This latter model has been embraced by cities such as London, Paris, Berlin, and Buenos Aires. Under a regional transit model, trains from New Jersey would pass through midtown Manhattan and continue onto Queens and Long Island or Upper Manhattan, the Bronx, and Westchester County. Trains originating in Long Island or upstate New York could do the opposite and pass through Manhattan on route to Newark, Secaucus, and the rest of New Jersey. These options are not exclusive: analysts have proposed different regional transit schemes, some which can be executed without new construction and others that would require substantial new building. For example, some through-running proposals would require a new tunnel between Penn Station and Grand Central Terminal, an expensive endeavor.4 But each proposal is consistent in agreeing that through-running trains in the New York metropolitan region could reduce congestion and create additional capacity in stations, eliminate the need for trains to turn around in valuable urban space, and provide for the ability of consumers to get to multiple locations within and outside of Manhattan’s midtown business district.5
Analysts are somewhat divided as to the viability of various throughrunning plans given technical challenges throughout New York’s various transit systems. To start, the LIRR, Metro-North Commuter Railroad (“Metro-North”), NJ Transit, and Amtrak use a wide variety of “rolling stock” (i.e., locomotives and train cars), trackways, and electrification methods.6 There is considerable debate among engineers as to the extent that these differences can be resolved without significant cost.7 Nevertheless, there have already been limited demonstrations that through-running is indeed a possibility in New York. As many of the articles on the topic point out, these demonstrations occur primarily during events enjoyed by both New Yorkers and New Jerseyans: professional football games. On home-game Sundays, Metro-North and NJ Transit combine operations to take Giants or Jets fans from Connecticut or Westchester County into New Jersey.8 In addition, although they do not stop at any other locations in New York City, Amtrak trains on the Northeast Regional, Vermonter, and Acela Express lines do through-run Penn Station to a wide range of east coast destinations. From an engineering standpoint, then, the question is not whether through-running is technically possible in New York, but rather how extensive through-running operations can be and at what cost they can be provided. This question is outside the scope of this Article, but as most of the analysts observe, there is an even greater challenge: a legal, structural, and political one.
New York’s transportation agencies are standalone entities with narrow geographic and legal authorities. Even agencies under the same umbrella — such as the LIRR and Metro-North, both part of the Metropolitan Transportation Authority (“MTA”) — have been notoriously reluctant to cooperate,9 let alone sufficiently integrated to execute a through-running plan. Meanwhile, the state of New Jersey runs NJ Transit, and the Port Authority of New York and New Jersey (the “PANYNJ”) — a completely distinct bi-state entity — runs the PATH rapid transit service between several large cities in New Jersey and New York. Designing and operating a through-running regional rail system would require, at minimum, extensive cooperation, if not actual integration, among the various entities. Additionally, the political economy to promote this cooperation is a barrier; no public official has “both the incentive to push for [a unified rail system] and the power to make [it] happen.”10
While most of the attention on through-running has been promoted by external analysts and advocates, public authorities now appear to be on notice. In November 2014, the MTA Transportation Reinvention Commission, an expert body created by the MTA at the urging of Governor Andrew Cuomo, called for the implementation of “through service between the MTA railroads (LIRR and Metro-North) and between MTA railroads and NJ Transit.”11 Also, in its 2015 – 19 Capital Program, the MTA set aside $10 million for corridor planning support, including the evaluation of “opportunities for through running of regional rail systems.”12 However, no serious examination has been conducted regarding the legal and structural options available for forming a true regional rail system with through-running in New York.
This article begins that analysis. Part I provides a brief overview of the benefits of through-running in creating capacity and providing customers with additional flexibility. Part II discusses five international and domestic systems with through-running services or capacity and offers comment on their operational, governance, and financing structures. Part III develops three potential legal and structural options for pursuing through-running in New York: (1) creating a new multi-state agency, either as (a) a completely new agency authorized by Congress as an interstate compact or (b) a subsidiary of the PANYNJ, and merging all regional rail systems into this agency; (2) MTA interagency reform and an assumption of NJ Transit’s service; or (3) a limited joint services agreement between New York and New Jersey to through-run trains with compatible infrastructure on existing lines. Part IV discusses how four key areas of rail service might be addressed under the various structures: labor and staffing, fares, capital and operations financing, and management and decision-making. Finally, Part V concludes by offering comment on how through-running may fit in with current and future plans for infrastructure development in the New York metropolitan region.
I. Through-Running: A Brief Overview of Advantages
The objective of this article is not to provide extensive comment on the merits of through-running. However, if policymakers were to undertake the considerable time, effort, and potential expense to coordinate or even integrate service, it is obvious that the benefits should meet or exceed these costs. Most analyses point to four advantages: (A) significant increases in capacity as the “stub-end” station becomes a through-run station; (B) a reduction in space and time needed to store and turn around the trains; (C) additional flexibility for riders traveling to a different location within or outside the central business district; (D) the transit-oriented development of secondary job centers due to higher rail connectivity. Each are addressed in turn below.
A. Additional Capacity at Penn Station
The most compelling reason to through-run trains in New York is to increase capacity at Penn Station. Currently, Penn Station manages to use each track roughly three times per hour at rush hour.13 In contrast, the through-running Paris station Gare de Châtelet–Les Halles carries up to 17 trains per track per hour at peak period.14 The discrepancy can be explained by several factors. First, through-run trains do not have to perform time-consuming beginning and end-run preparations, including checking the train for passengers and reversing direction.15 Second, track capacity is no longer necessary to carry empty trains to storage destinations — in the case of New York, to Sunnyside Yards and Hudson Yards. Third, the distribution of passengers entering and exiting the train at multiple stops reduces dwell times significantly at each station, perhaps from a minimum of five minutes to less than one minute.16Thus, despite having enough track-space to meet the needs of its customers, Penn Station strains to provide reliable and on-time service.17 Furthermore, it cannot accommodate additional passengers from planned projects designed to improve the region’s transit such as Gateway or Penn Station Access; therefore these projects must wait until additional capacity is created from rerouting some LIRR trains to Grand Central through the East Side Access project or by building a new terminal near Penn Station (“Penn Station South”).18 Through-running trains at Penn Station would increase capacity at Penn Station by twenty-five percent or more, thereby accommodating additional trains and reducing delays for passengers.19
B. Reduction in Time and Storage Space
As described previously, when NJ Transit trains reach Penn Station, they are shuttled across the East River into shared space with Amtrak in Sunnyside Yards, Queens. LIRR trains are stored and re-routed from Hudson Yards on the far West Side of Manhattan. This is a time-consuming and space intensive process — both in the tunnels and in the rail yards — that would be unnecessary under a through-running scheme. Furthermore, this process is, of course, conducted without passengers — an expensive and unproductive use of labor. Finally, due to their proximity to Manhattan’s central business district, the spaces used at Sunnyside and Hudson Yards are extremely valuable pieces of real estate. Hudson Yards is so valuable, in fact, that a new $20 billion development project is rising in its air space on top of a $1.5 billion decked platform over the rails.20 The City is currently studying the possibility for a similar project at Sunnyside Yards, partially for the purpose of providing a large stock of affordable housing.21 Of course, if these projects could be built “at grade” rather than through an expensive decking process, more affordable housing would “pencil out” without subsidies. Air rights at both rail yards may still be valuable, but the necessity of retaining such large rail yards on such prized land is anything but free.
C. Additional Flexibility for Consumers
Some skeptics of through-running in New York correctly argue that, absent special events like professional football games in New Jersey or New York Mets games and the US Open Tennis Championships in Queens, most suburban commuters are not traveling to an opposite suburb; they are traveling to Manhattan. However, three points can be made in response. First, an ideal through-running plan would include multiple stops in Manhattan’s midtown central business district. This would necessitate additional construction — for example, building a new tunnel between Penn Station and Grand Central Terminal or an additional infill station on the east side of Manhattan at 34th St. — but would be enormously beneficial for commuters from across the region. Second, through-running should include, not only suburban stops, but also those in secondary downtowns across the metro region. A true regional rail system would give commuters destination choices including downtown Manhattan; Newark; Secaucus Junction; Hoboken; downtown Brooklyn, East New York; Long Island City; Sunnyside; Jamaica; Flushing; Harlem- 125th St.; the South Bronx; and possibly others. Finally, there would be some, if not many, commuters who do travel between suburban locations whose commutes would be vastly improved by through-run trains. Of course, the new routes would also increase housing and job flexibility for commuters previously not willing to make a suburb-suburb commute.
D. Transit-Oriented Development in Secondary Job Centers
Given the new regional connectivity created by through-running trains, New York and New Jersey could expect to see substantial office, residential, and industrial development in secondary job centers. On the commercial side, total average rent for Class A office space is over $50 per square foot in Lower Manhattan and over $80 per square foot in Midtown.22 Certain highly coveted neighborhoods in Midtown East and Midtown South are seeing rents well above $100 per square foot.23 These rents are unaffordable for a range of smaller, newer, and less profitable businesses. Improved transportation would allow many companies to consider locating across a broader swath of the city and even the region. Meanwhile, increasing choice for businesses in secondary centers would relieve pressure on rents in the steepest Manhattan neighborhoods. Of course, development in neighborhoods outside of the Manhattan core is contingent on policymakers providing appropriate land use regulation and higher-use economic development and housing plans. A better balance of mixed-use development across the region, allowing residents more choices in which to live and work, would help New York City retain a mix of employment and residential options at multiple income levels.
II. Through-Running: International and Domestic Experiences
The New York City metropolitan region has a unique physical and political geography that crosses natural boundaries and political subdivisions. But it is not alone: in fact, five of the top ten largest urban areas (New York, Chicago, Philadelphia, Washington, D.C., and Boston) span state lines.24 The presence of multiple political jurisdictions has not been a complete impediment to through-running in other countries. Globally, systems with regional through-running include Leipzig, Brussels, Madrid, Munich, Zurich, Basel, Milan, Tokyo, and Buenos Aires.25 This section presents an overview of five through-running systems in cities with particular relevance for New York: London, Paris, Berlin, Philadelphia, and Washington D.C.
A. London, England (Crossrail)
The London Crossrail is a 73-mile rail line currently under construction running east-west across Greater London, aiming to bring highspeed direct service to London’s outer suburbs and relieve pressure on existing London Underground lines.26 In honor of Her Majesty the Queen, it will be named the Elizabeth Line when new service opens to passengers through central London in December 2018.27 The company tasked with building Crossrail “was established in 2001 as a [fifty-fifty] joint venture … between Transport for London (TfL) and the U.K. Department of Transport (DfT).”28 In 2008, it became a fully-owned subsidiary of TfL.29 However, DfT remained a funding partner and was granted management oversight.30 Funding for the £14.8 billion project was split between TfL (48%, over half of which was raised through a surcharge on London businesses), the DfT (35%), and other sources (17%).31 The overarching Sponsor Board is comprised of an equal number of DfT and TfL representatives and both entities are given consent rights over the composition of the board of the operating entity.32 The operating entity then selected a concessionaire to run the system.33 Thus, the national government plays a large role as a partner in Crossrail. Overall, however, the project adds to the vast scope of TfL, which includes roads, bridges, the Underground (Tube), airports, and seaports in Greater London. The analogy to New York is not perfect. London is the United Kingdom’s political capital, largest city, and major economic driver. Therefore, it makes sense that it would play a larger role in regional transportation. However, Crossrail is an excellent example of a local entity — with significant oversight and funding participation from higher levels of government — executing on a through- running project that will deliver shared value to London and the surrounding region.
B. Paris, France (RER)
Paris’s through-running regional rail system, the Réseau Express Régional (“RER”), is among the best in the world. The RER’s five lines reaching out sixty miles from Paris’s core were constructed between the late 1960s and the end of the 20th century.34 Today, approximately 365 miles of track connect more than 250 stations, including 33 in the City of Paris where the system connects to the Paris Métro.35 Operation of the RER is shared by the RATP, which runs the Paris Métro, buses, and trams, and the SNCF, the national state-owned railway company. The SNCF runs the C, D, and E lines and all of their stations. The A and B lines are shared responsibilities; RATP manages Line A stations east of Nanterre-Préfecture and those on the Saint- Germain-en-Laye Branch, as well as Line B stations South of Gare du Nord, where connections are available to the Metro.36 The SNCF operates the others. Each RER line is managed by a single control center.37 Before 2008, trains on the B line were driven by SNCF conductors north of Gare du Nord and RATP on the southern end.38 But in 2009, the systems agreed to have a single conductor drive the trains through, and in 2013, they set up a unified management system to improve service for customers.39 Under this system, a new manager was appointed to run the system, reporting to the Presidents of both entities, and signaling was centralized to the RATP’s control room.40 This reform points to the advisability of having a line operations completely managed by one entity — even if stations continued to be owned and operated by the separate agencies.
The RER also features a unique financing system. In general, the RATP and SNCF fund their own full and partial lines and stations.41 However, both systems receive funding from “Stif” — a body collecting tax revenue and government subsidies from across the Paris region.42 A major Stif funding source is a transit tax levied on incomes at medium and large businesses in Paris, with the highest rates on central Paris and neighboring wealthy d´epartements (similar to counties) and lower rates on further-out poorer suburbs where residents may be less likely to take advantage of rail transit.43 These varying levels of transfer payments are a creative way to track responsibility for funding with general rates of usage. Meanwhile, transfers to the SNCF for the purposes of running regional rail around Paris help ensure that residents in other parts of France are not required to support rail they will not use. Overall, policymakers have overcome multiple entity and overlapping jurisdiction challenges, negotiating management and financing agreements to create a well-functioning system providing excellent service to the entire Paris region.
C. Berlin, Germany (S-Bahn)
Like many transit systems in continental Europe, Berlin has a two-tiered system of transit featuring a rapid rail transit system (“U-Bahn”) and a through-running regional rail system (“S-Bahn”). The Berlin S-Bahn combines 15 lines in three core routes (an elevated east-west line, a mostly underground north-south line, and an elevated circular line).44 In total, the system runs through 166 stations over 204 miles of track route, providing service to Berlin and the surrounding area.45 Both the U-Bahn and the S-Bahn, as well as forty other transit systems in the Federal states of Berlin and Brandenburg, are overseen by the regional transportation authority Verkehrsverbund Berlin-Brandenburg (“VBB”).46 VBB has twenty shareholders: the states of Berlin and Brandenburg, each with a 33.3% share; and four cities and fourteen administrative districts, each with a 1.85% share totaling the final 33.3%.47Funding is provided by the states of Berlin and Brandenburg (53%), fares (43%), and cities/ districts (4%).48 Fares within the VBB area are unified and based on zones. The U-Bahn and S-Bahn are actually operated by different entities; the U-Bahn by BVG, the Berlin public transport operator, and the S-Bahn by S-Bahn Berlin GmbH, a subsidiary of the federal railway company. Thus, Berlin provides an interesting model for regional rail coordination. The major political subdivisions in the region are shareholders in the regional transit authority, which oversees and coordinates networks, lines, fares, and ticketing; mediates between policymakers and operators; brands the entity and provides quality control.49 However, the actual systems are managed by separate transit operators. Certainly, conflicts of interest persist, but Berlin manages them with a complex set of arrangements resulting in a modern and efficient world-class system.
D. Philadelphia, P.A. (SEPTA)
There are few examples of effective through-running regional rail systems in North America. The only major transit system with service that can properly be described as through-running is Philadelphia’s Southeastern Pennsylvania Transportation Authority (SEPTA) Regional Rail system, though Los Angeles and Toronto are both currently transforming their infrastructure to allow for through- running.50 Other cities including Baltimore, Boston, and Chicago have multiple commuter rail terminals in downtown stations but do not have the requisite tunnel connections to enable through-running.51 The unification of Philadelphia’s commuter rail systems dated back to the bankruptcies of its two major railroads in 1970 and 1971. Service was provided by Conrail, the government- owned rail operator, until SETPA assumed control of the system in 1983.52 A year later, the City of Philadelphia received an 80% grant from the Urban Mass Transit Administration to open the Center City Commuter Connection, linking the two downtown stub-end commuter terminals with a 1.7 mile tunnel.53 With the necessary infrastructure and a sole operator to run the system, SEPTA commissioned a University of Pennsylvania professor to write a detailed through-running operating plan based off the RER and S-Bahns in various German cities.54 Unfortunately, most of the plans were never executed. Some eastbound trains end up heading west through the tunnel;55 a unified nomenclature system indicating through-running was scrapped in favor of terminal names;56 some trains simply end at the central business district; and others only through-run on certain days and times. SEPTA’s deep struggles with funding and ridership generally may be partly to blame,57 but a lack of commitment by stakeholders to execute on the plans even after the infrastructure upgrade is disappointing.
Nevertheless, Philadelphia has proven that through-running is a possibility in the United States. It also shows that a metropolitan area spanning multiple states is not a complete impediment; two lines on SEPTA have stops in New Jersey and another one ventures into Delaware. The Delaware Transit Corporation contracts with SEPTA to provide for service into the state;58 presumably, NJ Transit does the same. Neither state appears to contribute to management; SEPTA’s board is entirely from Pennsylvania.59 On the 15-person Board, Philadelphia has two members and the other seats are occupied by two representatives each from the four counties served, one representative appointed by the majority and minority of each of the Pennsylvania House of Representatives and Senate, and one from the governor.60 But Philadelphia’s two members can veto any decision by the Board unless they are overridden by 75% of the full board.61 Philadelphia’s inability or unwillingness to follow through on true regional rail is a cautionary tale: infrastructure must be paired with adequate funding and a commitment to through-running the trains.
E. Washington, D.C. (WMATA Silver Line)
Finally, the opening of phase one of the Washington Metropolitan Area Transit Authority (“WMATA”) Silver Line in July 2014 provides an interesting model for regional rail fully integrated into an existing urban rapid transit system (the “Metro”). The Silver Line runs as a subway line in the D.C. core but substitutes for commuter rail in the region’s suburbs and exurbs.62 Phase one extends the Metro to five stations in Fairfax County, Virginia; it will eventually reach another six stations in semi-rural Loudon County.63After passing through city core, the Silver Line extends out to Prince George’s County, Maryland. At the ends of the line, the stops are spaced out at nearly two miles between stations64 — a similar frequency to LIRR and NJ Transit routes. It is worth including the Silver Line in a discussion about through-running because it presents a model of regional rail that rejects 20th century commuter rail practices. The State of Virginia could have built a heavily-staffed traditional commuter line, terminating at a station in Washington’s central business district. Instead, the area transit authority extended its rapid rail network, with low staffing levels and integrated fares, to through-run multiple stops and provide transfers to other lines within the city and ultimately into both states. There is little precedent for similar expansions in New York; however, there have been proposals and one formal study on extending the 7 train to Secaucus, New Jersey to give passengers there direct integration into New York’s subway system.65
As an agency that spans the nation’s capital as well as two states, WMATA must negotiate difficult governance and funding questions. WMATA was approved by Congress under a Constitutionally-required interstate compact.66 The original Board of Directors had twelve representatives, four each from D.C., Maryland, and Virginia.67 The Rail Safety Improvement Act of 2008 expanded the Board to include four representatives from the Federal government.68 Fifty-seven percent of the transit budget comes from fares with the remainder from D.C. and the four Maryland and Virginia counties and three other localities in its service area.69The formula for allocating subsidies between the various governments takes into account population and population density (33%); average weekday ridership by jurisdiction of residence (33%), and number of rail stations by jurisdiction (33%).70 Responsibility for funding regional rail in WMATA remains a contentious issue among the stakeholders, but the agency’s experience shows that it can be done. Should New York and New Jersey eventually decide to execute on a through-running plan, they could turn to a comparable subsidy formula designed to promote funding equity throughout the system.
III. Options for Reform in New York
There is considerable disagreement about whether the engineering obstacles would limit effective through-running in New York, but there is clearly interest: the MTA’s 2015 – 2019 capital plan released in October 2015 includes $10 million for corridor planning support, including “opportunities for ‘through running’ of regional rail systems.”71 However, it is not clear how a plan might begin to be formulated or what legal and structural changes might need to be made in order to prepare for and eventually implement a through-running plan. Most articles on the subject admit that through-running would require “cooperation,”72 but no formal or informal analysis has developed a menu of legal and structural options from which policymakers might choose to implement regional rail in New York.
This section outlines three possible approaches. The first is to create a new multi-state transportation agency, either as a standalone agency authorized by Congress through an interstate compact or as a subsidiary of the existing Port Authority of New York and New Jersey. The second is interagency reform at the MTA to a unified regional rail agency, including assumption and integration of service currently offered by NJ Transit. The third is to keep in place current organizational structures but to form a joint services agreement between the two states to provide for limited through-running on certain lines.
A. A New Multi-State Transportation Agency
Regular riders of the New York City subway may be aware that the system was not built as a coordinated entity; in the early twentieth century, the Brooklyn- anhattan Transit Corporation and the Interborough Rapid Transit Company built separate sets of lines.73 Later, the city-owned Independent Subway System opened to compete with these private systems. Eventually, the private systems were bought by the City and integrated into one system, benefiting users across the five boroughs.74 Even today, however, riders may notice this history’s legacy when making distant, off-grade, and awkward transfers between lettered and numbered trains.75
The consolidation of New York’s subway system may serve as an example for New York’s disparate regional transit agencies. Of course, unlike the City, there are no private operators running commuter rail into New York. However, the persistence of distinct public entities from two states running the metro area’s three major systems is a key reason New York has not moved beyond 20th century models of commuter rail. Even within the MTA, the LIRR, Metro-North, and the other sub- agencies are notoriously siloed and rarely cooperate on shared regional goals.76 Thus, there is considerable reason to consider overhauling the region’s transit agency structure in favor of one coordinated system with a single mission and management structure (“Regional Rail Corporation”). In order to do so, policymakers have two options: (1) creating an altogether new multi-state agency under an interstate compact; or (2) forming a subsidiary of the Port Authority.
1. A NEW MULTI-STATE AGENCY UNDER INTERSTATE COMPACT
Article I, Section 10, Clause 3 of the Constitution of the United States provides that “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State” (the “Compact Clause”).77 This clause has long been understood to prohibit compacts without Congressional approval only in the case where there is a “formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”78 In recent years, this standard has been repeatedly applied.79 The Supreme Court also affirmed that through interstate compacts states may “delegat[e] … power to an interstate agency” and agree to “appropriate funds for the administrative expenses of the agency.”80Today, there are more than 200 active interstate compacts.81 Many are bi-state or multi-state compacts regulating ports, waterways, environmental concerns, and waste disposal.
Since not all interstate agreements are compacts in the constitutional sense (i.e., requiring congressional approval), it is worth considering whether an agreement between New York, New Jersey, and Connecticut for the purposes of operating regional rail service would. To start, the federal government has long had regulatory jurisdiction over the nation’s “navigable” and other interstate waters, such as the Hudson River.82 But does the federal regulatory jurisdiction on topics like clean water, for example, preempt the states from building and managing transportation facilities above them? It appears that it does not. Many states have built and managed bridge crossings between states under local agreement; the Mississippi River, for example, has dozens of such crossings.83On the other hand, many, if not most, major toll bridges between states are operated by an entity authorized by an interstate compact.84 Perhaps the added complexity of collecting and apportioning revenue lends itself to the advisability of going through the compact process.
Regardless, it is fair to say that a wide-scale, multi-span development and management program of tolled bridges, tunnels, and ports between two states with significant commercial implications would very likely be something that the states could not do on their own, thereby enhancing the power of the states so as to threaten the supremacy of the national government.85 It is therefore not surprising that New York and New Jersey obtained an interstate compact to form the Port Authority of New York and New Jersey,86a bistate entity managing all of the bridges and tunnels between the two states, just as New Jersey and Pennsylvania obtained compacts to manage the Delaware River crossings between those two states.87
With the preceding discussion in mind, a key difference between the PANYNJ and a hypothetical Regional Rail Corporation is that the Regional Rail Corporation would not be performing any regulatory tasks, building large infrastructure projects in the Hudson River, or creating and owning a right of way that crossed state lines. Instead, it would merely be leasing a right-of-way from Amtrak, which owns the Northeast Corridor (“NEC”) infrastructure including the North River Tunnels between Weehauken, NJ and Penn Station. The legal arrangement would be quite similar to the one NJ Transit already has with Amtrak — a series of contracts addressing “access terms and compensation; payment for electric power consumption; compensation to Amtrak for its capital costs for state-of-good repair improvements; equipment maintenance services performed for NJ Transit by Amtrak at Sunnyside Yard; business terms associated with NJT fully-funded infrastructure improvements on the NEC; and smaller contractual arrangements.”88If New Jersey does not need an interstate compact with New York for the purposes of running its trains into New York, why would the Regional Rail Corporation?
One piece of evidence suggesting that an interstate compact may be required, or at least advisable, is that several other partnerships to provide rail service across state lines have been formed under them.89 Most notably, Congress approved the Connecticut-New York Railroad Passenger Transportation Compact in 1969 for the “purpose of continuing and improving the railroad passenger service of the New York, New Haven and Hartford Railroad (and its successors) between the city of New Haven in the state of Connecticut and the city of New York in the state of New York, including branch lines which are tributary to the main line of that railroad between the said cities.”90 Today, this agreement stands with slight modifications made at the state levels (including deletion of the reference to “said cities”)91 and promotes cooperation between the MTA and the Connecticut Department of Transportation (“CDOT”) for the improvement of rail passenger service between the two states. But what does the interstate compact actually authorize? Essentially, to “acquire,” “lease,” “repair,” or “dispose” of new or existing railroad assets, apply for funding, and “operate such service,” all either individually or as “co-venturers.”92 In other words, Congress’s grant of authority is largely limited to activities each agency could already do on its own. Perhaps the co-venturer option does increase the power of the individual states so as to encroach against the power of the federal government, but it is a fine line. Additionally, in practice the two systems appear to separate ownership of assets and rights of way, rendering the interstate compact even less necessary than it would be if these were owned cooperatively.93
Of course, the existence of a Congressionally-approved interstate compact is not necessarily proof that approval was actually required. In Washington Metropolitan Area Transit Authority v. One Parcel of Land in Montgomery County, the court noted that the “historical practice” of attempting to secure Congressional legislation for interstate compacts out of caution or convenience would not be a controlling consideration in determining whether an interstate compact is federal law.94 The compact between New York and Connecticut is perhaps evidence that its drafters thought a congressionally-approved compact was advisable or even required, but it is not dispositive as to the question as to whether it actually was.
One concrete statement on whether an interstate compact had been formed to govern regulatory regimes is articulated in Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System.95 There, the Court looked to four “classic indicia” to see whether a compact in the context of the Compact Clause had been made: whether (1) a joint organization or body had been established; (2) statutes by any state were conditioned on action by the other states involved; (3) the states were free to modify or repeal their laws unilaterally; and “most importantly,” (4) any state conditioned its regulatory scheme on reciprocity by another state.96 First, a hypothetical Regional Rail Corporation would clearly be a joint body. Second, New York, New Jersey, and Connecticut would pass statutes allowing for the transfer of services and management authority to the joint body and likely condition them on the other states doing the same. Third, each state’s statute would probably limit unilateral modification. Fourth the indicia is not relevant for a Regional Rail Corporation. Nevertheless, these indicia suggest that there very well could be a compact required in this situation.
But while Northeast Bancorp may be suggestive, the controlling test is still the one articulated in Virginia v. Tennessee and the subsequent line of jurisprudence: whether an agreement by the states increased their power such as to threaten federal supremacy.97On this test alone, it is hard to see how it would. The services to be provided would be on assets currently owned by the existing systems, over rights of way currently owned or leased by the existing systems, with labor currently employed by existing systems, under coordinated ticketing, branding, and operations — all of which could theoretically be done without a Regional Rail Corporation. Ultimately, creation of this entity may not require a congressionally approved Compact.
However, Northeast Bancorp, the Connecticut-New York Passenger Rail Transportation Compact, and the fact that no bistate transit agency exists in the United States without a Compact all point to an unacceptably high litigation risk of moving forward without one. This is a disappointing result: in today’s polarized Congress, getting even uncontroversial laws passed can be challenging. On the other hand, methods to gain Congressional approval are “wide ranging.”98 Congress can authorize joint state action “in advance or by giving express or implied approval to an agreement the States have already joined”99 and there may even be additional methods outside of those.100 Local and state policymakers intent on creating a new bistate or tristate entity to manage regional rail in the New York metropolitan area would be wise to obtain a congressionally-approved interstate compact. They should work with their federal representatives to introduce a bill maximizing their flexibility to achieve serious reform and guaranteeing success against any future challenges in court.
2. A SUBSIDIARY OF THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
If the goal is to create a bistate, congressionally approved interstatecompact agency responsible for transportation infrastructure and service delivery between New York and New Jersey, it is of course worth consideration that such an agency already exists: the Port Authority of New York and New Jersey. The PANYNJ was formed in 1921 as an interstate compact between New York and New Jersey, approved by Congress “for the comprehensive development of the Port of New York.”101 Specifically, the compact drew an approximately twenty-five mile radius district across the two states, established a new body, and gave the body the authority to “purchase, construct, lease and/ or operate any terminal or transportation facility” within the district.102 Since that time, the PANYNJ has taken over several transportation infrastructure assets and constructed many more. Today, the PANYNJ runs all of the bridges and tunnels between New York and New Jersey, including the Holland and Lincoln Tunnels, the George Washington Bridge, and three crossings between New Jersey and Staten Island.103 It also manages the Port Newark-Elizabeth Marine Terminal, all of the region’s airports, New York’s major bus terminal, and the Port Authority Trans-Hudson (PATH) rapid transit rail line. It managed reconstruction of the World Trade Center site after the terrorist attacks on September 11, 2011.
The PANYNJ is overseen by a twelve-member Board of Directors, six each appointed by the Governors of New York and New Jersey.104 For the last two decades, the governor of New Jersey has appointed the board chairman and deputy executive director while the governor of New York has appointed the vice chairman and executive director. However, the September 2013 George Washington Bridge lane closure scandal involving members of the administration of New Jersey Governor Chris Christie has prompted reform; now, there will be a solitary Chief Executive Officer chosen by the Board and the chairmanship will rotate between the two states every two years.105
Would the PANYNJ have the legal authority to own a Regional Rail Corporation subsidiary and operate a regional rail system? It appears so: under the legislation, “transportation facility” includes “railroads, steam or electric” which include “cars and motive equipment” and virtually every type of related equipment needed to operate a railway.106 But legal authority is not the same as advisability: transferring control and management of each legacy commuter rail system (NJ Transit; LIRR; and Metro-North) to the PANYNJ would not necessarily solve coordination problems. Adding independent transit agencies to a transportation conglomerate under a structure wherein the transit agencies would remain largely independent would solve little. Even separation of LIRR and Metro- North under the MTA umbrella has resulted in few synergies between the agencies. In fact, one analyst argues that the $2 billion East Side Access project accommodating the LIRR at Grand Central Terminal could possibly have been avoided had Metro-North been willing to “share” its track space through more efficient routing procedures.107 Thus, a true coordinated system would involve a unitary special-purpose entity dedicated to providing comprehensive regional rail service with modern and efficient through-routing practices, system-wide branding and marketing, a single fare structure, an integrated labor force, and a regional outlook in operations and capital planning.
There is a brand-new example of a special-purpose entity subsidiary of the PANYNJ: the “Gateway Development Corporation” announced in November 2015 by a coalition of New York and New Jersey Senators and Governors, the USDOT, and Amtrak, designed to oversee the construction of a new tunnel between New York and New Jersey.108 This tunnel will minimize interruption to Amtrak and NJ Transit service when one or both of the existing tunnels inevitably needs major repairs in the coming decades. Under the agreement, financing for the project will be split equally between the states and federal government.109 The Board will have four members — two from the PANYNJ, representing the states, and one each from Amtrak and the USDOT, representing the federal government.110 A representative from the PANYNJ will serve as chair and the representative from Amtrak as vice-chair.111Ownership of the Project will reside in the Gateway Development Corporation while “improvements to existing assets will be conveyed to their current railroad owners on appropriate terms.”112
The analogy of a PANYNJ Gateway Development Corporation subsidiary to a PANYNJ Regional Rail Corporation subsidiary is far from a perfect one; for example, Gateway is a greenfield project, an entity to plan and finance the building of a shared infrastructure asset. The Regional Rail Corporation, on the other hand, would necessitate the transfer of three major transit systems for which the new entity would largely serve a coordination of operations role. But the analysis is similar. Rather than create a new bistate entity requiring a new, congressionally approved interstate compact, the stakeholders of Gateway simply created a SPE under the Port Authority (which, despite deep problems of governance and varying levels of success across its portfolio, does have extensive experience and expertise managing large transportation infrastructure assets). The SPE is singularly focused on the end goal, with a Board proportionally representing the interests of the funding stakeholders.
A likely fatal problem to executing a similar plan for a Regional Rail Corporation is that certain portions of the regional rail system extend outside of the congressionally-approved PANYNJ district. To begin, the western portion of NJ Transit, the eastern portion of the LIRR, and several of the northern portions of Metro-North extend outside of the compact area in New York and New Jersey. By itself, this is not a huge problem; the interstate compact provides that the boundaries may be changed “from time to time by the action of the legislature of either state concurred in by the legislature of the other”113 — in other words, without having to go back to Congress. But the legal repercussions of changing the boundaries may be severe. For example, the Tappan Zee Bridge connecting Rockland and Westchester Counties north of New York City was intentionally built slightly outside of the district, by one account because the PANYNJ’s bondholders had been “promised that the authority would have exclusive rights to construct a Hudson River bridge or tunnel within its own territory.”114 While there is nothing in the compact about an exclusive right to build or manage infrastructure (therefore allowing New York and New Jersey to continue managing proprietary assets like the Tappan Zee Bridge), changing the boundaries could certainly be problematic for bond covenants and other reasons.
The other major problem with the Regional Rail Corporation’s boundaries is that, as previously discussed, the New Haven Line on Metro-North extends into Connecticut. Would Connecticut’s interstate compact with New York providing for cooperation between Metro-North and CDOT become illegitimate if Metro-North services were transferred to the PANYNJ? It is a possibility. At a minimum, all of the contracts governing the service arrangement between the two systems would need to be rewritten. If the redrawn district were to continue to exclude Connecticut, the States of New York and New Jersey may be able to specifically authorize the PANYNJ to administer service outside of its district as it has done with certain other transportation facilities.115 However, given that the assets exist in neither state, its legal ability to do so is tenuous, and at minimum the PANYNJ would need to carefully negotiate the extent of the service and work through an increasingly complicated funding structure with Connecticut.
Given the preceding discussion, it is apparent that the right way to create a Regional Rail Corporation would be as a tristate entity, and for that Congress would need to approve admission of Connecticut into the PANYNJ. But the stipulated reason to install a new Regional Rail Corporation as a subsidiary of the PANYNJ like the Gateway Development Corporation was to avoid the congressional approval requirement of a new interstate compact. Since Congressional approval is implied in either case, there is no benefit to fitting a square (the Regional Rail Corporation) into a circle (the PANYNJ). Nor would the other benefits of placing Gateway at the PANYNJ, including leveraging the office space, administrative, IT, and logistical support capacity of the PANYNJ, be present for the Regional Rail Corporation — these functions already exist at the existing transit operators. As a final reason to avoid this strategy, policymakers will likely be skeptical about placing an unprecedented amount of power over the region’s transportation infrastructure in the PANYNJ, especially with its recent struggles.116
Under either the “new interstate compact” or “PANYNJ subsidiary” approach, each participating state would have to pass legislation approving the new entity as well as transfer of the existing transit assets into the new body. Both houses of both (or, ideally, all three) state legislatures would have to approve, and command the governor’s signatures or pass with veto-proof majorities. A new interstate compact approved by Congress would ensure maximum flexibility and guard against future lawsuits. In sum, therefore, this option is far from politically easy but possible if negotiated to adequately represent varying stakeholder interests.
B. MTA Intra-Agency Reform and Assumption of NJ Transit Service
Short of creating a new agency, how could existing agencies be reformed to bring regional rail service in New York? One answer is to recognize the MTA as the best- placed existing agency to promote through-running, reorganize it to break down the service silos, and allow it to contract to operate NJ Transit service. Why is it the bestplaced? The fact is that Northern New Jersey, where nine out of the ten NJ Transit lines are located, is part of the New York metropolitan area and that most of its trains and passengers are heading into New York City. Because the MTA is responsible for running the other New York metropolitan rail services, it could assume NJ Transit’s operations (with the possible exception of the 10th line running from Atlantic City to Philadelphia) and reorganize to execute a through-running regional rail plan.
Metro-North has already shown a capability and willingness to provide service outside of the State of New York. As discussed earlier, the MTA contracts with the Connecticut Department of Transportation to operate Metro-North service on the New Haven Line. CDOT owns the “main line track from the New York State border to New Haven, the branch lines, maintenance facilities, most stations, and over 60 percent of the equipment.”117 In addition to providing service on the line, Metro-North maintains the right-of-way, maintenance facilities, and equipment.118 The systems have agreed to split new non-fixed asset costs 65 percent CDOT–35 percent MTA, based on respective ridership levels.119 Each state is responsible for the full cost of improvements to fixed assets within its borders. Contracting with Metro-North to provide service in Connecticut delivers significant economies of scale to the system. Metro-North already employs hundreds of conductors, engineers, electricians and maintenance workers along the line; any other vendor would have to duplicate these services but also negotiate a system to ensure a smooth and uninterrupted trip across the border.120
Outside of the New York metro area, there is additional precedent for the transit authority of one state with a major metropolitan center to provide the bulk of another state’s commuter service to that metropolitan center. For example, the Massachusetts Bay Transportation Authority (“MBTA”) provides service to Rhode Island over the Providence/ Stoughton Line. In 1988, the Rhode Island Department of Transportation (“RIDOT”), the MBTA, and the Commonwealth of Massachusetts entered into the Pilgrim Partnership Agreement, which provided, inter alia, that the MBTA would provide commuter rail passenger service between Providence, RI, and Massachusetts with five round trips per day over a period of seven years.121 This agreement has been amended and extended many times since; most recently, service was extended south of Providence to T.F. Green Airport in 2010 and to Wickford Junction in 2012.122 In return for service to Boston, Rhode Island provides capital transit funds for projects including the “Pawtucket layover facility, bi-level coaches, and other maintenance upgrades along the Providence/ Stoughton line.”123 Trackline in Rhode Island is owned by Amtrak, which Rhode Island leases use of on behalf of the MBTA.124
Interestingly, the extension of service does not appear to required approval by either state’s legislature. Presumably, executive branch lawyers determined that they had existing authority to make the agreement. In Rhode Island, the Department of Transportation is authorized to “contract with any domestic or foreign person, firm, corporation, agency, or government to provide, operate, maintain, or improve rail transportation service on the rail properties acquired by the state.”125 In this context, “rail properties" means “assets or rights, both real and personal, owned, leased, or otherwise controlled by a railroad,”126 confirming RIDOT’s ability to contract with the MBTA for service despite not owning the track infrastructure. In Massachusetts, the MBTA may “operate mass transportation facilities and equipment, directly or under contract in areas outside the area constituting the authority; but only pursuant to … an agreement with a transportation area or a municipality for service between the area of the authority and that of such transportation area or municipality, where no private company is otherwise providing such service.”127 But transportation area is not defined and therefore it is not clear that this suffices. Another provision grants the MBTA the authority “to enter into agreements with other parties, including, without limiting the generality of the foregoing, government agencies, municipalities, authorities, private transportation companies, railroads, and other concerns, providing … (iii) for operation and use of any mass transportation facility and equipment for the account of the authority, for the account of another party or for their joint account.”128 Perhaps the MTA relied on this grant of authority.
An assumption by the MTA of NJ Transit’s North Jersey service would be quantitatively and qualitatively different than Metro-North’s contract with CFOT and MBTA’s extension of a service to Rhode Island. Tasks to pursue include integrating thousands of employees, changing fare structures, and assuming control of new rolling stock and equipment. Does NJ Transit even have the authority to assign its extensive operations over to the MTA? Possibly; the statute gives a very wide grant of authority to NJ Transit, allowing it to “enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the corporation, or to carry out any power expressly or implicitly given in this act.”129 However, the MTA probably does not currently have the authority to assume NJ Transit service or extend its own service into New Jersey. The agency is generally allowed only to operate in the Metropolitan Commuter Transportation District, which includes several counties in New York State;130 any operation outside of it and other areas explicitly permitted in New York State law (such as Connecticut) is prohibited.131 Thus, approval by the New York State legislature would be required. In New Jersey, it seems likely that an attempt by its executive branch to sign away its responsibility for providing rail service without legislative approval would be met with outrage if not immediate legal action. Of course, the entire grant should be structured to be as minimal as possible — New Jersey should remain the owner of its hard assets and negotiate a detailed service agreement — so as not to trigger an interstate compact requirement.
Within the MTA, the Metro-North and LIRR sub-structures should be removed in favor of a solitary regional transit structure encompassing those two agencies as well as the newly assumed NJ Transit lines. But this suggests two questions: can the two New York legacy commuter lines legally merge? And if so, why haven’t they done so already? The answers appear to be that they cannot without new legislation, and that an effort was already brought but failed. In 2002, MTA executives proposed a merger of the two agencies with a single transportation mission under the name “MTA Rail Road.”132 Other divisions would be reorganized — a single unit for bus systems, one for the subway system, and one for capital construction.133 And although there is no language specifically requiring the agency’s current structure, there is enough statutory language “regarding the operations and governance of the MTA and its subsidiary authorities, including commuter advisory boards” that policymakers clearly believed legislation was needed to enact the change.134 Legislation was submitted to state lawmakers but it was neither introduced nor “seriously considered.”135 In particular, Long Island local and state officials were worried about the effect of the change on LIRR service.136
The lack of traction achieved by reorganization supporters is a cautionary tale; changes may be unpopular and riders will have serious doubts about whether their interests will be protected. And merging a third agency — NJ Transit — would likely be even more controversial. Even if lawmakers agreed to merge the NY commuter rail agencies and assume NJ Transit operations, effective reorganization would require more than simply aesthetic or formal changes. Merely inserting another layer of management between the MTA and the legacy transit agencies while keeping the agencies intact would be ineffective and a waste of resources. The key instead would be a complete overhaul of agency structure: one operations engineering team; one capital planning team; one branding and marketing team; one labor relations team; and so on.
As discussed in the earlier, a reorganization plan would not be enough to effect through-running between the three systems. Engineering obstacles would need to be overcome. For example, the LIRR uses an “over-running” third rail, where power is collected from the top of the third rail, whereas Metro-North operates by “under- running,” also known as “bottom contact,” where power is collected from the bottom of the third rail.137 Current rolling stock cannot manage both systems, but there is hope that future orders of M9 cars would have the ability to run on both systems thereby making interoperability possible.138 The opening of the East Side Access project bringing the LIRR to Grand Central Terminal, scheduled to be complete in December 2022, will be another essential element to through-running rail from Long Island to Westchester and beyond.
C. Joint Services Agreement
While implementing a major agency restructuring plan to form a new bistate entity or to consolidate all regional transit services in the MTA would help align stakeholder interests around the provision of through-running and true regional rail service, it is not strictly necessary. The excellent subway system in Tokyo, for example, is run by several agencies.139 And the experiences of European regional rail systems — not only through-running across urban areas, but in negotiating comprehensive cross-border service — is instructive. These European rail agencies navigate difficult governance, funding, and standardization issues to form complex joint service agreements because they recognize that their customers benefit from the improved service. Along similar lines, the MTA and NJ Transit could continue operating in their current forms but agree to design a limited through-running plan that is operationally feasible from engineering and transit planning standpoints and delivers value for customers in all three states. A well-designed joint services agreement could bring similar benefits as would a complete agency overhaul while being far less disruptive for employees and customers of the service.
A limited joint services agreement between the two states would differ from a contract for an assumption of service as described in the previous section in that it would require no major structural reorganization. NJ Transit would continue to operate its own service with its own labor force and management. However, in order for the systems to enjoy the full benefits of through-running service, the state legislatures should approve the program for the same reasons as outlined in the previous section. Additionally, in order to make this grant of authority as politically palatable and minimally intrusive as possible, the states should consider framing the plan as a “pilot” program designed to test the feasibility of through-running structures in New York. The states should agree to study various options as part of the process for picking an optimal through-running plan, taking into account the level of disruption and cost as well as the benefits the plan would yield in terms of freeing up capacity at Penn Station and providing customers with more flexibility in service. As an example, one analyst claims that no new construction would be necessary to through-run the fully electrified New Haven Line (Metro-North) to the Northeast Corridor Line (NJT) or the Morristown Line (NJT) to the LIRR Main Line.140 This plan would not require any new rolling stock but merely moving dual-voltage trains from the New Haven Line to the Morristown- LIRR line and AC-only trains from the Morristown line to the combined Northeast Corridor line.141
One difficult but critical point to negotiate should be the conditions under which NJ Transit and MTA trains and operators would be able to cross state borders to effect smooth through-run service. Policymakers should look to various European models for examples of joint operating agreements that deal with this tricky issue. For example, as discussed in Section III, the Paris RER Line B is operated by two separate entities, the local transit agency in the south and the national rail agency in the north. Before 2009, drivers switched in the middle. But after negotiations between the two entities and reform, they now travel the length of the line. New York and New Jersey should similarly strive to negotiate an agreement that would mimic the level of service that could be provided by a sole transit agency. Coordinating all of the aspects of service between separate entities could be immensely challenging but would also deliver enormous benefits to riders.
IV. Issues to Negotiate
Under any of the three structural options New York and New Jersey may choose to execute through-running regional rail service, the states must negotiate several issues that are complex even when managed by a solitary agency in one state. Four may prove particularly contentious: (1) labor and staffing; (2) fare structures; (3) financing capital and operating expense; and (4) management and decision- making.
A. Labor and Staffing
Like many transit agencies across the country, many workers at the MTA, NJ Transit, and the PANYNJ are unionized; through collective bargaining agreements, employees have carefully negotiated contracts with management detailing exactly what jobs they are expected to perform under which work rules at particular salary and benefit levels.142 While one could simply suggest negotiating with “labor” to provide for integration into a single agency or joint operations, it is not nearly so simple. To start, NJ Transit actually has seventeen separate unions representing more than 4,000 workers.143 At least as many unions represent the MTA, serving several times as many workers.144 The states should work with coalitions of the unions to reduce negotiation time and effort (and under the joint service agreement model, limit the number of workers affected), but it will be a weighty and lengthy task to re-negotiate dozens of collective bargaining agreements and convince union leadership that regional rail service is in their members’ best interests.
Labor challenges will be further exacerbated because, in the menu of reforms to transform New York’s commuter rail system to a 21st century rapid transit-like regional rail model, staffing reform is a critical one. New York’s commuter rail agencies all employ multiple conductors per train who walk down each car checking tickets, or selling them (at a premium) to riders who did not buy in advance. This is a highly outdated and inefficient 19th-century model for fare collection.145 There are two far better modern light-labor approaches: fare-gates and “proof of payment.” Fare-gate models, which are best at high levels of ridership, force commuters to pay through a swipe or contactless fare card in order to enter the platform where the train will arrive.146 Most subways, such as the NYC Subway and WMATA Metro, use this model. “Proof of payment” systems, which are effective at lower ridership levels, allow passengers to enter the trains without passing through any barriers.147 Transit system agents conduct random, infrequent searches to ensure that passengers have purchased tickets. Penalties for not having a ticket are high and can be designed to cover the overall cost of fare evasion from passengers who are not caught. Proof of payment systems rely on much lower staffing levels and are common on light rail and bus systems across the world, including the NYC bus rapid transit “Select Bus Service” lines. The implication of New York and New Jersey executing a rapid transit-like through-running plan is that they are also serious about providing better service at lower cost — and that could imperil the jobs of many transit employees.
How might the states begin negotiation? They would be able to negotiate an expansion of service via through-running while also pushing labor for staffing reform. Layoffs would need to be avoided; perhaps the agencies could begin reducing headcounts through attrition. The states would need to offer workers employment under substantially equivalent terms under which they are currently working. Employees that have longer shifts or commutes as a result of the extended geography would have to be compensated. Any attempt to reorganize would require guaranteeing current terms on pensions and benefits. Overall, labor represents perhaps the biggest impediment to integrating agencies and a very significant one to signing a limited joint service agreement.
B. Fare Structures
A key aspect of through-running systems is that they feature an integrated and standardized fare system. Currently, a passenger traveling from Long Island to New Jersey must not only exit the train at Penn Station and walk to a separate area in the station and board a different train but also buy an additional ticket. A passenger from Westchester traveling to New Jersey needs to transfer three times — twice on the subway, and once to NJ Transit — using a total of three entirely distinct payment systems. The absence of regional thinking is no clearer than in the wide range of technologies and fare structures used by New York and New Jersey’s transit agencies. Under a through-running plan, each trip could be bought with a single standardized ticket. The entire system should be served by one technology under one brand. Web-based and mobile ticketing should be developed and their use encouraged.
Fares, which are already currently higher for longer distances, should be set to a limited number of prices based on distance bands, or “zones” for distance outside of Manhattan. Political feasibility will likely dictate that the states guarantee passengers a similar fare to what they are currently paying, at least for the near future. Of course, the system could charge more for commuters going beyond their line’s current terminus, but this is not necessary — because through-routes involve both peak and off-peak service and therefore do not constrain capacity, a “combined” ticket need not cost more than a ticket from the further of the two suburbs to Manhattan.148Peak trips should cost more that non-peak trips. Overall, consumers will benefit from a simple and rational fare structure based on capacity constraints the marginal passenger places on the system. If ridership increases, the agency will benefit as well from additional revenue that can be invested in the system under a “virtuous” cycle.
C. Financing Capital and Operating Expenditure
Both the MTA and NJ Transit have extensive capital plans and operating budgets; integration of these (under a combined entity model) or negotiation of through- running expense (under a joint service model) would be a very challenging process. Nevertheless, there are some simple principles the states could use to begin negotiations. First, assume that the hard assets (trackways, stations, electrical and signaling technology) would remain in the ownership of the state they are located in — as is the case with Metro-North service in Connecticut and MBTA service in Rhode Island. This would help avoid triggering an interstate compact requirement and unnecessary negotiation around sale of difficult-to-value property. The rolling stock is a harder question; under a joint service agreement, they should stay in the ownership of their current agency, but under a combined model they should be sold from New Jersey to the MTA (or from both systems to the “Regional Rail Corporation”) at fair market value. Second, assume that each state should maintain its current operating subsidies, at least for a limited period of time (possibly five to ten years). If it can be proven that, for example, New Jersey underfunds its share while enjoying markedly better service from through- running, it may need to increase its share; however, deviating from the status quo reduces the chances of political approval.
Third, no state should be able to evade responsibility for improving and expanding its capital assets simply because of agency reform. This would need to be carefully negotiated in advance. In a combined entity structure, for example, each state could be required to contribute the amount it has currently budgeted under its capital plan; the average of its previous ten years; or some combination of the two. What about in future years? Two possibilities come to mind. First, the states could leave the issue open to be decided by the joint board of directors with representation from each participating state. Second, the states could agree that each would contribute a fixed percentage of capital expenditure based on a formula (like WMATA’s) reflecting the states’ relevant of number of riders, rider-miles, or stations. Either would be a reasonable solution so long as it is negotiated in advance.
D. Management and Decision-Making
Finding a management and decision-making structure that balances independence with political accountability is difficult for any governmental agency; it is especially difficult when the agency serves urban, rural, and suburban voters and is overseen by politicians at multiple levels across multiple states. The PANYNJ’s struggles on this issue are emblematic. Key to the success of a through-running plan will be the thoughtful delegation of authority to professional managers balanced with strong oversight from funding stakeholders. In this case, the management structure will obviously depend on which option is chosen to execute a through-running plan. For example, a limited joint service agreement would set out which decisions need to be made and a process for making them, but management would be simply governed by the agreement itself. In contrast, a new entity would require a combined board of directors similar to the one overseeing the PANYNJ. In this case, a solitary CEO with control over the whole system should be picked by the Board, providing an agency structure that balances independence with accountability. Careful attention should also be placed on the amount of veto power held by individual board directors. For example, could a representative from New Jersey oppose a major capital project in Westchester County because it held little benefit for New Jersey riders? And how could the type of horse-trading on projects that was apparently endemic at the PANYNJ be avoided?149 These questions are difficult to answer, but governance is extremely important to the long-term success of a through-running system. Global systems with cohesive and sustainable agreements should be studied such that best practices can be adopted in New York.
V. Conclusion
The case for through-running is clear; the method for implementation, far less so. Policymakers have a range of options they could pick from in terms of legal structure and program design. Of course, any proposal must make sense given future plans for infrastructure development in the region. To begin, consider the building of the $8 billion “East Side Access” project designed to bring LIRR trains to Grand Central Terminal. Does this project make through-running obsolete? Not at all. First, it introduces the possibility of through-running trains from Long Island to the Metro-North lines and vice versa. Second, it brings the system one step closer to an ideal through-running scheme — one that includes construction of a tunnel between Penn Station and Grand Central Terminal to give passengers multiple stops in midtown Manhattan. Even if this plan never reaches fruition, East Side Access could eventually allow some Long Island routes to through-run north through Grand Central Terminal and others west through Penn Station, providing connectivity throughout the region.
Another plan likely to be realized is the construction of a new tunnel between New York and New Jersey as part of Amtrak’s “Gateway Development Project,” for which planning was begun after Governor Chris Christie canceled the “Access to the Region’s Core” project in 2010. A new subsidiary to the PANYNJ, the Gateway Development Corporation, will manage the project. The Gateway project is relevant in a discussion about through-running in part because it includes the construction of Penn Station South — the acquisition of an entire block of real estate south of Penn Station to build an additional seven platform tracks.150 At today’s prices, Amtrak would spend between $769 million and $1.3 billion merely to acquire the real estate, let alone build the station.151 On the other hand, the greatest advantage of through-running in New York would be the added capacity at Penn Station. While today officials “cannot take advantage of the additional capacity of new tunnels without expanding the physical capacity of Penn Station,”152 under a through-running plan they could, thereby eliminating the necessity of Penn Station South. Ideally, Gateway officials will also study the possibility of building a tunnel between Penn Station and Grand Central Terminal — as suggested in the Access to the Region’s Core “Alt G” iteration rejected by stakeholders in early discussions of the project — as an alternative to building another stubend terminal.153 Unfortunately, there is no indication that they will.
One plan significantly further off in the future is the “Penn Station Access” project, which will eventually bring Metro-North New Haven Line trains to Penn Station.154 The New Haven Line will be routed over Amtrak’s existing track in Manhattan and pass through six new stations in the East Bronx and on theWest Side of Manhattan.155 In a 2013 presentation on MTA service in Connecticut, the MTA noted that “thru-running between the New Haven Line and New Jersey Transit could link Connecticut and New Jersey business centers and provide access to Newark Liberty Airport.”156 Governor Cuomo’s 2015-16 budget included $250 million in capital funding for the project.157 However, until capacity is created at Penn Station (through East Side Access, which continues to experience delays), the Penn Station Access project cannot be delivered.158 Through-running would create capacity by other means, thereby reducing the barriers to Penn Station Access.159
In sum, it appears that current infrastructure plans in New York City would allow, and, in fact, benefit from through-running in the region. A concerted effort must be undertaken by stakeholders to study the issue, addressing the many outstanding points both discussed and omitted in this paper. Policymakers should navigate the difficult legal, financial, policy, and political obstacles to design a system meeting 21st century standards and needs. The goal of true regional rail service in the New York metropolitan area is both plausible and achievable; residents and travelers across the region deserve nothing less.