BRADENTON, Fla. – A federal court should dismiss two lawsuits challenging the financing for a Florida passenger train project because they are moot and a new federal administration will review future bond applications, according to new court filings.
Both All Aboard Florida, the private developer of the planned Miami-to-Orlando intercity express train project, and the U.S. Department of Transportation argued in the filings Monday that suits filed by two Florida counties are moot and should be dismissed.
If U.S. District Judge Christopher R. Cooper agrees with those arguments, it could be the end of the line for legal challenges filed by Indian River and Martin counties in early 2015.
USDOT withdrew its 2014 decision allocating $1.75 billion of private activity bonds for the entire project on November 22, 2016, a move that eliminated financing for phase 2 of the route, from Palm Beach County to Orlando.
Phase 2 is to pass through Indian River and Martin counties without stopping, but county officials there have contended that public safety, historical and quality-of-life issues have not been addressed in a federal review process for the project.
"Because DOT's 2014 PAB allocation can no longer plausibly threaten injury to plaintiffs, there is no longer any case or controversy before the court…and the cases must be dismissed," USDOT attorneys wrote.
If AAF applies in the future for bonds to finance the segment affecting the two counties "any new decision allocating PABs for phase 2 of the project would be made by the new administration," they said.
On Tuesday, Elaine Chao, a Republican and wife of Senate Majority Leader Mitch McConnell, R-Ky., was sworn as secretary of the USDOT.
The Trump administration has proposed a major infrastructure financing plan, and reportedly is developing a list of projects to be considered.
Chao replaces Anthony Foxx, who, under the former Obama administration, supported high-speed passenger rail projects.
In its court filing Monday, All Aboard Florida also contended the suits are moot and said that any decision at this point regarding federal review of the project in the future "would constitute an impermissible advisory opinion."
"Any future USDOT action regarding phase 2 of the project may involve different terms, different considerations, and different conditions," the company's attorney said. "This is all the more true where…the decision on any future application will be made by new political leadership under a new administration."
After USDOT withdrew approval of the $1.75 billion PABs, the agency awarded a smaller tranche of $600 million to finance phase 1 of the AAF project between Miami and West Palm Beach where its Brightline-branded service is expected to begin this summer.
AAF has said it will request $1.15 billion of bonds at a later date to finance the 168 miles from West Palm Beach to Orlando.
Two weeks ago, Indian River and Martin counties urged Cooper not to dismiss their lawsuits challenging the bonds for the $3.5 billion project.
The counties contended that their suits remained viable, citing previous court rulings, and the fact that USDOT "still adheres to its position that its approval of an application for PABs is exempt" from federal environmental review despite an Aug. 16 ruling by Cooper that said the bonds should have been reviewed.
The counties also argued that the motions to dismiss should be denied because of significant resources spent prosecuting the lawsuits and that it would be inequitable to prevent them from going forward "because of a back-room deal by the defendants" that would require them to mount another legal challenge if USDOT approves $1.15 billion of PABs at a later date.
AAF said Monday there was "nothing at all untoward or underhanded" about its decision to withdraw the 2014 PAB application and replace it with the smaller tranche.
"To the contrary, AAF has been completely upfront about its reasons for seeking a new allocation," attorneys said.
AAF said it "simply recognized" that it would be easier to market a smaller, targeted bond offering for phase 1, which has completed a review under the National Environmental Policy Act.
A similar NEPA review for phase 2 has not been completed.