For the past few weeks, Railway Age has conducted an in-depth examination of the case of Miles v. Texas Central Railroad & Infrastructure, Inc. (TCRI) and Integrated Texas Logistics, Inc. (ITL), now before the Texas Supreme Court. TCRI and ITL are collectively known as “Texas Central” and they want to build a high-speed rail (HSR) line between Dallas and a location northwest of Houston where two major highways intersect. Congressman (R-Tex.) Jake Ellzey filed his own objections to the project. So did a number of others, including several local elected officials, all of whom happen to be Republicans. The day before oral argument was scheduled before the Court, Ellzey opened a second front by introducing a bill in the House that would stop the Texas Central project and others like it dead in their tracks, even in the apparently unlikely event that the Court should side with Texas Central.
Ellzey is new to politics, but rose fast. After a brief stint in the Texas House of Representatives, he was elected to the U.S. House last year in a special election, defeating his predecessor Ron Wright’s widow Susan, who was endorsed by Donald Trump. He was a Navy pilot, served in Iraq and Afghanistan, and is active in veteran’s affairs. His district, the Sixth, is at the north end of the proposed Texas Central line and “spans from the Rangers ballpark in southern Tarrant County to the booming suburbs of Ellis and Navarro Counties,” according to his website, www.ellzey.house.gov. Fort Worth is also in Tarrant County, but north of his district.
Some landowners along the proposed route vehemently oppose the project because it would use their land for the right-of-way. James Frederick Miles, a landowner in rural and Republican Leon County, between Dallas and Houston and not near either, filed suit to prevent Texas Central from entering his land and surveying it for potential railroad use. The local court agreed with him, the appellate court reversed it, the Texas Supreme Court denied his first petition for review, and shortly thereafter, changed its mind and invited the State to join the case. The State filed briefs agreeing with Miles. Many other interested non-parties also filed amicus briefs, urging the Court either to affirm the lower court and allow the project to go forward, or to reverse it, stopping the proposed high-speed project dead in its tracks.
Much of Texas Central’s support came from Dallas or Houston, local strongholds for Democrats in a state that has become strongly Republican since the turn of the current century. The call for reversal came most strongly from landowners along the proposed line, businesses that support local agriculture and ranching, and local elected officials, all Republicans. Ellzey was one of them.
We have reported extensively on the case, including an analysis of how the Court can be reasonably expected to rule, at least as it looks from here. The Court has nine Republicans and no Democrats, most or all of the amici urging affirmance are Democrats, and all who specified a political identification and urged reversal are Republicans. While courts have been known to deliver a surprise to commentators and much of the legal profession from time to time, such an outcome appears highly unlikely in this case. After all, the Court reversed its own week-old decision not to review the case, deciding to take it, anyway. In all likelihood, that was the surprise, and there will not be another.
It would be an easy matter for the Court to agree with Miles that Texas Central is not yet an “operating a railroad” as required for authority to take land (including an easement across it) under eminent domain for railroad purposes, because it is not yet operating trains, although such a ruling would appear inconsistent with the FRA’s involvement with Texas Central over the past two years. The agency held a full-fledged administrative proceeding regarding Texas Central and issued a 77-page ruling in the Federal Register on Nov. 3, 2020 (found at 85 Fed.Reg. 69,700). It contained a Record of Decision (ROD) and a new set of rules in the Code of Federal Regulations, 49 C.F.R part 299, which became effective on Dec. 3, 2020. The new regulations are purpose-driven and apply only to the planned Texas Central operation. It would seem that the FRA treated Texas Central as a railroad company, perhaps within the meaning of the Texas statute at issue regarding “operating a railroad.” Ironically, though, our review of the briefs and pleadings in the case did not reveal that any party or amicus had mentioned the FRA proceeding.
Aside from the “operating a railroad” issue, the Court could also say that Texas Central has not demonstrated a “reasonable probability” that it could complete the project, because it is not clear that the it will have the money. Success on either argument, or on any others that were briefed, would kill the project, once and for all, and make sure that there will not be any more like it in the Lone Star State.
Still, Ellzey is taking no chances. He used his elected office to introduce Bill H.R. 6365, the High-Speed Rail Land Acquisition Assurance Act, with the description: “To direct the Surface Transportation Board [STB] to require any high-speed rail project to acquire all land for the project before starting construction, and for other purposes.”
Ellzey’s original co-sponsor is Rep. Kevin Brady (R-Tex.) from the Eighth District, located further south along the proposed line and ending in the northern outskirts of Houston. Brady has held his House seat since 1997, but also announced that he will retire at the end of this year. A few days after it was introduced, Rep. Michael McCall (R-Tex.) from the Tenth District, signed on as another co-sponsor. That district stretches from the Northwest suburbs of Houston toward Austin. At this writing, www.govtrack.us does not list any other co-sponsors for the bill.
H.R. 6365 Explained—Sort Of
A press release posted on Ellzey’s website the day he introduced the bill said: “The High-Speed Rail Land Acquisition Assurance Act as filed will require companies to acquire all the land needed to finish a high-speed rail project before construction can begin … Ellzey is helping lead the charge in Congress against High-Speed Rail Projects and their use of eminent domain. Filing the High-Speed Rail Land Acquisition Assurance Act is the first step in assuring the protection of Americans [sic] property rights.”
The bill itself is very short, and here it is in its entirety; all 126 words of it:
A BILL: To direct the Surface Transportation Board to require any high-speed rail project to acquire all land for the project before starting construction, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. LAND ACQUISITION FOR HIGH-SPEED RAIL.
(a) In General.—The Surface Transportation Board may not approve any high-speed rail project—
(1) to be built across a distance of fewer than 10 miles; and
(2) before all land needed for the project is acquired.
(b) High-Speed Rail Defined.—In this Act, the term “high-speed rail” means passenger ground transportation across a railroad or using magnetic levitation systems where a speed of 125 miles per hour can reasonably be expected to occur.
The bill was then referred to the house Transportation Committee and the House Railroad, Pipelines and Hazardous Materials Subcommittee.
We checked with the STB and were informed that the agency does have some jurisdiction over matters such as the Texas Central proposal concerning potential economic impacts, and shares authority with the FRA over environmental issues. The FRA has jurisdiction over safety and technical concerns, as demonstrated by the previously mentioned proceeding. As far as economic impacts are concerned, they would probably not be significant, because there would be no competing railroad that would operate passenger trains between the Dallas and Houston areas, especially at the speed contemplated by Texas Central of up to 205 mph. The proposed line would also carry no freight. With the STB still having jurisdiction over environmental matters, though, the Ellzey bill as written could force it to prevent construction of new high-speed rail lines.
The provisions prohibiting the STB from approving a proposed HSR line less than ten miles long and the mention of magnetic levitation systems (maglev) have nothing to do with Texas Central, and it appears puzzling that they are in the bill. There have been many tests of maglev technology throughout the past 50 years, but that technology has not been widely adopted. It was first used in commercial service for an airport line in Shanghai, and is also in use in Beijing and in Inchon, South Korea, but it has not been adopted in this country. There was a proposal for a maglev line between Baltimore and Washington, D.C. that never got off the ground. It may be possible that Ellzey and his co-sponsors do not want to see HSR or maglev used on airport lines, some of which are less than ten miles long, but we have not found any legislative history to support that.
There are further ambiguities in subsection (a)(1), one caused by using the phrase “across a distance” instead of the more-commonly-used “along a distance” followed by that distance. The phrase “fewer than 10 miles” also connotes an integer, with the next-shorter gradation being 9 miles, so 9.50 miles (which rounds up to 10) would be the longest distance under consideration. The more-common expression “less than 10 miles” would connote nine miles, plus any fraction of the tenth mile, in calculating how long a line must be in order to be permissible under the bill. It would not be a useful exercise to speculate on resolving those particular ambiguities at this time, but the briefs filed in the court case were replete with technical grammatical arguments at least as arcane as the ones stated in this paragraph. These ambiguities could have been avoided by precise drafting of the bill’s provisions.
The bill defines “high-speed rail” as “passenger ground transportation across a railroad or using magnetic levitation systems where a speed of 125 miles per hour can reasonably be expected to occur.” To a lay person, that might qualify, but it is certainly ambiguous. Is 125 mph the top speed or the average speed, as envisioned in the bill? If it’s the top speed, Amtrak’s Northeast Corridor (NEC) would qualify as HSR because trains reach that speed routinely on the “speedway” in Central Jersey and on portions of the route around Providence, R.I. The line’s average speed is far slower, which means it would not qualify as HSR if that were the measuring speed.
The phrase “can reasonably be expected to occur” relates back to the issue of whether Texas Central had a “reasonable probability” of completing the proposed project, discussed earlier in our reporting about the court case. The American subsidiary of French railroad SNCF and other opponents of Texas Central argued that it was unlikely that the Texas Central plan could make it to the point of actual operation. As a construct, the phrase “can reasonably be expected” is itself ambiguous. The concepts of a “reasonable legal certainty” and a “reasonably technical certainly” are different; the latter can be stricter and is likely to be more precise. Without further clarification, the term is beyond ambiguous, heading toward being amorphous. Who is to say what “can reasonably be expected” means? Whose expectation counts, and is it reasonable? Is it the expectation of the average person on the street, a well-informed lay person, a professional in the railroad management field or the technical fields connected with maglev or HSR technology, or a landowner who wants to keep the trains away from his or her land? In a court case, expert witnesses can narrow the issues to help judges and juries understand them. In a statute, the built-in ambiguity sets standards for the nation, whether anybody else understands those standards or not.
Possible Impacts Evaluated
In the event that Ellzey’s bill becomes law, how would that affect HSR and its future prospects around the country? At this writing, we are in uncharted territory, because there is no definitive legislative history document to resolve any ambiguities in the wording of the bill, and no other commentators have yet ventured an opinion. With that understanding, following are some possibilities.
Under the stated conditions, the STB would not be allowed to approve a new HSR line unless two conditions are met: the line must not be less than ten miles long, and all land needed for the project must be acquired before the STB can approve it. It is unclear why the former condition is included in the bill, because the marginal time saved by running at high speed on a trip of less than ten miles would be minimal, compared to the much-higher marginal cost of building such a line, compared to conventional rail, which clearly lies outside the bill’s purview.
The latter condition is the key, and it could preclude construction of a new HSR line in the foreseeable future. A landowner like Miles (or, possibly, even Ellzey himself) who does not want such a rail line to be built on his or her land could veto any potential project, and that landowner’s heirs could continue to impose that veto. Even if Texas or another state at issue continues to apply the historic common-law Rule Against Perpetuities or the Rule Against Restraints on Alienation of Land (arcane concepts that even many lawyers find difficult to understand), a determined heir or a well-drafted trust could keep a railroad out for about 110 years or more, a length of time equivalent to “forever” for anyone living today. So it appears, at least from here, that Ellzey’s proposal could succeed in keeping new HSR lines from being approved and built for a very long time.
The 125-mph standard is ambiguous, as mentioned before, and so is the “can reasonably be expected to occur” standard. Imprecise drafting of that sort leads to only one result: a lot of litigation to establish tighter and more-easily-applicable legal standards to replace the looser ones in the bill’s original language. That means lots of time, money, delay and uncertainty have been “baked into” the statute. The actual effect of that level of unnecessary effort might be reduced somewhat by the small number of HSR proposals currently on the table, though.
If the Texas Court grants Ellzey’s wish and kills the Texas Central project, we know “to a reasonable legal certainty” that the bill would apply to that project, but it would not be needed for that purpose. The project would be dead, anyway. For some hypothetical HSR project in the future, it would probably have the same lethal effect, because of the difficulty involved in persuading every landowner along the proposed route to consent to the railroad coming through.
A look at the other proposed HSR (or at least “high-performance rail”, a somewhat-lower standard) projects now under construction is instructive here. The bill would not apply to the California High-Speed Rail (CAHSR) project or Brightline’s projects (Brightline’s extension to Orlando Airport and Brightline West to Las Vegas), because they were already moving forward when Ellzey’s bill was introduced. Still, there is no other basis of comparison, except for the hypothetical that similar projects are introduced later, with the bill in effect. CAHSR is not yet “operating a railroad” as construed by Texas Central’s opponents, and a ruling to that effect by the Court would be persuasive, although mandatory in another state. Nonetheless, the bill would prohibit construction until all necessary land had been acquired. The same rule would apply to the Brightline Orlando Airport extension and Brightline West projects, even though there is no dispute that Brightline is “operating a railroad” under any interpretation of the Texas statute at issue, because the company is running passenger trains in South Florida today.
If HSR were to catch on in this country, the definition in the statute could cause major disruption in the industry. The ambiguity of whether 125 mph is the top speed or the average speed raises the question of whether or not potential lines would be subjected to the bill’s apparently insurmountable restriction. If a line comparable to Amtrak’s NEC were proposed today, it would fall into that category, subject to the bill if it means top but not average speed of 125 mph. Eventually, such an ambiguity is eventually resolved either by amending the statute, or through a long and expensive process of litigation, possibly going all the way to the U.S. Supreme Court.
Beyond that, if the bill were to pass, the STB and the FRA would be bound by it, the former subject to a new legal precondition before approving a new HSR line, the latter having to accept the bill’s definition, which would preclude that agency from adopting a higher standard like 150 mph instead. That would preclude a much-stricter standard like 250 mph (400 kph), which could still govern true HSR operations in other countries, especially in Europe, China and Japan.
The FRA currently has a track classification system that defines Class 7 track as having a speed limit of 125 mph under 49 CFR §213.307, which might qualify as HSR under the bill, depending on how it is interpreted. The same provision allows for Class 8 track with a 160 mph speed limit and Class 9 track with a 200 mph speed limit. If the bill is enacted and one landowner holds out, the Class 8 track on Amtrak’s NEC might render it one of the few railroads in the nation to have any track of that quality. The others could be CAHSR, Brightline in Florida, and Brightline West. Moreover, there is no Class 9 track anywhere in the country, and under the proposed bill, there effectively never will be. The FRA also has equipment tiers: Tier 1 (up to 125 mph) and Tier 2 (up to 150 mph). If the bill passes, Tier 2 equipment would be operating only on the above-mentioned lines, and there will never be any reason to think about a Tier 3 for higher speeds.
Could H.R. 6365 Pass?
This article has been an exercise in spotting issues, reminiscent of similar efforts during law school for the author, which always start with a hypothetical. At the present time, Bill H.R. 6365 from the 117th Congress is a hypothetical, but will it always be so, or does it have a chance of becoming law?
As things stand now, it’s not going anywhere. The prognosis for the bill is a 2% chance of passing, as stated by www.govtrack.us and according to Skoops Labs. The same site delivered the same prognosis about every bill about high-speed rail during the past year, whether pro or con. Still, it looks from here that passage is highly unlikely. Local Republicans in Texas do not want the Texas Central project to be built, so they would support the bill. It’s unclear whether or not that, in itself, would be sufficient to generate broad support throughout the GOP for a bill that would effectively preclude any more HSR projects anywhere else. Except for the NEC Future project under FRA auspices for developing Amtrak’s NEC and branches and the CAHSR project under the California High-Speed Rail Authority, all other HSR projects would presumably come from the private sector. Do most Republicans oppose the concept of HSR so much that they would vote to preclude more private-sector entities like Brightline from developing such lines? That appears highly unlikely. It is also equally improbable that any Democrats would vote for the bill. In the event that it makes its way through Congress, President Biden would certainly not sign it. Even in the more-likely event that Republicans capture both houses this November, Biden would still be able to veto the bill, and the remaining Congressional Democrats would prevent his veto from being overridden.
The result could change after the 2024 elections, though. Consider a scenario most favorable to Republicans: the GOP wins or keeps control of both houses of Congress, Trump (who has consistently lied that the 2020 election was “stolen” from him) wins his party’s nomination and the election with enough undisputed state victories to garner 270 votes or more in the Electoral College. In effect, 2025 would be a repeat of 2017. That does not guarantee that Republicans who oppose high-speed rail will be able to pass a re-introduced version of the bill, even with Trump’s support. The change would be from the realm of impossibility to that of possibility.
Ellzey’s bill is narrow. He clothes it in the cloak of individual property rights for the landowner who resists encroachment by a monolithic corporation that wants to invade his land to build an evil railroad to move people between two distant cities. The railroad would not even stop in his local area. This is not like the 19th century, when local folks wanted a new railroad in their town, so they could travel, ship their local products to market or receive merchandise they had ordered.
Ellzey does not oppose everyone who might want to acquire his or anybody else’s property by eminent domain, though. He only opposes a high-speed rail line. His bill would not preclude a similar “taking” by a government agency (the original purpose of eminent domain), a highway project (which would be at least as invasive as the prospect to which he so vigorously objects), a private-sector entity for another purpose (as articulated recently and controversially by the Court in Kelo v. City of New London, 545 U.S. 469 (2005), which held that land could be taken for economic development by a private developer, as part of a plan that included a traditional “public use”), or even a conventional rail line whose track would not be rated for 125 mph operation (but only 110 mph).
In the absence of legislative history to the contrary, a reasonable construction of the bill indicates that Ellzey’s legislative intent is to stop the Texas Central project, period. While the Supreme Court of Texas is likely to do that by relying on plaintiff Miles’s and the State’s arguments that Texas Central is not “operating a railroad” yet and such has no authority to acquire land by eminent domain, Ellzey is taking no chances, even though passage of his bill could have highly adverse consequences for the industry and potential riders elsewhere in the country, beyond the Court’s legal reach. Perhaps the ultimate display of power is to be able to take a personal grievance and enlarge it to the point where it becomes enshrined in statute, so everybody else is required to obey.
We don’t know about that, but we know that, at least for now, Ellzey and his co-sponsors will probably not get their wish in the halls of Congress. The Court is another matter. As things stand, it appears that they are far more likely to have that body allow their specific wish to come true. We are waiting to hear from the Court, and we will report on their opinion when they hand it down.
Note: We reached out by e-mail message to the designated staff member in Ellzey’s office to get information on the bill from their standpoint, but that inquiry was not returned.