LEGAL NEWS: ALL ABOARD'S RESPONSE TO MARTIN COUNTY'S MOTION FOR PRELIMINARY INJUNCTION

Publish Date: 
Thursday, May 28, 2015 - 8:45pm

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.