In a post yesterday, we discussed the legal issues surrounding Florida Governor Rick Scott's announcement that Florida would abandon its high speed rail project, almost entirely funded by the federal government. In a February 16 letter to Transportation Secretary Ray LaHood (PDF), Scott wrote "Florida will not move forward with the high speed rail project from Orlando to Tampa."
In the linked post, we explored the possible basis and authority Scott would have for making such a declaration. My review of Florida law indicated that, given the line item veto power Florida governors possess, Scott could make his statement stick. Not so fast say 26 Florida state senators, who wrote their own letter to LaHood on February 17:
[A] veto-proof majority of the Florida Senate rebuked Scott in a letter that urged the federal government to give the state the money Scott has refused. [. . . “The bottom line is that he can’t reject this money: It was already approved by another Legislature and another governor,” said Simmons, R-Altamonte Springs. “It’s like trying to veto a bill after it becomes law. It’s too late.”
Yesterday I pointed out that it is not clear what monies Scott is purporting to reject. If in fact the money was from the stimulus bill, then Governor Charlie Crist already accepted the funds on behalf of Florida. Can Scott revoke this acceptance? And what of the Florida legislature and their expenditures in compliance with the federal grant? Can these be undone? The question is - on this issue who speaks for Florida? Let's explore on the flip.
According to the February 17, 2011 letter from the Florida state senators to Secretary LaHood, Governor Crist's acceptance coupled with actions taken by the Florida legislature make Florida's acceptance of the federal HSR grant a closed matter, not reversible by Governor Scott:
Dear Secretary LaHood, In December of 2009, members of the Florida Legislature voted to create the Florida Rail Enterprise and the Florida Statewide Passenger Rail Commission. The enterprise could have the ability (pursuant to s. 341.822, Florida Statutes) to independently move forward ith Florida’s plans for high speed rail.
Does the creation of these entities by 2009 legislation mean that the repeal is required to reverse Florida's acceptance of the federal HSR funds? It depends, in my view. What does it depend upon? The federal funding legislation. Specifically, who was given control of the federal funds. In yesterday's post, AdamB provided this explanation:
[B]asically through a variety of legislation Congress created this program, and allowed the Federal Railway Administration to review grant applications to figure out who got what. Here's the ARRA section:
CAPITAL ASSISTANCE FOR HIGH SPEED RAIL CORRIDORS AND INTERCITY PASSENGER RAIL SERVICE
For an additional amount for section 501 of Public Law 110-432 and discretionary grants to States to pay for the cost of projects described in paragraphs (2)(A) and (2)(B) of section 24401 of title 49, United States Code, subsection (b) of section 24105 of such title, $8,000,000,000, to remain available through September 30, 2012: Provided, That the Secretary of Transportation shall give priority to projects that support the development of intercity high speed rail service: Provided further, That within 60 days of the enactment of this Act, the Secretary shall submit to the House and Senate Committees on Appropriations a strategic plan that describes how the Secretary will use the funding provided under this heading to improve and deploy high speed passenger rail systems: Provided further, That within 120 days of enactment of this Act, the Secretary shall issue interim guidance to applicants covering grant terms, conditions, and procedures until final regulations are issued: Provided further, That such interim guidance shall provide separate instructions for the high speed rail corridor program, capital assistance for intercity passenger rail service grants, and congestion grants: Provided further, That the Secretary shall waive the requirement that a project conducted using funds provided under this heading be in a State rail plan developed under chapter 227 of title 49, United States Code: Provided further, That the Federal share payable of the costs for which a grant is made under this heading shall be, at the option of the recipient, up to 100 percent: Provided further, That projects conducted using funds provided under this heading must comply with the requirements of subchapter IV of chapter 31 of title 40, United States Code: Provided further, That section 24405 of title 49, United States Code, shall apply to funds provided under this heading: Provided further, That the Administrator of the Federal Railroad Administration may retain up to one-quarter of 1 percent of the funds provided under this heading to fund the award and oversight by the Administrator of grants made under this heading, and funds retained for said purposes shall remain available through September 30, 2014.
The emphasis is mine. The devils here, is in the details. I believe that the grant was awarded to the Florida Department of Transportation, which is under the control of the Governor. However, the language in the law appears to provide LaHood great latitude and discretion. There appears to be no legal impediment to LaHood's providing funds instead to the entity created by the Florida legislature in December 2009. The difficulties appear to be more practical and political:
“Our enemy at this point,” [Florida US Senator Bill] Nelson said, “is time.” LaHood, a former Republican congressman appointed by President Barack Obama, is a staunch proponent of Florida’s project but could only grant a one week reprieve. A spokeswoman for LaHood said the federal stimulus money was intended to be put to work as quickly as possible.
If the proponents of the Florida HSR project can put together a credible plan for administering the federal funds, it is my view that LaHood can grant the funds to Florida, Scott's announcement notwithstanding. The one week deadline is a political one, not a legal one. From the federal funding legislation it is clear that LaHood will have these monies available until September 30, 2012. But for obvious political reasons, the window is much much shorter than that.
So the answer to the question of who speaks for Florida on THIS matter appears to be "Florida has already spoken." Rick Scott may in fact sabotage the project by creating practical difficulties too difficult to overcome, but not because he has the legal right to speak for Florida on the matter. Rather, Scott's power is his ability as Governor to undermine the project.
Instead of announcing that Florida would not go forward with the project, what Scott should have announced is that he was going to do all in his power to undermine a project that Florida had legally agreed it would do. He also might want to announce how Florida is going to pay back the monies it already received for the project.