By R.D. Fry
More information sent to my friends (patriots) who are trying to stop their city from joining a regional council.
Tuesday, October 09, 2012
RE: Mandated involvement with MPOs.
Dear XXXXX,
This is in follow up to our prior discussions regarding the City of Manhattan considering various “maps” related to it joining a Regional Planning Council as “mandated” by federal law.
XXXX indicated in her e-mail of Wednesday, October 3, 2012 9:16 AM that representations were made to you and / or her and/ or publicly “by the city lawyer to the city manager” that the applicable federal law was “23 USC 134” and / or “CFR Title 450.”
Applicable Law
I have reviewed 23 USC Chapter 1 Federal –Aid Highways §134 Metropolitan transportation planning and §135 Statewide transportation planning, 23 USC Chapter 2 Other Highways, 49 USC Chapter 53 Public Transportation § 5303 Metropolitan transportation planning, § 5304 Statewide transportation planning and 23 CFR Part 450.
Federal Regulatory Scheme for Transportation
These laws make up a detailed, comprehensive and complex federal regulatory scheme to address national, state and local transportations concerns of Congress. (In reality it is an excuse and cover to impose Sustainable Development upon the states and local governments by their own hand and to set up regional governmental councils.)
There are no Mandates for the State / Local Governments to Participate in the Programs or MPOs
The position that the City’s or a County’s involvement in such a federal planning scheme is mandated by federal law is quite frankly a farce. Those that have represented this to the public or to elected officials are either willfully ignorant or being disingenuous.
There is “mandatory” language in 23 USC §134(d) (1) (A) (B) as follows:
“1. In general – To carry out the transportation planning process required by this section, a metropolitan planning organization shall be designated for each urbanized area with a population of more than 50,000 individuals…”
“(A) by agreement between the Governor and units of general purpose local government that together represent at least 75 percent of the affected population (including the largest incorporated city (based on population) as named by the Bureau of the Census); or
(B) in accordance with procedures established by applicable State or local law.”
The term “shall” as used is a statute is generally considered to indicate a mandatory provision.
On first blush this provision says that a state has to set up a “metropolitan planning organization” (MPO) and there are two ways for it do so: either by an agreement with the Governor and local governments or in accordance with “procedures established by applicable State or local law.”
Kansas does have an older general statute allowing for agreements of mutual cooperation but it is certainly not mandatory.
These statutes go on ad nausea providing the details for who, what when and how such “planning” will be conducted and updated. The bottom line is that there is no substantive discretion by the State / MPO as to the “planning” process. That point is not relevant to my analysis but you should be aware of what is going on.
I did not find a penalty clause for non-compliance except for a provision which allowed the federal Secretary of Transportation to withhold a percentage of certain funds from the MPO in the event a “certified” project was not selected for action by the MPO.
As you will recall the Affordable Care Act (ACA) (a.k.a. “Obama Care”) likewise had a provision that provided that the states “shall” implement Obama care and insurance exchanges. Federal money was made available at least to some states that commenced to implement Obama Care
However, the ACA did not have a penalty provision to be applied against the states that did not comply. Instead the ACA provided that if the states did not comply by a specific time the federal government would implement Obama Care and insurance exchanges within such states.
Constitutional Prohibitions on Federal Mandates on States’ Participation in Federal Programs
Frankly, it does not matter if there had been a penalty clause directed at non-complying states in one or more of these statues. Federal constitutional law is very clear in this area. The federal government may not “compel the States to enact or enforce a federal regulatory program…” or participate in a federal regulatory scheme. New York vs. Unities States, 505 U.S. 114 (1992). Nor may the federal government avoid such prohibition by “conscripting the States’ officers directly.” Printz v. United States, 521 U.S. 898 (1996#.
These laws comprise just exactly that: a federal regulatory scheme. The creation and operation of MPO are part of such federal regulatory scheme.
“States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government…. The Constitution instead ‘leaves to the several States a residuary and inviolable sovereignty,’… reserved explicitly to the States by the Tenth Amendment. Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.”
New York vs. Unities States, 505 U.S. 114, 188 #1992#.
Constitutionally Permissible Means for the
Federal Government Securing State Cooperation
The federal government may give a state the option of regulating in an area in which the federal government may pre-empt the state regulation of the issue all together. This was the pretext of Obama Care once everyone understood the statute was not mandatory on the states. You will recall that Governor Brownback at one point tried to say the ACA was mandatory on the states i.e., required the states to take action.
The federal government may also condition receipt of “federal funds” upon a state agreeing to regulate in a certain fashion as long as the funds are tied to the subject of the appropriations and that the amount withheld is not great enough to be “coercive” among other restriction. But, even though the federal government may “encourage” a state to act the federal government may not compel the state to act on a given issue.
Issues with the Federal Government’s Transportation Scheme
The planning required by the sum of these transportation laws will necessarily involve issues which I believe are beyond a legitimate federal interest and go into the “core sovereignty” of the states including in the area of “land use planning” and other “comprehensive planning”. If I am correct the federal government may not itself involve itself in such without the voluntary cooperation by the state and local governments.
This scheme also appears to have a fatal flaw. It by its terms requires the involvement by the state and local governments. If the state and local governments do not cooperate there are no provisions that would allow the federal government to move ahead to implement this scheme. This is a significant difference with the Obama Care law.
Guarantee Clause of the Constitution
Also I have a very serious concern such statutes have implications for the Guarantee Clause of the Constitution. The Supreme Court has continuously based its analysis as to the inability of the federal government to mandate the states participation in or administrating of federal schemes on the preservation of “dual sovereignty” and the governments’ accountability to the people. The cases I have seen only dealt with direct action by the governments.
However, what we have under the MPO’s is the creation of a faux or quasi-governmental body which is virtually accountable to no one and lets both the federal and the state officials off the hook for the action by the MPO. A “policy board” of appointed persons, though some may be elected to other offices, is not a representative republican government. It is a “soviet”. This may be the best example of a Guarantee Clause claim of which I am aware.
Sustainable Development and a Taste of Things to Come
Under 23 CFR Part 450 one of the issues that will be addressed by the MPOs / RPO is Transportation control measures #TCM#. This is defined as follows:
Transportation control measure #TCM) means any measure that is specifically identified and committed to in the applicable SIP that is either one of the types listed in section 108 of the Clean Air Act or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the above, vehicle technology-based, fuel-based, and maintenance-based measures that control the emissions from vehicles under fixed traffic conditions are not TCMs.
(Emphasis added.#
23 CFR Part 450 § 450.104 Definitions.
To get a flavor for what is really meant by a TCM and its underlying purpose we need only look to a 1995 presentation done at a Sierra Club event.
“Metropolitan planning organizations #MPO) and air quality management districts (AQMD) are looking to transportation control measures (TCM) for solutions to worsening traffic and troublesome air pollution. TCMs come in many forms, from reducing driving by increasing its cost, to better transit, to trip-shortening land use changes, to employer efforts, to reducing emissions by lowering emission limits or improving traffic flow….”
“I want to suggest that there are three major reasons Americans drive more than our peers in Europe and Japan. First, we heavily subsidize auto and truck use. Very credible studies…calculate total subsidies of $3.00 to $7.00 per gallon of gas.1 Every time we pump in a $1.25 gallon of gas we also pump in $3 to $7 in subsidies….”
“Where do these subsidies occur? They include the costs of road repair, policing and motorist protection not paid for by the gas tax; “free” parking; uninsured accidents; noise; vibration damage; pollution damage to human health, crops and structures; global warming; petroleum subsidies; policing the petroleum supply line, or wars in the Mid-East; and congestion….”
“Even when drivers pay some of these subsidies, their costs are not directly related to how much they drive, and so are not incentives to drive less. We could take cars off welfare by charging the full cost of parking, increasing gas taxes, instituting pay-at-the-pump insurance, smog fees and congestion pricing on roads. These smell suspiciously like some widely-proposed TCMs.”
“The basic question for planners is–what do we really want to accomplish: moving more vehicles–which planners term mobility, or facilitating people getting to their destinations–which we call accessibility? If you can walk to the market or telecommute to work you have accessibility but no mobility! Aren’t we now providing mobility, albeit often congested mobility, to those with cars, and denying it to those who can’t afford cars, or are young or old, or who just don’t want to drive? Wouldn’t TCMs which give accessibility without moving so many cars be effective, and more equitable?
(Emphasis added.#
Dr. John Holtzclaw, Forging Transportation Control Measures to Reduce Driving and Clear the Air , Sierra Club #2/27-28/1995# (Presented to the Transportation and Air Quality Conformity Conference.#
https://www.sierraclub.org/sprawl/transportation/control.asp
This is pure Sustainable Development. The above is the “vision” of the “Sustainable Cities” with their ultra-high density, multiple use zoning without private automobiles i.e. “pedestrian friendly”, “walkable” communities. You will notice the “social equity” argument that is being made as well as the economic and most importantly the environmental aspects of TCMs. Yes the “three Es” of Sustainable Development are right there.
The proposal by the Sierra Club was to increase gasoline taxes by $3.00 to $7.00 per gallon #although this was 1995 so it is probably more) and charge a per mile use fee for driving a private vehicle. Of course the use fee was made possible by the federal requirement for GPS / black box features on all vehicles sold in the U.S. by 2015.
This is not theoretical it is the reality of what is going on now with some MPOs.
I am in the process of working up an in-depth and detailed paper on this issue including the legal aspects. However, I have no doubts about my position on the subject federal laws and what it represents.
Conclusion
The above federal laws, some of which call for the creation of MPOs, are a comprehensive and complex federal transportation scheme. Such do not “mandate” or “require” the states or local governments involvement by their terms. Such is academic however, since the federal government may not under the Constitutional require the states to participate in, implement or administrate a federal program.
I believe, in addition to its other failings, the aspect of this federal transportation scheme which calls for setting up a quasi-governmental “policy board” #MPO) likely violates the Guarantee Clause of the Constitution.
The good news may be that there are no provisions in these statutes that would provide a means for the federal government to implement this scheme on its own i.e., it necessarily requires the state and local governments to be involved. As the federal government cannot require the state and local governments to be involved if we can stop them from voluntarily participating we can stop the implementation of this Sustainable Development nightmare.
I am in the process of preparing a much more comprehensive and detailed paper on the various aspects of this federal transportation scheme including its impediments. I will forward such on to you when I complete it.
And that is what I have to say about that.
The views and opinions expressed in this post are solely those of the author. These views and opinions do not represent those of SalinaPost.com, and/or any/all contributors to this site.