Amtrak/Texas Central have some steep political barriers to climb.52. High-Speed Rail: Taxpayer money shall not fund or subsidize high-speed rail, nor shall eminent domain be used in the construction of high-speed rail.
It's both, in a way that doesn't help in this case.Is eminent domain enshrined in state or in federal law?
If it is federal, I don't think the state legislature can do very much to overrule it.
Having a state government turn completely against you is absolutely a "deal breaker" as we have already seen with other passenger rail proposals, including those with prior approval and funding. A state government can withhold state funding, refuse many forms of federal funding, slow-walk approvals, support anti-project lawsuits, and forbid the use of public land, which is basically a death sentence for a project of this size. It's not all bad news though. For instance, the Talgos that were approved and built for use in Wisconsin only to be killed off by Scott Walker (et al.) eventually found a new life in Nigeria.As for funding, I understand Brightline West received a generous federal grant, but I have not heard that the states of Nevada and California provided any matching funding? So Texas not doing that either should not be a deal breaker.
This is sort of bogus because it's just a platform document published by a political party for this year's election campaign. Party platforms contain a lot of stuff that will never get enacted into law.It's both, in a way that doesn't help in this case.
The U.S. Constitution sets the basic standard for all exercises of eminent domain, in the 5th Amendment: "nor shall private property be taken for public use, without just compensation." The feds, a state, or a corporation with eminent domain power can't take property without paying the owners just compensation.
But a state's constitution is the source of authority for the state government and for corporations chartered or doing business in the state. A state could choose to ban its own (NOT federal) use of eminent domain, and the feds wouldn't make it use the power. A Texas corporation that has eminent domain powers got them from Texas law, and Texas law can limit or eliminate those powers.
The only federal constitutional claim I could see is equal protection/discrimination if Texas gave eminent domain power to some railroads and not others. We all know that's what they're* proposing in a practical sense: they seem to have no problem with private pipelines or electric transmission lines using eminent domain, nor are they asking the legislature to strip all railroads in Texas of the eminent domain power. They don't want Texas HSR to exercise eminent domain because they don't like passenger rail and/or expect it to be wholly private.
But I don't see discrimination as a winning legal argument: eminent domain is a power the state gives a corporation by grace because it fulfills some public purpose, states have broad authority to regulate business, lots of laws distinguish between one kind of business and another for reasonable but debatable reasons, and courts are reluctant to examine the public purposes a state claims for those policy decisions because those debates are generally supposed to be resolved in political bodies (city councils, legislatures, referenda, etc.) rather than courts.
Practically, if a state uses its authority in this way, where it legally can but arguably is making a bad decision, the only remedy is PR, public opinion, or politics, whichever you want to call it: arguing to legislators, other officials, the business community, or the general public that allowing railroads to exercise eminent domain but not Texas HSR would be arbitrary and, if they do it to this enterprise today because they don't like it, they could do something like it to your business or industry tomorrow for similarly idiosyncratic reasons.
*They= the opponents of Texas HSR using eminent domain. They haven't enshrined their opposition in Texas law yet, though they tried with the ridiculous "Texas HSR is not a railroad because it doesn't operate trains now" lawsuit.
1. "It's not true."This is sort of bogus because it's just a platform document published by a political party for this year's election campaign.
2. "And if it is true it's not as bad as you say."Party platforms contain a lot of stuff that will never get enacted into law. I'd be more concerned if it were actually a bill introduced in what the Texans call "the Lege," but even then, a lot of stuff that gets introduced in bills never makes it all the way.
3. "And if it is as bad as you say then it's easy to work around."Even if it does become law, all the railroad has to say is that what they're building is not "high speed rail."
Aren't you overlooking the supremacy clause here? I'm fairly certain the feds can and do exercise eminent domain even when state law contravenes it. As a federally-chartered US agency, Amtrak can tap into federal authority on such matters if its statutory powers allow it.It's both, in a way that doesn't help in this case.
The U.S. Constitution sets the basic standard for all exercises of eminent domain, in the 5th Amendment: "nor shall private property be taken for public use, without just compensation." The feds, a state, or a corporation with eminent domain power can't take property without paying the owners just compensation.
But a state's constitution is the source of authority for the state government and for corporations chartered or doing business in the state. A state could choose to ban its own (NOT federal) use of eminent domain, and the feds wouldn't make it use the power. A Texas corporation that has eminent domain powers got them from Texas law, and Texas law can limit or eliminate those powers.
The only federal constitutional claim I could see is equal protection/discrimination if Texas gave eminent domain power to some railroads and not others. We all know that's what they're* proposing in a practical sense: they seem to have no problem with private pipelines or electric transmission lines using eminent domain, nor are they asking the legislature to strip all railroads in Texas of the eminent domain power. They don't want Texas HSR to exercise eminent domain because they don't like passenger rail and/or expect it to be wholly private.
But I don't see discrimination as a winning legal argument: eminent domain is a power the state gives a corporation by grace because it fulfills some public purpose, states have broad authority to regulate business, lots of laws distinguish between one kind of business and another for reasonable but debatable reasons, and courts are reluctant to examine the public purposes a state claims for those policy decisions because those debates are generally supposed to be resolved in political bodies (city councils, legislatures, referenda, etc.) rather than courts.
Practically, if a state uses its authority in this way, where it legally can but arguably is making a bad decision, the only remedy is PR, public opinion, or politics, whichever you want to call it: arguing to legislators, other officials, the business community, or the general public that allowing railroads to exercise eminent domain but not Texas HSR would be arbitrary and, if they do it to this enterprise today because they don't like it, they could do something like it to your business or industry tomorrow for similarly idiosyncratic reasons.
*They= the opponents of Texas HSR using eminent domain. They haven't enshrined their opposition in Texas law yet, though they tried with the ridiculous "Texas HSR is not a railroad because it doesn't operate trains now" lawsuit.
Condescending, much?1. "It's not true."
2. "And if it is true it's not as bad as you say."
3. "And if it is as bad as you say then it's easy to work around."
In a de facto single party state the ruling party's platform carries a lot more weight than you seem to realize (or are willing to acknowledge).
Would there be a way that Texas Central could partner with a pipeline company to build a combined pipeline and HSR?Even if it does become law, all the railroad has to say is that what they're building is not "high speed rail."
In all states and all parties, the ruling party's platform is the place where they humor party extremists by pledging to do stuff that that they may or may not do. Like I said, let's wait until a bill is placed in the Legislature before one gets too hot and bothered about this.In a de facto single party state the ruling party's platform carries a lot more weight than you seem to realize (or are willing to acknowledge).
I agree.In all states and all parties, the ruling party's platform is the place where they humor party extremists by pledging to do stuff that that they may or may not do. Like I said, let's wait until a bill is placed in the Legislature before one gets too hot and bothered about this.
Texas really has done little as a state. Individual cities have, especially Dallas - Fort Worth. Texas as a state has been kept in the Heartland Ball game with much reluctance on part of the state government, which came very close to shutting it down several times. Houston has managed to do a bit of LRT but is stalled more or less. Austin has managed to do a DMU service. There are other cities which have passed laws banning commuter of LRT construction. So it is a depressing mixed bag so far, except the DFW Metro area.Remember Texas has built quite a lot of light rail and commuter rail over the last years and decades, much more than many other states, and this despite publicly announcing that it was against these things.
Add to that mix the streetcars in El Paso and Galveston.Texas really has done little as a state. Individual cities have, especially Dallas - Fort Worth. Texas as a state has been kept in the Heartland Ball game with much reluctance on part of the state government, which came very close to shutting it down several times. Houston has managed to do a bit of LRT but is stalled more or less. Austin has managed to do a DMU service. There are other cities which have passed laws banning commuter of LRT construction. So it is a depressing mixed bag so far, except the DFW Metro area.
But who knows? Maybe things will change for the better, but I tend to agree with the assessment of the Texas residents here than outside prognosticators.
I agree. They could not have been built with active opposition. But indeed the collaboration has generally been passive at best. It is the larger cities with enough heft that have been able to jiggle loose a few state dollars to cover the match required by the feds..I don't think any of these systems would have got built without at least some passive collaboration from the state level.
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