Does Gov. Scott Have The Authority to Kill High Speed Rail?

by Kemp Brinson

Gov. Scott announced that he has decided to kill the proposed high speed rail line between Orlando and Tampa, which would have passed through Polk County. Does he have the authority to make a decision like this?

J.D. Alexander doesn’t think so.

A super-majority of the Florida Senate has at least implied that he might not.

It’s not an easy question to answer. On one hand, he is the chief executive of the state, with authority over the executive branch. On the other hand, the project was funded by the legislature last year and is managed by a specially created agency with some statutory authority. Who is correct?

Let’s begin by talking about “authority”? When we talk about authority, we are really talking about two different things, one of which I’ll call a “legal right”, and the other I’ll call “power” or “ability.”

If someone holds a gun to your head and demands money, he does not have the legal right to take it, but he clearly has the power and ability to do so. In the case of a criminal, the lack of a legal right is a problem, because there are people empowered to enforce the laws against him and punish him.

But in the case of Governor Scott, even if he lacks the legal right to kill high speed rail, there may or may not be anyone empowered to do anything about it.

The issue of whether he has the power or ability to kill the project, aside from the legal right to do so, is not a legal question. It is a political question — I cannot answer it. We will see whether he has the power or not based on what happens next. If the project does, in fact, go away, then obviously he had the power.

What about the legal right? Does Governor Scott have the legal right to kill high speed rail?

The Confusing Mess of Executive Authority to Reject High Speed Rail Funds

By statute, Florida created the Florida Rail Enterprise (the FRE) to create high speed rail in Florida. (Fla. Stat. sec. 341.8201 et seq.) The FRE was given specific powers by the legislature:

(1)The enterprise shall locate, plan, design, finance, construct, maintain, own, operate, administer, and manage the high-speed rail system in the state.
(2)(a)In addition to the powers granted to the department, the enterprise has full authority to exercise all powers granted to it under this chapter. Powers shall include, but are not limited to, the ability to plan, construct, maintain, repair, and operate a high-speed rail system, to acquire corridors, and to coordinate the development and operation of publicly funded passenger rail systems in the state.
(b)It is the express intention of ss. 341.8201-341.842 that the enterprise be authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the high-speed rail system; to expend funds to publicize, advertise, and promote the advantages of using the high-speed rail system and its facilities; and to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. (Fla. Stat. sec. 341.822).

This language, at least on the surface, appears to create a super-agency – one that operates at the pleasure of the legislature and not under the fiat of the governor. This is not at all clear, however, because the constitutional powers of the governor vest him with executive authority.

At the federal level, High Speed Rail was to be funded by a grant from the federal government under the American Recovery and Reinvestment Act of 2009, also known as “ARRA” or, more familiarly, “the stimulus.” ARRA authorized the U.S. Dept. of Transporation to award $8 billion in grants for high speed rail projects (text – see p. 94).

The FRE has submitted a couple of different applications for various aspects of the project. One of the grant applications asked for $1.124 billion, with the state to cover the remaining $281 million of the $1.404 billion total, but the total project cost is higher – I’ve seen $2.6 billion quoted. I think the balance is part of another application, but I am not certain. The $1.124 billion application was preliminarily approved.

Then, Ohio and Wisconsin decided not to move forward with their high speed rail projects, so the feds announced that an additional $342 million of the money for Ohio and Wisconsin would go to Florida. An official with the FRE was quoted as saying that this would have reduced the cost to the state to zero. (source) However, this may have been in error, because the latest information from the FRE indicates that this money did not reduce the amount the state intends to spend. (source)

In the ARRA (stimulus) funding process, the next step is for the state (or the FRE) and the U.S. DOT to enter into a grant agreement that sets forth the terms of the grant award. To the best of my knowledge, no fully executed grant agreements with Florida are available online. Presumably, the Florida Rail Enterprise has been in the process of negotiating these agreements. Apparently some money has been received from the federal government already — $66.7 million (source) — presumably a grant agreement is in place for that money.

The point of this lengthy explanation is simply to demonstrate that the funding mechanism is complicated, confusing, and document intensive. That’s one reason why it’s not so easy to figure this out.

In addition to creating the Florida Rail Enterprise and empowering it to act, the legislature funded it. In the 2010/2011 budget accountings, there is apparently about $300 million at the FRE’s disposal.  I tried to connect the dots to the actual appropriations bills and could not find that number anywhere. Other reports indicate that some of the money was appropriated and not spent in prior years and has rolled over.

To summarize:

1. The FRE may or may not be an independent agency outside the normal power of the governor to control.

2. The state or FRE may or may not have already executed written grant agreements with the U.S. DOT to accept high speed rail funding.

3. The state may have already accepted money from such grants, and may or may not have to pay it back if it backs out.

4. The legislature may or may not have already given FRE the entire amount required to completely fund the project.

5. The governor has the following job description, in part:

The governor shall take care that the laws be faithfully executed, commission all officers of the state and counties, and transact all necessary business with the officers of government. (Art. IV, Sec. 1, Fla. Const.)

So, does the governor have the authority to reject the federal money?

I haven’t the foggiest idea.

But it does raise this question: if the governor does, in fact, have the power to kill this, what is the check or balance on that power? If passing a law to create high speed rail, creating an independent agency to oversee it, passing a law funding that agency, having the agency apply for and receive federal money in support of that objective, and having the then-governor sign off on those applications is not enough to create something that a future governor can’t undue with a phone call to DC one morning, we need to seriously consider defining the powers of our chief executive a little better.