What's non-negotiable and what's at risk

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Under the cover of the appointment of Paul Kirk as the US Senator from Massachusetts and the mess created by an email from the Commonwealth’s Secretary of Education regarding a charter school approval came a huge story. The state, after years and years of talk, will take over CSX rail lines between Framingham and Worcester, and between Taunton and Fall River/New Bedford.

First, this is overall a very good thing. Murray’s announcement at a Greater Boston Chamber breakfast helps move the state’s transportation infrastructure ahead in some very positive ways. More frequent commuter rail service between Boston and Worcester is a no-brainer that previous administrations did not get done. Also, the state’s takeover of Worcester line will allow for changes in how the state moves freight.

As part of the accelerated bridge repair effort that the Governor undertook over a year ago, with Pioneer support, we can now make changes to allow double stacked freight cars to reach Boston. We can also rework Boston’s main freight rail depot, the Beacon Park Yard. Other changes, such as thinking through the creation of additional freight rail yards, will need lots of vetting, lots of public meetings and clarity from the state as it develops its evaluation of the Commonwealth’s freight and rail transportation systems.

Couple of lessons. What may seem non-negotiable is, after all, negotiable. Second, the state is often more comfortable putting authorities at risk than actual executive agencies. It’s this point about risk that is the dark cloud in this sunny story. Start with Noah Bierman’s report, which noted in regard to the T’s projected expansion of commuter service from Worcester:

The liability question was significant because CSX will continue to run freight trains along the track — even after the state takes ownership — and the company had been demanding complete immunity from lawsuits, even if its engineers were responsible for crashes. CSX has had that immunity in Massachusetts since a 1994 agreement was signed to let the T use the tracks, but Murray has insisted the protection put taxpayers at too much risk of paying millions of dollars on behalf of a private company.

Under the compromise announced today, CSX will pay the MBTA $500,000 a year toward the cost of its overall legal insurance and it agrees to pay the T’s $7.5 million deductible if its employees are found “clearly at fault because of willful misconduct.” State law caps train crash-related lawsuit payments against the T at $75 million.

Private civil lawyers say taxpayers could still end up paying for CSX negligence that does not meet the higher legal standard of “willful misconduct.”

“Undeniably, it’s exposing the MBTA, and therefore the Commonwealth, to more liability,” said Jeffrey Catalano, secretary of the Massachusetts Bar Association, who is suing CSX and the MBTA over a 2005 death on another part of the tracks. “It’s challenging to establish willful misconduct.”

The second risk is related to the long-discussed rail link to New Bedford. Charis Anderson of the New Bedford Standard-Times reports that in his announcement LG Tim Murray, who was the central state actor in the deal,

called the deal with CSX “a concrete and fundamental” step toward bringing commuter rail to SouthCoast.

The South Coast Rail project is a $1.4 billion plan to bring commuter rail to New Bedford and Fall River by 2016.

Neither a route — the options are rail through Attleboro, rail through Stoughton or rapid bus service — nor a funding source has been identified yet.

While I know how strongly the good people in New Bedford and Fall River feel about the need for this line. And, yes, on the tracks between Taunton and NB and FR, freight will also be carried. But the numbers on commuters is just so darn low.

As Charis notes:

The state recently submitted an application for $71.4 million in federal funding through the Transportation Investment Generating Economic Recovery Discretionary Grant program, which will disburse $1.5 billion for surface transportation projects.

That’s great but with or without federal money (which folks should be reminded is not some sort of different currency… it does mean debt), the project just doesn’t make sense. The long-term costs to the T will not be at any reasonable percentage recoverable.

We just keep digging the T’s hole deeper. No, the Big Dig culture has not come to an end. We have just shifted the target.