Railroad Legal Issues and Resources (2015)

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95 K. When an Employee May Recover Under FELA for a Fear of 548 Developing Cancer An article in Trial, in which the author analyzes the application of FELA in cases when there are substances in the workplace that cause nonmalignant harm but that may cause cancer in the long term, suggests how to harmonize the awards that include damages for fear of cancer.433 L. Whether the Cost of FELA Claims Is Too High 549 In The Federal Employers’ Liability Act: A Compensation System in Urgent Need of Reform, the authors argue that over the last century the Supreme Court has sought to diminish a plaintiff’s burden of proof for claims under FELA.434 M. Whether FELA Should Be Repealed 550 In Why Congress Should Repeal the Federal Employers’ Liability Act of 1908, the author argues that FELA should be repealed or clarified and replaced by state workers’ compensation funds.435 XXII. FEDERAL FINANCING FOR RAILROAD PROJECTS 551 A. Introduction 551 Congress has authorized billions of dollars to support the expansion and upgrading of transportation systems across the country.436 Sections B through D summarize some features of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Transportation Infrastructure Finance and Innovation Act (TIFIA), and the Railroad Rehabilitation and Improvement Financing Act (RRIF). Section E discusses funding for the Railway–Highway Crossings Program. Section F discusses the 2009 American Recovery and Reinvestment Act (ARRA). 433 William P. Gavin, FELA and the Fear of Cancer, TRIAL (Jan. 2011). 434 Arnold I. Havens & Anthony A. Anderson, The Federal Employers’ Liability Act: A Compensation System in Urgent Need of Reform, 34 FED. B. NEWS & J. 310 (1987). 435 Thomas E. Baker, Why Congress Should Repeal the Federal Employers’ Liability Act of 1908, 29 HARV. J. ON LEGIS. 79, 87, 92 (1992). 436 Federal Highway Administration, MAP-21 Moving Ahead for Progress in the 21st Century, available at https://www.fhwa.dot.gov/map21/ (last accessed Mar. 31, 2015).

96 Statutes 551 B. Moving Ahead for Progress in the 21st Century Act 551 1. Programs Affected by MAP-21 551 MAP-21, enacted by Congress in 2012, “creates a streamlined and performance-based surface transportation program and builds on many of the highway, transit, bike, and pedestrian programs and policies established in 1991.”437 2. Funding for Surface Transportation Programs 552 MAP-21 expanded numerous projects already in progress within the various highway programs and included funding in connection with TIFIA and for the upgrading of railway– highway grade crossings.438 Statutes and Regulations 552 C. Transportation Infrastructure Finance and Innovation Act 552 1. Funding 552 TIFIA, enacted in 1998 and modified by MAP-21, “makes three forms of credit assistance available—secured (direct) loans, loan guarantees and standby lines of credit—for surface transportation projects of national or regional significance,” such as highway, railroad, intermodal freight, and transit projects.439 2. Project Eligibility 553 Rail projects that are eligible for a TIFIA line of credit or loan include intercity passenger rail facilities (as well as Amtrak); public and private freight rail projects, although the latter must provide a “public benefit for highway users”; intermodal freight transfer facilities; and projects that improve the service of freight rails.440 437 Id. 438 MAP-21 § 2002 (2012), 23 U.S.C. §§ 601–609 (2014); MAP-21 § 1519, 23 U.S.C. § 130 (2014). 439 Federal Highway Administration, Transportation Infrastructure Finance and Innovation Act, available at https://www.fhwa.dot.gov/map21/factsheets/tifia.cfm and https://www.fhwa.dot.gov/map21/factsheets/tifia.cfm (last accessed Mar. 31, 2015) and http://www.fra.dot.gov/Page/P0340 (last accessed Mar. 31, 2015); MAP-21 § 2002; 23 U.S.C. §§ 601– 609. 440 MAP-21 § 2002 (2012), 23 U.S.C. §§ 601–609 (2014); MAP-21 § 1519, 23 U.S.C. § 130 (2014).

97 D. Railroad Rehabilitation and Improvement Financing Program 554 Statutes and Regulations 554 1. Direct Loans and Loan Guarantees 554 As a result of the Transportation Equity Act for the 21st Century (TEA-21), the RRIF program authorized up to $35 billion in direct loans and loan guarantees for railroad infrastructure projects.441 2. Project Eligibility 557 Under the RRIF program, financial assistance is available to acquire, improve, or rehabilitate intermodal or rail equipment or facilities, including track, components of track, bridges, yards, buildings, and shops; to refinance certain outstanding debt; or to develop or establish new intermodal or railroad facilities.442 Article 557 3. Repurposing RRIF to Include Commuter Rail 557 One source argues that “[i]t is now time to transform RRIF into a source of financing for large commuter rail projects.”443 Statutes 559 E. Railway–Highway Crossings Program 559 1. Funding 559 The purpose of the Railway–Highway Crossings Program is to reduce the number of injuries and fatalities at public grade crossings.444 441 45 U.S.C. § 821, et seq. (2014) and 49 C.F.R. § 260, et seq. (2014). 442 45 U.S.C. §§ 822(b)(1)(A)-(C) (2014); 49 C.F.R. §§ 260.5(a)(1)-(3) (2014). 443 Barney A. Allison, Perspective: Refining RRIF to Include Commuter Rail (Jan. 15, 2014), available at http://www.railwayage.com/index.php/passenger/commuter-regional/perspective-refining-rrif-to-include- commuter-rail.html?channel=56 (last accessed Mar. 31, 2015). 444 Federal Highway Administration, Railway–Highway Crossings Program Fact-Sheet, available at https://www.fhwa.dot.gov/map21/factsheets/rhc.cfm (last accessed Mar. 31, 2015); MAP-21 § 1519, 23 U.S.C. § 130 (2014).