It’s #23 on his list of emergency and national security projects. Oh, what a dilemma for Maryland liberals!
In the wake of District Court Judge’s Richard Leon’s decision that the Purple Line Final Environmental Impact Study (FEIS) violated the National Environmental Policy Act (NEPA) by failing to take into account ongoing Metro problems in their ridership estimates, the defendants have several different options.
First, defendants can produce the Supplemental Environmental Impact Study (SEIS) required by the District Court. According to the Maryland Transit Administration (MTA), this would set the project back by six months and could unravel the public-private partnership. I suspect that this is hyperbole and that MTA would manage to do it more quickly, though the study would need to be substantial enough to satisfy Judge Leon.
Alternatively, the defendants can appeal. Maryland Secretary of Transportation Pete Rahn has said that Maryland will appeal the ruling. Except that the decision about any appeal rests with the Federal Transit Administration (FTA) and the Justice Department, as the federal government is the defendant in the lawsuit.
As a first step towards any appeal, the federal government would need to seek a stay of Judge Leon’s ruling. The decision on any request for a stay would be a critical moment. If appellants win their request, the Purple Line could continue to proceed even as the appeal moves forward.
In order to receive a stay, the federal government would like have to show substantial, irreparable harm from a delay and the appellate court would have to deem them likely to win their appeal. In my view, the first condition would not be hard to demonstrate. The second point also strikes me as winnable, if only because NEPA suits tend to fail. But I’m not a lawyer–I don’t even play one on TV–and the Judge’s decision increases uncertainty.
Whether they are granted a stay or not, MTA and FTA would most likely wisely start to produce an SEIS so that they are prepared regardless of the outcome of the appeal. If FTA wins an appeal, they won’t need it but the money is small beans in comparison to the overall cost of the project. The appeals process could well take longer to conclude than an SEIS.
Regardless of the outcome, Judge Leon’s decision has highlighted MTA’s flat unwillingness to produce information on how it calculated Purple Line ridership. In effect, this biased and politicized agency is saying “trust me” to the public on this enormously expensive project–eerily reminiscent of Donald Trump’s “believe me.” Even the ardently pro-PL Washington Post acknowledged this fundamental issue in its editorial decrying the decision:
Granted, Maryland transit officials have not been sufficiently transparent about how they arrived at ridership numbers. And if their estimates for the Purple Line fall short of forecasts, it could prompt the state to raid other revenue sources to pay off the project’s construction debt.
Additionally, Purple Line advocates are in the uncomfortable position of explaining (1) their utter faith that Metro ridership will rise even though it has declined for several years despite strong regional growth, (2) why we should believe that the trend toward telecommuting and biking, which they use to explain the decline, will cease, and (3) why Metro’s deep problems will be solved anytime soon, despite the recent derailment of the brand new Silver Line.
Today, D.C. District Court Judge Richard Leon issued his opinion in the case challenging the Environmental Impact Study (EIS) for the Purple Line light-rail project. The nub of the ruling is that the Federal Transit Administration (FTA) was “arbitrary and capricious” in its failure to demand a reexamination of the impact of declining Metro ridership on projections of future Purple Line ridership.
In plainer English, the judge thinks that Metro’s continuing failures could well mean that the Purple Line will carry significantly fewer people than projected–a claim difficult to examine as the State has kept the methodology for estimating ridership a closely held secret.
In the legal battle, the State argued unconvincingly that the Purple Line is unaffected by Metro as it is a different mode even as it claimed in the EIS that the Purple Line is needed to connect people to Metro. Seriously, this was the State’s claim (see p. 6 of the opinion).
The ruling was a surprise because winning a case under the National Environmental Policy Act (NEPA) is difficult. As the Court mentioned in the opinion, the scope of review is “narrow” and “a court is not to substitute its judgment for that of the agency.”
According to the Maryland Transit Administration (MTA), this result should delay the Purple Line:
[D]uring a June 15 hearing in the case, lawyers for the MTA and federal government said redoing the ridership forecasts would push back the project by six months and could unravel its $5.6-billion, 36-year public-private partnership.
In a subsequent court filing, lawyers for the Maryland Attorney General’s Office said having to redo the ridership forecasts “would be profoundly disruptive and could jeopardize the Purple Line project” because it could “have cascading consequences on the project schedule and financing arrangements.”
As MTA has so many times, I suspect it will change its tune in light of the decision and come up with an SEIS more quickly, so I doubt very much it will kill the project. Nevertheless, the irony remains that the proponents favor the project on environmental grounds. Yet the Court has delayed the Purple Line for failure to comply with environmental law.
To be continued.
The first Purple Line associated development project is going up and –surprise–is about development rather than transit-oriented development. At Chevy Chase Lake, EYA is building “62 stately” “luxury elevator townhomes” that start at $1.5 million. All will have two car garages.
Why the two car garages if everyone is going to be riding the Purple Line? Unless you think elevators count, that sure doesn’t sound like transit-oriented development, and surely places into question claims that ridership of people who live near Purple Line stations will be unusually high.
Despite the claims that the Purple Line would increase affordable housing in Chevy Chase, even as quite a few existing affordable housing units get knocked down, this development is not about that goal either. I suppose one can make the trickle-down development argument that increasing supply will lower the price–not one usually associated with progressives who support the project. But we could have done that without billions on the Purple Line.
What is this really about? Thanks to our public subsidy, the owners and developers of the land can build more and make a tidy profit on the roughly $100 million for which they intend to sell the units, which will be valued for their close-in location to DC, proximity to Bethesda and Silver Spring and good school district more than the pricey Purple Line. Accompanied by some shops, I imagine it will be a very nice place to live.
Attracting more wealthy taxpayers and raising the value of the land will also increase the County tax base–good for the County and its economic health. The irony, of course, is that in the future many of the same people who supported the Purple Line as a “social justice” measure will use undoubtedly use this development as an example of the growing economic divide in the County even though the policies they supported made this happen.
In the wake of yesterday’s blue skies Metro shutdown, the Maryland Public Policy Institute says it’s time to “end Metrorail”:
The closure will prompt yet another round of calls for increased government funding of the system. But instead of forcing federal, Maryland, Virginia, and D.C. taxpayers—most of whom scarcely use the rail system—to further subsidize Metro and its riders, public leaders should be discussing how to wind down and ultimately close the failed transit system. . . .
Dauntingly, Metrorail is about to face enormous new expenses. The core of the system is reaching the end of its 40-year functional life. WMATA officials can try to nurse it along, but that will be costly and riders will face many more disruptions like today; ultimately, costly and environmentally damaging reconstruction will be needed. And after all that expense, the system will still be a high-cost, low-capacity, inflexible failure.
The Maryland Public Policy Institute is the think tank arm of the Hogan administration with Hogan serving as an Emeritus Director of the group along with former Gov. Bob Ehrlich. Hogan’s brain trust proposes that we shut Metro even as Hogan moves forward to build the Purple Line to connect its defunct branches.
Beyond its modest proposal, the piece raises the issue of how Hogan plans to help fix Metro and to cover the State’s share of the ever increasing costs of fixing its aging and ailing infrastructure. So far, the Governor and the General Assembly, as well as Montgomery and Prince George’s Counties, have been silent on this question.
This lack of direction continues even as riders long ago grew tired of the decline of the system with no sign of management or leadership able to address the serious problems. The Purple Line increases the pressure, as its commits the State to a large but ultimately unknowable sum of money (estimated at $5.6 billion). Conveniently, the bill comes due only after Hogan has long skedaddled out of the Governor’s chair.
As explained previously on 7S, Prince George’s County Executive Rushern Baker played hard to get on ponying up additional funds for the Purple Line in an effort to set up his County to extract concessions in price and other matters. Turns out he succeeded at both:
Prince George’s County has tentatively agreed to commit an additional $20 million to finance the Purple Line in exchange for assurances from state transportation officials that construction will begin within its borders and the command center be built there, a top aide to County Executive Rushern L. Baker III said Thursday. . . .
“I agree to accomplish each of these requests,” [Transportation Secretary] Rahn replied in an Aug. 12 letter to Baker.
Montgomery agreed to pay $40 million in additional costs and received nothing.
Baker negotiated a better deal than Montgomery County Executive Ike Leggett or Council President George Leventhal. His County will pay half as much in additional costs, obtain more, and still have the light-rail project he supported move forward.
Surprising many, Gov. Larry Hogan announced that he plans to move forward with the Purple Line. Before analyzing this decision, I want to congratulate my many friends who have supported the project on this major step forward. While it’s not a done deal, my assumption at this point is that it will get built.
Gov. Hogan has set this up nicely to flummox his opponents. He will tell his supporters that he has substantially reduced the cost and made heavily Democratic Montgomery and Prince George’s pay more for it. If they cannot come up with the money, he can shift the blame for Purple Line failure on to them.
Cost Down Less and Borrowing Up More Than Advertised
The Governor has adopted the Orwellian speak surrounding the project of referring to the money that the concessionaire (i.e. the project builders) will spend as the “private sector contribution.” Of course, it’s not a contribution but money that the State will be paying back with interest for many, many years.
A sizable chunk of the cost reductions touted by the Governor are not really reductions but additional money being put on the Giant Purple Credit Card. It’s analogous to claiming that you saved money on buying your house because you took out a bigger mortgage.
Prince George’s County Negotiates
While Montgomery seems happy to pony up another $50 million for the Purple Line, Prince George’s has been much more hesitant. But Prince George’s response looks less like a flat no than the savvy opening gambit in a negotiation.
In their eagerness for the project, Montgomery officials may have left the County in an exposed position in which we’ll end up paying a lot more than our neighbors. Is Montgomery willing to raise its contribution further? If so, how much? If others stand firm, will Prince George’s pay?
Montgomery County Pays–But How?
How does Montgomery plan to find the extra $50 million? County Executive Leggett and Councilmember Floreen said that we could issue bonds but bonds have to be paid back. As County borrowing capacity is limited, at least if it wants to maintain its credit rating, this will reduce our ability to borrow for other purposes.
As a result, Montgomery will have to cut spending in other areas. What will the cuts be? Will the County maintain its commitment to build the bike path next to the Purple Line? Alternatively, will the County try to raise taxes even though income taxes are at the legal max and raising the property tax above the Charter limit would require a unanimous Council vote?
The County could create a special taxing district on new development in the Purple Line area. It will be interesting to see if the Chevy Chase Land Company is willing to start paying substantial sums towards this project which will benefit it immensely. Or will it continue to shift costs on to the rest of us.
Who Pay for Cost Increases?
If costs rise after the contract is awarded to the concessionaire–either due to changes requested by the State or provisions within the contract with price flexibility (e.g. related to energy prices)–who will pay for the inevitable cost increases? Will it fall on the State or on Montgomery and Prince George’s County?
These are tough questions, which is why many smart proponents of the project have been more cautiously celebratory than might be expected and carefully sorting through the Governor’s new proposal. And now that the project is moving forward, County officials will have to begin really answering them.
Robert McCartney in the Washington Post broke the story on Wednesday that Secretary of Transportation Pete Rahn has recommend building the Purple Line:
Rahn urged his boss to go ahead with the light-rail project in the Washington suburbs providing that the price tag is trimmed by about $300 million from the estimated $2.45 billion cost and that Montgomery and Prince George’s counties pay a bigger share, one of the officials said. Both spoke on the condition of anonymity because while they have been briefed on Rahn’s action, they were not authorized to speak publicly about it.
I tend to give credence to the story because of the response from the Governor’s office:
Hogan spokesman Doug Mayer said he could not confirm that Rahn had urged the governor to back a less-costly version of the project, rather than postpone it or kill it outright.
“As far as I know, no final recommendations have been made to the governor,” Mayer said. He declined to say whether Rahn had delivered a preliminary judgment.
If Rahn had yet to deliver his judgement or it was negative, wouldn’t Hogan’s spokesman issue a flat denial instead of a “no comment” in response to these questions?
Assuming that’s the case, the story places Hogan in an awkward position. If Hogan moves forward with the project, he looks weak and pushed into it by Rahn, despite the strong opposition of many Republicans. Alternatively, if Hogan nixes it, he looks like he has ignored the advice of the Secretary he charged with it and transit advocates will beat him over the head about it.
Either way, Hogan doesn’t look good. Rahn also cannot be happy that the press got a hold of this story. It portrays him as the indiscreet member of administration that has had strong message discipline. It also doesn’t aid his future job prospects, as people don’t want to hire someone who speaks out of school.
Side Note: Was Montgomery Council President George Leventhal, quoted later in the article as confirming the story, the source of the leak despite his protestations that:
I really like the secretary, and I hope I haven’t said anything that gets him in trouble. He was abundantly clear that he supports the project, he wants to build the project, and he was getting ready to make his recommendation.”
After all, it wouldn’t be the first time that someone was quoted as confirming their own “anonymous” leak.
In a surprise move, Gov. Larry Hogan announced that he is ready to move full-speed ahead on the light-rail Purple Line that will travel from Bethesda to New Carrollton in suburban Washington. The Baltimore Sun reported:
“Working closely with Transportation Secretary Pete Rahn, we have discovered the means to reduce costs substantially,” said Gov. Hogan at an early morning press conference. “If we eliminate frills, I am now confident that it can be built in a cost-effective manner that will bring business to Maryland.”
Hogan explained that a major barrier has always been the price of the light-rail cars, which are expensive and have to be imported from Ostrava in the Czech Republic:
We have cut unnecessary extras. Seats provide no benefit to the taxpayer, so they have been eliminated from the redesigned trains. Indeed, we have now also done away with walls and the ceiling to go with a sleek, modern flatbed design.
Purple Line Project Manager Mike Madden applauded the move:
I appreciate the governor’s support and leadership on the project. Eliminating not just doors but walls will make it easier to board and to exit the train, thus reducing time spent at stations and increasing speed, resulting in an estimated increase in ridership of 31.7%.
When asked for the documentation on the increased ridership, Madden described the information as “proprietary” but also reassured the public on their accuracy: “They were calculated by the same high-quality experts who designed the Silver Spring Transit Center that will open later this year.”
Hogan’s decision to simplify cars was hailed by former Action Committee for Transit President Ben Ross:
This new design is in touch with the simplified lifestyle preferred by Millennials. Let’s face it: seats are emblematic of the bourgeois Lexus lifestyle. I’m glad that Maryland and Montgomery County have said “yes” to our smart growth future by embracing open plan light-rail.
Similarly, Montgomery Council President George Leventhal congratulated Hogan on WAMU for “finally following his lead” and said “The open plan is an excellent forward-thinking idea. I think of it as a moving Capital Crescent Trail. It will be a first-class system.”
Not all of Leventhal’s colleagues were so sanguine. Council Vice Chair Nancy Floreen said to the Washington Post:
Heck, I never thought the Governor would invest so much money in areas that will never vote for him. Now, I’ll have to come up with all the money that Montgomery County promised when I’m Council President next year. I don’t see why I shouldn’t just run for Congress instead.
But Robert Thomson, better known as Dr. Gridlock, reassured the public in an online Post discussion: “I have every confidence that the Purple Line will light a fire under small business in Langley Park just as the DC Streetcar has sparked long quiet H Street.”
Former Carroll County Commissioner Republican Robin Frazier denounced the move. Appearing at a “Help Save Maryland” rally, she said that it would only help “homosexuals and illegal aliens get around so that they can use bathrooms in more places.”
Where the Purple Line Would Cross Connecticut
In a meeting with the Montgomery County delegation to the House of Delegates, MTA Executive Director of Transit Development and Delivery Henry Kay cited the Connecticut Avenue overpass as an example of the type of cuts that a bidder for the project might make in order to reduce costs.
Gov. Larry Hogan has asked the bidders for the project to find ways to reduce the cost of the proposed light-rail project. However, the directions exclude cutting the length of the line or converting it to a bus-rapid transit (BRT) system. As a result, expensive features like the overpass remain one of the few ways to cut costs.
The change would greatly worsen traffic on Connecticut Ave., already bumper-to-bumper during rush hour. Massive new development slated around the stop at Chevy Chase Lake would exacerbate the problem, as the great majority of new residents along with visitors to commercial properties would still drive.
The change would represent a major loss for the Washington Area Bicyclist Association, which has lobbied heavily against any plan to eliminate the overpass in favor of an at-grade crossing. WABA sold the Purple Line to its membership as improving bike travel. The change would mean that not only would there be no fast crossing at Connecticut. Additionally, the current underground bike crossing at Wisconsin Ave. will be eliminated even though the rail line will remain below ground.