ("AAF") by Amee Foster Wheeler dated June 10, 2016 (the "Response"), in response to the request for additional information made by the U.S. Army Corps of Engineers (the "ACOE" or the "Corps") with respect to the proposed AAF project (the "Project"). Having done so, the County is compelled to point out some of the more glaring deficiencies in the Response and is requesting a re-review of the permit application. As discussed in detail below, the Response is deficient as it relates to: (i) the ACOE's obligation to perform a public interest evaluation of the AAF permit application that weighs the foreseeable detriments of the Project informed by a proper environmental review under the National Environmental Policy Act ("NEPA"); and (ii) the impacts of the Project on endangered and threatened species, wetlands and aquatic resources.
August 17th, 2016
This conclusion, based on information and documents obtained by Martin and Indian River County attorneys in lawsuits to invalidate the federal government's decision to approve tax-exempt private activity (PAB) bond financing for AAF, led Judge Christopher R. Cooper to reconsider his earlier decision that the Counties will not be harmed if bond financing is not available to AAF. Without the PAB financing, Judge Cooper now believes it is likely that Phase II of the AAF project (West Palm Beach to Orlando) might not be constructed. His 39-page Memorandum Opinion acknowledges that the Counties have presented sufficient evidence to establish that construction and operation of the AAF project will cause them to suffer a variety of environmental harm to their residents. For this reason, the Judge has ordered the lawsuits to proceed.
May 13th, 2016
On April 22, 2016 the Mayor of the town of St. Lucie Village wrote a letter to several officials expressing his concerns regarding All Aboard Florida's proposed higher-speed passenger rail project. On May 11, 2016 Indian River County Administrator Joseph A. Baird requested the responses from those officials.
May 12th, 2016
On behalf of Martin County, Florida, the following comments have been prepared in response to the U.S. Army Corps of Engineers ("Corps" or "ACOE") Public Notice dated April 11, 2016, regarding the proposed high speed rail project ("Project") between Orlando and Miami, which traverses, but does not stop in, Martin County. This letter is intended to supplement the comments and formal request for hearing previously provided to the corps in the County's May 2, 2016, comment letter from Michael D. Durham, Martin County Attorney.
February 9th, 2016
The purpose of this Memorandum is fourfold: 1) to explain the history of the AAF Project and the County’s efforts to ensure the safety, health, and welfare of its citizens in light of the Project; 2) to summarize the current litigation and agency coordination efforts with respect to the Project; 3) to identify the current budget status; 4) to outline potential avenues for litigation and/or agency coordination and the corresponding budgetary impacts of such efforts. Staff seeks Board direction on current and potential litigation and administrative engagement efforts, and Board approval for the expenditure of funds related to those efforts.
September 24th, 2015
Martin County, Florida, respectfully submits these comments on the Federal Railroad Administration’s August 2015 final environmental impact statement for the proposed All Aboard Florida intercity passenger rail project.
The FEIS leaves the distinct impression that the FRA has made no attempt to understand, let alone address, the Project’s many significant flaws. In some cases, the FEIS flatly ignores concerns that have been raised about the Project, and in others it improperly assumes them away.
September 24th, 2015
Indian River County has reviewed the Final Environmental Impact Statement and Section 4 Determination with respect to the All Aboard Florida Project issued by the Federal Railroad Administration in August 2015. The County was disappointed to see that many of the flaws that it, and other commenters, pointed out with respect to the draft EIS were not corrected in the FEIS, and to learn that FRA has now submitted to the Florida State Historic Preservation Office a Determination of Effects under Section 106 of the National Historic Preservation Act without first satisfying the procedural and substantive requirements of that statute.
August 21st, 2015
On August 4, 2015, hours before the Florida Development Financial Corporation’s decision to issue the tax free bonds regarding the All Aboard Florida (AAF) passenger rail project, the Federal Railroad Administration (FRA) issued its Final Environmental Impact Statement (FEIS). However, Martin County believes the claim that the document is “final” is not actually true in several respects and needs public examination.
The FEIS is part of the National Environmental Policy Act (NEPA) process which requires that federal agencies assess the environmental, social and economic impacts of a proposed action or project like AAF. It is supposed to be a final, full disclosure document that details the process through which a transportation project was developed, including full consideration of a range of alternative routes, analysis of potential impacts resulting from the alternatives, and demonstrating compliance with other applicable environmental laws and executive orders.
For more resources on Martin County’s fight against All Aboard Florida, visit martin.fl.us/hottopics.
March 30th, 2015
The plaintiffs are Indian River County, Indian River County Emergency Services District and Old Vero Ice Age Sites Committee, Inc. Defendant is Peter M. Rogoff, Undersecretary of Transportation for Policy, US Dept. of Transportation. Indian River County filed the attached complaint and summons in the United States District Court for the District of Columbia on March 31, 2015 challenging the United States Department of Transportation's approval of the allocation of $1,750,000,000 in private activity bonds to finance the proposed All Aboard Florida project.
Indian River County, along with the Indian River County Emergency Services District and the Old Vero Ice Age Sites Committee, Inc., are seeking an injunction to require the United States Department of Transportation to fully comply with the National Environmental Policy Act, the National Historic Preservation Act and Section 4(f) of the Department of Transportation Act of 1966 and prevent the issuance of such bonds for the proposed All Aboard Florida project until these statutes have been properly followed.
April 20th, 2015
Thomas Hewitt, V. Michael Ferdinandi and Martin County, Florida,,Plaintiffs, vs. United States Department of Transportation, Anthony Foxx, Secretary of the United States Department of Transportation and Peter M. Rogoff, Undersecretary of the United States Department of Transportation, Defendants.
Summary: This lawsuit was filed on April 20, 2015 in the United States District Court for the District of Columbia. Plaintiffs, Thomas Hewitt and V. Michael Ferdinandi are residents of Palm Beach County, Florida. Plaintiffs along with Martin County, Florida dispute the U.S. Dept. of Transportation's (USDOT) December 22, 2014 approval to allocate $1.7 billion in private equity bonds to help finance All Aboard Florida's (AAF) high-speed passenger train proposal. The lawsuit challenges the USDOT on two main grounds: that the tax-exempt activity bonds were illegally granted before the completion of a final environmental impact statement process, and that AAF's proposed project does not qualify for private activity bonds according to Florida law. The court is being asked to nullify USDOT's approval of the bonds and permanently block the USDOT from approving private-activity bonds for AAF.
All Aboard Florida's project proposes to send 32 high-speed (80-110 mph) passenger trains every day between Miami and Orlando's airport. The trains would mostly travel along Florida East Coast Railway's existing tracks and right of way on the east coast of Florida.
This lawsuit follows a similar one filed on March 31, 2015 by Indian River County, Florida in the same federal district court. However, this is the first time that Palm Beach County residents have challenged AAF's high-speed train proposal. In discussing his justification for filing this lawsuit, Plaintiff Ferdinandi said: "For us, it a quality-of-life issue as well as a safety issue."
April 2015
- Martin County’s Motion for Preliminary Injunction should be denied because DOT’s allocation of $1.7 billion in private activity bonds was legally proper. 26 U.S.C. Section 142(m)(1)(A) provides that private activity bonds may be allocated for “qualified highway or surface freight transfer facilities” which includes “any surface transportation project which receives Federal assistance under the same statute.
- Martin County has failed to demonstrate standing before this Court for any of their claims because the injuries they allege, which relate to the operation of the All Aboard Florida project, are not fairly traceable to the action of the DOT in awarding AAF $1.7 billion in private activity bonds.
- Martin County’s claims lack merit because the AAF project was eligible for $1.7 billion in private activity bonds because the AAF project is a “surface transportation project” that receives Federal assistance under 26 U.S.C. 142(m)(1)(a). The federal agency’s interpretation of this statute is consistent with its plain language.
- Martin County’s NEPA claim is also without merit because NEPA does not apply to DOT’s awarding private activity bonds to AAF. All of Martin County’s alleged harms relate to AAF’s operation of their proposed rail line when it becomes operational.
- Lastly, the balance of harms and the public interest favor the federal government because, although a revocation of the private activity bonds allocation would not stop the project from going forward, it would make the project more expensive, in direct contravention of the purposes of 26 U.S.C. 142.
- For these reasons Martin County’s Motion for Preliminary Injunction should be denied.
April 2015
- Despite the fact that All Aboard Florida would significantly improve the railway by enhancing the safety of existing tracks, grade crossings and by installing state-of-the-art technology, Martin County does not want AAF’s project to go forward and is trying to make it more expensive to build, in the hope that doing so will prevent AAF altogether.
- Martin County lacks standing to challenge the federal DOT’s exercise of tax exemption authority in giving $1.7 billion in private activity bonds to AAF. Martin County lacks constitutional standing because the injuries they claim would not result from any US DOT action, but instead from AFF’s independent decision to restore passenger rail service. Consequently, Martin County’s alleged injuries are not “fairly traceable” to the action taken by the federal government. Further, Martin County’s alleged injuries would not be redressed by the Court awarding a judgment in its favor as AAF is committed to move forward with its project, even if it is ultimately unable to sell tax-exempt bonds.
- Martin County also lacks standing to challenge the DOT’s decision to issue $1.7 billion in tax-exempt private activity bonds to AAF because Martin County is not within the “zone of interests” protected by the governing statute, 26 U.S.C. 142. Courts routinely reject attempts by plaintiffs to police another party’s tax exemption and they have made clear that a plaintiff lacks standing under the “zone of interests” test when its claims are more likely to frustrate than to further statutory objectives.
- Even if Martin County had standing, they would not succeed on the merits of this case. With respect to their claim regarding the project’s eligibility to receive a tax exemption allocation under 26 U.S.C 142(a)(15) and 142(m)(1)(A), Martin County overlooks that the terms of the statute fully support the federal agency’s interpretation. The plain language of the statute authorizes the DOT Secretary to allocate a tax exemption to “any surface transportation project which receives Federal assistance under 26 U.S.C. 142(m). AAF qualifies under this statutory standard because it is a surface transportation project that has received a significant amount of Title 23 funding for railway-highway crossing improvements. Martin County’s attempt to rely on snippets from the legislative history to prove otherwise is unhelpful to their cause.
- Martin County’s claim under the National Environmental Policy Act (NEPA) also fails as federal agencies are only required to conduct environmental impact analyses for “major federal actions” – federal actions with affects that are major and that are subject to federal control and responsibility. 40 C.F.R. 1508.18. The only federal action here is the DOT’s decision to give tax-exempt bonds that would be authorized by a quasi-state agency, Florida Development Finance Corporation. AAF’s action to build this project does not give the federal DOT any control or responsibility over the environmental aspects of the project; nor can the DOT prevent the environmental effects which Martin County claims. And, DOT’s exercise of its tax-exemption authority is not a “major federal action” for which NEPA is triggered.
- Further, Martin County cannot satisfy any of the remaining requirements for a preliminary injunction. It is unable to show irreparable harm. And AAF will continue to move forward with the project even if tax-exempt bonds are not issued. Thus, an injunction will not prevent any of Martin County’s alleged harms from taking place. Moreover, the speculative harms complained of would not amount to the kind of irreparable harm that could justify an injunction being issued. Nor are the harms of sufficient certainty and severity to warrant an injunction because the only harms identified by Martin County are those arising from the improvement and operation of an existing railroad right-of-way that has been in continuous operation for more than one hundred years.