Texas High Speed Rail

Shop deals on ebay
Advertise with us
shop deals on amazon
Amtrak Unlimited Discussion Forum

Help Support Amtrak Unlimited Discussion Forum:

This site may earn a commission from merchant affiliate links, including eBay, Amazon, and others.
Legal noob question here.

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.

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.
 
cirdan said:
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.
Click to expand...
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.
 
cirdan said:
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.
Click to expand...
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.

https://x.com/jidesanwoolu/status/1763096605236851080
 
Last edited:
John Bredin said:
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.
Click to expand...
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.

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.

Even if it does become law, all the railroad has to say is that what they're building is not "high speed rail."

I do hope that eventually the political winds in Texas will change and the reflexive anti-passenger raill attitudes will lose power.
 
MARC Rider said:
This is sort of bogus because it's just a platform document published by a political party for this year's election campaign.
Click to expand...
1. "It's not true."
MARC Rider said:
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.
Click to expand...
2. "And if it is true it's not as bad as you say."
MARC Rider said:
Even if it does become law, all the railroad has to say is that what they're building is not "high speed rail."
Click to expand...
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).
 
John Bredin said:
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.
Click to expand...
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.

Devil's Advocate said:
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).
Click to expand...
Condescending, much?
 
Texas Central quietly folded up shop shortly before the Texas Supreme Court surprised everyone by ruling that TC has valid right of eminent domain. There is too much support for TC for the legislature to take it away.
 
Devil's Advocate said:
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).
Click to expand...
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.
 
MARC Rider said:
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.
Click to expand...
I agree.

In a hot and bitter election year such as this one, parties will naturally play to their base.
Once in power and they have a state to run, with all the associated responsibility, a more pragmatic approach may settle in. A massive job-creation opportunity such as this, that mostly involves spending other people's money at very little risk to themselves, but with very high potential returns, is not something anybody will bin lightly.

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.
 
cirdan said:
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.
Click to expand...
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.
 
jis said:
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.
Click to expand...
Add to that mix the streetcars in El Paso and Galveston.
Houston is more than a "bit of LRT". It claims to have the highest per mile ridership of any system in the southern US. Quite impressive seeing that little more than 20 years ago there was nothing there at all.

I don't think any of these systems would have got built without at least some passive collaboration from the state level.
 
cirdan said:
I don't think any of these systems would have got built without at least some passive collaboration from the state level.
Click to expand...
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..

While being impressed I still tend to agree with the Texan residents assessment than mine. Whenever someone from Texas State has bothered to even give a little support good things have happened like the daily running of the Texas Eagle, which would not have happened without Kay Bailey Hutchinson. Indeed it would most likely have been canceled outright back then. The other side of the coin is, the fact that the Sunset remain thrice a week through Texas because of complete lack of interest at the Texas State level.
 
A setback for a multi-billion dollar BRT in Houston: https://ggwash.org/view/94064/national-links-houston-metro-suspends-transformational-brt-project

BRT's that cost just a few hundred million qualify for a fast-track funding at U.S. DOT. This one in Houston, University Corridor, 25 miles, took away lanes, and you have to wonder what elevated rail would have cost, if it could be tolerated.

Houston's one of those cities with thriving inner neighborhoods that are proudly distinguished from outer suburbs, for those that can do it. I met one of the probably legions of young people who had migrated from Katy, the ur-suburb, to inside-the-loop. Inside the Loop is vast, and full of walkable tree-shaded neighborhoods, bike paths along the bayou, downtown offices, classical arts, etc. And at least one historical fort area that you have to know closes at five or you'll have to climb over a fence to get out. Then, at a light rail station next to a Walmart that had batteries I needed, another fence climb.
 
In Texas, the idea for a $30billion high-speed line is currently being reviewed. They want to adapt the highly successful Japanese Shinkansen system. So what do their plans exactly look like? And why might Texas be the ideal home to the first real high speed railway in the U.S?

 
Devil's Advocate said:
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).
Click to expand...
I mean, the guys at Texas HSR could probably have just bought an operating short line and proceeded under that guise rather than battling the litigation about "You're not a railroad because you're not running trains" and saved both time and money. I can only conclude that some of them were idiots.
 
Anderson said:
I mean, the guys at Texas HSR could probably have just bought an operating short line and proceeded under that guise rather than battling the litigation about "You're not a railroad because you're not running trains" and saved both time and money. I can only conclude that some of them were idiots.
Click to expand...
Reminds me of early days of Amtrak…they did not get much “cred” as a “real railroad”, until the NEC was conveyed to them in 1976.🙂
 
railiner said:
Reminds me of early days of Amtrak…they did not get much “cred” as a “real railroad”, until the NEC was conveyed to them in 1976.🙂
Click to expand...
There were two things that made them a real railroad
  • Having their own T&E staff operate their trains happened over time for LD
  • NEC happened in 1976
As created they were mostly a passenger service provider with operating functions such as T&E contracted to railroads or someone else. They did have the responsibility for rolling stock ownership and maintenance (sort of like GATX for freight rolling stock :) ). That last one I believe they had since day one though initially quite a bit of that was also contracted out until they built up internal capacity in facilities that were transferred over from the freight railroads (e.g. Bear, Beech Grove etc.)
 
Anderson said:
I mean, the guys at Texas HSR could probably have just bought an operating short line and proceeded under that guise rather than battling the litigation about "You're not a railroad because you're not running trains" and saved both time and money. I can only conclude that some of them were idiots.
Click to expand...
I'm not sure that would have stopped litigation!
 
eldomtom2 said:
I'm not sure that would have stopped litigation!
Click to expand...
At a minimum it would have made the underlying litigation fraught (and potentially opened up bad faith counter-claims if the same folks challenged under different grounds).

No, I haven't wanted to see some NIMBY coming up with spurious grounds to challenge things get run into the ground, why do you ask?
 

Latest posts

Back
Top