TRANSIT MEGA PROJECTS: LEGAL ISSUES
Suzanne Silverman, Adam Giuliano, Ayelet Hirschkorn, and Emily Eads, Kaplan Kirsch & Rockwell LLP, New York, NY; Christian Alexander, Emeka Ezekwamba, and Brandon Rattiner, Kaplan Kirsch & Rockwell LLP, Denver, CO; and Suyash Raiborde, Haynsworth Sinkler Boyd, P.A., Greenville, SC
I. INTRODUCTION
Transit mega projects present significant and, in some cases, unique legal challenges for the attorneys tasked with steering such projects from conception to completion, and through operations. The objective of this digest is to identify and analyze legal issues that have resulted from, or are related to, the implementation of transit mega projects. Drawing on general research and experience, as well as specific examples from five mega projects, this digest seeks to introduce attorneys to the special or legal issues that such mega projects face, and to provide considerations and potential solutions by way of examples from past projects.
The five projects relied on in particular are:1
- Colorado Eagle P3 Project;
- Transforming Rail in Virginia Initiative;
- The California High-Speed Rail Project;
- Sound Transit’s East Link Extension Project; and
- The Hudson-Bergen Light Rail Project.
Researching and explaining the legal issues that arise in transit mega projects is its own mega project. For purposes of this digest, “mega projects” are defined as projects with estimated total costs exceeding $1 billion.2 In this context, the $1 billion figure represents a subjective but still useful threshold. Experience indicates high cost often correlates with a high degree of complexity. The recent passage of the Infrastructure Investment and Jobs Act (IIJA)3 presents an opportunity to renew focus on the legal issues encountered by rail transit agencies specific to mega projects.
Each transit mega project presents its own unique story, and there are few characteristics that can be said to be categorically universal. Nevertheless, there are common characteristics often shared by these types of projects, and they provide a basis for a more systematic approach to understanding them. To conduct and present this research in a manageable manner, the researchers focused on a specific set of strategic themes, which are guided by common characteristics shared by most mega projects. For instance, the size of most mega projects often requires significant federal involvement and the application of federal standards and requirements. Furthermore, most transit mega projects are funded through the Federal Transit Administration’s Capital Investment Grants (CIG) program, although several other federal, state, and local funding sources may also be involved. Accordingly, this digest describes the role of federal funding and regulation—specifically Federal Transit Administration (FTA) funding requirements—while also noting the role of other federal agencies and private interests, and state and local laws where appropriate. In addition to FTA-funded projects, this digest also draws on other passenger rail mega projects funded by the Federal Railroad Administration (FRA). While detailed discussion of the themes is beyond the scope of this research, the researchers highlighted key issues and provided illustrations and context, while also pointing out further resources where appropriate.
This legal research digest is divided into four sections beyond the introduction.
Section II briefly provides an overview of the research approach.
Section III provides an overview and background of transit mega projects and their key characteristics, the federal role in these projects, common funding sources, and the profiles of the specific projects we researched.
Section IV discusses specific topics that are common to most mega projects including funding and financing, regulatory oversight and permitting, property acquisition, insurance and indemnification, coordination with public and private entities, and dispute resolution.
Section V concludes with a summary of the research findings and areas of future research for consideration.
II. RESEARCH APPROACH
A. Project Goal and Framing
The objective of TCRP LRD 60: Transit Mega Projects: Legal Issues was to produce a report of key legal issues that lawyers representing parties developing transit mega projects in the United States can consult for insight, issue framing, and problem-solving strategies. Accordingly, the researchers endeavored to investigate issues that apply uniquely to mega projects without losing the perspective of transit and transportation projects more generally. They focused on fixed guideway projects because most transit mega projects that were studied fell within that mode of transportation. Considering the breadth of issues that can arise in a transit mega project, this digest only addresses a few key legal issues for each identified topic. This
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1 The California High-Speed Rail and Transforming Rail in Virginia projects are not formal FTA transit projects. But, they are mega projects that offer critical insights into the inherent legal challenges faced by transit mega projects. Both projects were included in this digest after consultation with the TRB steering committee.
2See infra Section III for a further discussion of the use of the term mega projects in this digest.
3 Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429.
