BRADENTON, Fla. – A federal judge has granted a 30-day extension for All Aboard Florida and the U.S. Department of Transportation to respond to lawsuits challenging a $1.75 billion private activity bond allocation to finance a private passenger train project.
The extra time will allow All Aboard Florida and USDOT to employ a new strategy they say is designed to avert a final judgment from being handed down in the cases filed by Indian River and Martin counties, they have said in court filings.
U.S. District Judge Christopher R. Cooper ruled on Thursday that All Aboard Florida and USDOT have until Dec. 7 to file responses to motions for summary judgement sought by the two counties.
Cooper's decision came after AAF said it would withdraw its original application for $1.75 billion in bond financing and file two new applications for financing from USDOT in a move designed to render the lawsuits moot.
AAF, a private company owned by Fortress Investment Group, plans to operate its Brightline-branded passenger train service between Miami and Orlando, a 235-mile route being developed in two phases.
Martin and Indian River counties, which filed the first-ever challenge of a PAB allocation, disagreed in court documents that the new financing strategy would render their suits moot.
On Sept. 30, AAF submitted a new application to USDOT for $600 million of PABs to fund phase I of the project from Miami to West Palm Beach, which has received final clearance under the National Environmental Policy Act.
A USDOT credit council is expected to consider the $600 million application on Nov. 16.
All Aboard Florida said it plans at a later date to file a second application with USDOT for $1.15 billion in PABs to fund phase II from West Palm Beach to Orlando, which has not received final clearance under NEPA.
Phase II, which runs through Indian River and Martin counties without stopping, has not received final clearance under NEPA.
Both counties have claimed in their lawsuits that public safety, historical, and environmental aspects of the project have not yet been considered by federal officials required to sign off on the project.
They also contended that it was improper for USDOT to approve the PAB allocation without clearing it through the NEPA process.
USDOT has said there is no requirement for private activity bonds to be considered in the NEPA process.
In an Aug. 16 ruling that enabled the lawsuits to proceed, Cooper said that the counties had proved that AAF's bond allocation should have been considered in the federal environmental review process.
Martin and Indian River counties have said they believe AAF's bifurcated PAB financing strategy would not prevent their suits from reaching conclusion partly due to the fact that bond-financed equipment used in phase I would also be used in phase II.