The TC Palm: Indian River County sues the federal government over All Aboard Florida bonds

Posted on April 2, 2015

Lisa Broadt

The federal government is prohibited from approving funding All Aboard Florida until it has ensured the rail project would be compatible with nearby communities — but that’s just what it’s doing, according to a lawsuit filed Tuesday in U.S. District Court.


The suit — filed by Indian River County, the county emergency services district and a historic-preservation group — names the U.S. Department of Transportation and Transportation Under Secretary Peter M. Rogoff for allegedly sidestepping National Environmental Policy Act regulations to allocate $1.75 billion of private activity bonds to All Aboard Florida.


It asks the court to nullify DOT’s approval and prevent the department from taking further action until the federal environmental requirements have been satisfied.


“Indian River County is up against a gigantic governmental agency, but the DOT’s” actions were unlawful, County Attorney Dylan Reingold said. “(The National Environmental Policy Act’s) purpose was (willfully ignored) because the DOT approved the bonds before the process was completed.”


Several other Treasure Coast governments and organizations — including Martin County and Citizens Against Rail Expansion — have threatened legal action, but Indian River County is the first to file a lawsuit. Last month, the county allocated $2.7 million for legal action related to All Aboard Florida.


The county is open to collaboration, but for now, is working alone, according to Reingold.


All Aboard Florida officials declined to comment. DOT does not comment on pending litigation, said spokesman Ryan Daniels.


The private railroad company’s $3 billion project would send 32 trains daily along the existing Florida East Coast Railway tracks as part of its Miami-to-Orlando high-speed passenger service. All Aboard Florida is relying on the tax-exempt bonds to fund much of its construction, and is expected to have them issued within 90 days through the Florida Development Finance Corp.


DOT is requiring the bonds be sold by July 1.


But, according to the lawsuit, DOT violated federal law in December, when it approved the bonds before the Federal Railroad Administration issued a final environmental impact report or record of decision, as required by federal law.


“DOT made its decision without ever considering the environmental impacts as disclosed in the (draft environmental impact statement) process,” Reingold said. The draft came out in September, and over the ensuing months, nearly every Treasure Coast government submitted written comments to the railroad administration. The agency received more than 12,000 comments.


Still, it’s unlikely Indian River County will succeed in court, but that could be OK, according to Michael Allan Wolf, a University of Florida law professor who specializes in local-government law.


“Their odds of prevailing are very slim, but NEPA issues aren’t necessarily defined by success in court,” Wolf said. “Often NEPA suits are for delay.”


If Indian River County can get the government to “stop and think,” federal officials might reconsider the environmental impacts, according to Wolf.


“The stopping is more important than the thinking,” he said, “because if you can marshal forces during the stopping — if you make a stink you might get politicians involved — your chances are better.” If Indian River County could hold off the project for the next year and a half, it could find itself working with a president less enthusiastic about high-speed rail, Wolf said.


Success in court will depend on whether the county can persuade a judge that All Aboard’s threat is imminent, serious and real, according Josh Gellers, a University of North Florida political science professor.


“Indian River County’s argument rests mainly on conjectural future harms,” Gellers said. “The arguments for future potential harm are substantial and well documented in the complaint filed, but they are still conjectural, not actual.”


Plus, the county is facing a formidable foe.


“The odds are stacked against the county,” Gellers said. Data from 2008-2011 show that the federal government wins more than 50 percent of its National Environmental Policy Act cases. Including settlements, that figure jumps to 80 percent, he said.


All Aboard Florida plans to begin service from Miami to West Palm Beach by the end of next year, and through the Treasure Coast to Orlando International Airport in early 2017.


The Federal Railroad Administration has no release date for the final environmental impact statement, according to spokesman Michael Cole.

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