Energy Conservation in
Transportation
By Steve Bauer and Josh Basofin
Three-pronged Policy Initiative:
 Expansion of Regional Rail Systems
 Implementation of Growth Management
Legislation
 Establishment of Gasoline Taxes to
Incentivize Rail and Associated Public Transit
Use
Problem Addressed:
 Excessive Energy
Consumption in
Transportation

As a Consequence of
Over-Dependence on
Automobiles
Conclusions:
 Rail expansion, growth management, &
gasoline taxes, when implemented in
conjunction with each other, are effective
means to reduce U.S. energy consumption.
 However, this three-pronged initiative is a
time intensive process and therefore does
not provide an immediate solution.
 Furthermore, political considerations may
constrain implementation of one or all
prongs of this initiative.
History of Public Transit in the US
 1630 Boston--reputed first publicly operated ferryboat
 1835 New Orleans--oldest street railway line still operating (New
Orleans & Carrollton line)
 1883 New York--first publicly operated cable-powered line
(Brooklyn Bridge)
 1904 New York--first electric underground (& first 4-track
express) heavy rail line (Interborough Rapid Transit Co.)
 1938 Chicago--first use of federal capital funding to build a
public transportation rail line
 1946 highest-ever public transportation ridership (23.4 billion)
 1972 public transportation ridership hits all-time low (6.6 billion)
Types of Rail-Based Public Transit
 Light Rail
 Monorail
 Personal Rapid Transit
 Heavy Rail
 Commuter Rail
Light Rail
 Monorail - n. 1. A single rail serving as a track
for passenger or freight vehicles. In most cases
rail is elevated, but monorails can also run at
grade, below grade or in subway tunnels.
Vehicles are either suspended from or straddle
a narrow guideway. Monorail vehicles are wider
than the guideway that supports them.
 Personalized Rapid Transit – a type of
Automated People Mover (APM).
 Small vehicles available for exclusive use
by an individual or a small group, typically 1
to 6 passengers, traveling together by
choice and available 24 hours a day.
 Direct origin to destination service, without
a necessity to transfer or stop at
intervening stations.
 Service available on demand rather than
on fixed schedules.
Heavy Rail
 Heavy rail refers to traditional high platform subway
and elevated rapid transit lines.

Principal characteristics:


Operation over rights of way that are completely
segregated from other uses, with the track placed in
subway tunnels, on elevated structures, or on fenced
surface rights of way, free of grade crossings with
roads.
Trains have two to 12 cars, each with its own motors,
and drawing power from a third rail (or in some cases
from overhead wire).
Heavy Rail (cont’d)


Boarding is from high platforms that are even
with the floor level of the car, allowing large
numbers of people to enter and leave rapidly.
Before World War II, true heavy rail rapid
transit systems existed only in Boston, New
York, Philadelphia, and Chicago. Since the
war, new systems have been opened in
Cleveland, Baltimore, Washington, the San
Francisco-Oakland region, Los Angeles,
Atlanta, and Miami.
Commuter Rail
 Commuter rail refers to passenger trains operated on
main line railroad track to carry riders to and from
work in city centers.

The trains are normally made up of a locomotive and a
number of passenger coaches. The coaches are
dimensionally similar to intercity (Amtrak) coaches, but
typically have higher density seating as the average ride is
shorter.

Commuter rail lines normally extend an average of 10 to 50
miles from their downtown terminus. In some cases service
is only offered in rush hours. In other cities, service is
operated throughout the day and evening and on weekends.
Commuter Rail (cont’d)

Commuter rail systems are traditionally associated with
older industrial cities such as Boston, New York,
Philadelphia, and Chicago, but in recent years new
diesel powered commuter rail systems have been
inaugurated in cities as diverse as Los Angeles and
Burlington, Vermont, as traffic congestion has made
auto commutes much more difficult. Many additional
cities are planning commuter rail lines currently.

Relatively inexpensive to build as they normally
operate over existing rail lines. However, typical
planning challenges are negotiating use of the tracks
with very busy freight rail operators and finding
adequate funding both for construction and for
operating subsidies.
Existing State of Rail-Based
Public Transit Nationwide
From DC to Portland, Cities across the country have a wide
variety of public transit systems.
Some Examples
 BART – San Francisco

Runs partially under the Bay
 MAX – Portland

Runs exclusively on street level
 METRORAIL – Washington, D.C.

Runs partially underground and
partially on street level
Cars vs. Public Transit
Decreases in Public Transit Ridership
Coincide with Increases in Car use.
Public Transit Ridership Statistics
Car Usage Statistics
US population in 1969: 202,677,000
US population in 1995: 263,082,000
More Transit and More Cars?
 While public transit ridership continues its upward
trend, the number of vehicles on the road and the
number of miles driven is also increasing.
 In short, Americans are using both modes of
transportation at higher rates.
The Solution: Dethroning the Car!
By Increasing Public Transit Ridership
 The words of John Muir –
“Tug at anything and you will find
it hitched to everything else in
the universe”
may be better stated as:
“Tug at anything and you will find
it hitched to an automobile”
Methods to Dethrone the Car…
 Reduce Dependence Upon Automobiles
 Increase Public Transit Ridership
Aspects of Increased Ridership
Increased Ridership means:


Accommodating new riders on existing rail
lines
Better serving urban and suburban
communities
INCREASED RIDERSHIP
A Chicago Area Case Study
Accommodating New Riders On
Existing Rail Lines
 The current metropolitan
system can accommodate
nearly a 25% increase in
ridership.
 Beyond that, new rider
accommodation entails
more frequent service,
more cars, or rail
extension.
Is Extension of Existing Lines Necessary to
Better Serve Chicago Area Communities?
Metra is Currently Planning Several
Extensions
 North Central Service Expansion
 SouthWest Service Improvements and
Extension
 Union Pacific West Line Extension
The Reality:
 Rail extension is
necessary to make
public rail transit a
more viable solution
for all.
 Light rail, buses,
and/or transit
oriented development
are necessary to fill
the gaps.
Potential Legal Implications
Associated With Rail Extension
 Nuisance Claims
 Takings Claims
 Relocation of Public
Utilities Claims
Nuisance Claims
 Among those things applicable to rail transit that are known
to constitute a nuisance are:

That which annoys and disturbs property, rendering its
ordinary use uncomfortable

Annoyance; anything that essentially interferes with
enjoyment of life of property

Interference by means of noise, vibration, etc.
Common Classifications of Nuisance
 Public
 Private
 Mixed
Public Nuisance
 Affects an indefinite number of persons or all
the people within a particular locality
 Caused by failure to perform a legal duty
 Intentionally causing or permitting a condition
to exist that injures the public
Private Nuisance
 Affects ONLY an individual or a few persons
 Includes any wrongful act that: destroys,
deteriorates, interferes with or hinders use or
enjoyment, or causes a special injury different
than that sustained by the public

Importantly, a private nuisance can constitute
a public nuisance and vice versa…
Mixed Nuisance
 Both public and private in its effects

Injures many persons or all of a particular
locality

Produces special injuries to private rights
Further Classifications of Nuisance
 Nuisance per se
 Nuisance in fact (a/k/a Nuisance at law)
Nuisance per se
 An act, occupation or structure that is a
nuisance at all times and under all
circumstances
 Location and surroundings are irrelevant
 Injury is certain to be inflicted in some form
Nuisance in fact
 Similar to nuisance per se

Act, occupation, or structure
 Location and surroundings ARE relevant
 May become a nuisance by reason of the
particular location and surroundings
 May become a nuisance by reason of the
manner in which it is performed or operated
Would Construction of New Rail Lines
in Areas of Existing Development be
Prone to Nuisance Claims?
Case Law is Clear as to Nuisance Claims
from Use of Rail Systems for Private
Purpose…
 “The universally accepted rule is…that the
operation of a lawfully constructed railroad in
an ordinarily prudent and careful manner,
without negligence or abuse, does not, by
reason of…noise…vibration, and other
objectionable features which are necessarily
incident thereto and which are common to the
public at large, constitute an actionable
nuisance, since the doing of that which has
been lawfully authorized cannot constitute a
nuisance.” City of Hamilton v. Hausenbein
(OH), 139 N.E.2d 459
Case Law is also Clear as to Nuisance Claims
from use of Rail Systems for Public Purpose…
 Public railroad functions are protected from nuisance
claims “so long as they are exercised without
negligence and in the customary and appropriate
instrumentalities….” Robertson v. New Orleans &
G.N.R. Co (MS), 129 So. 1180
 “Noise…[is a] necessary incident[ ] of the
construction and operation of [an elevated
railway], and, if every property owner could
recover in all such cases, the making of
public improvements would become
practically impossible.” Griveau v. S.
Chicago City Railway Co. (IL), 130 Ill.App.
519 (1st Dist.)
 “The annoyance and inconvenience occasioned [by
noise from train movement is] to be viewed from the
same legal standpoint as are the annoyance and
inconvenience necessarily suffered by those who live
along a turnpike or other highway.”
 “The perfectly proper use of [rail] vehicles constitutes
an annoyance, from which people suffer and
sometimes seriously, but this inconvenience is an
injury for which there is no redress.”
Dean v. Southern Railway Co. (MS), 73 So. 55
However, it is unclear how this
case law would influence rail
expansion into well-established
neighborhoods.
Takings Claims
Los Angeles County Metropolitan Transportation Authority
v. Continental Development Corporation
Are Takings Claims Likely
to Stem from Rail Expansion?
 Just compensation must be provided

No more and no less than making the landowner
whole for the loss/damage sustained
 Inverse Condemnation/Nuisance

When the consequences of the project are “not
far removed” from a direct physical intrusion or
amount to a nuisance
 Severance Damages

When diminution in the FMV of the remainder of
the property is caused by the project
Los Angeles County Metropolitan Transportation
Authority v. Continental Development
Corporation (1)
The Facts:
 Continental Development Corporation (CDC) owned
a 4.43 acre (192,970.8 sq. ft.) parcel of land
 The Los Angles County Transportation Commission
(LACTC) brought an eminent domain proceeding to
acquire three interests in the land for elevated light
rail construction



Air rights easement (approx. 5 feet on avg.)
Construction easement (approx. 5 feet on avg.)
Fee (373 sq. ft. area)
Los Angeles County Metropolitan Transportation
Authority v. Continental Development
Corporation (2)
 Issue: Whether CDC could recover
severance damage to its property based on:



Building redesign
Noise mitigation
Visual Impact
Los Angeles County Metropolitan Transportation
Authority v. Continental Development
Corporation (3)
 Severance Damages – the diminution in the FMV of the
remainder land caused by the project
Two Kinds of Benefits:
 General Benefits – the increase in the FMV of the land &
community from advantages that come from the
improvement
 Special Benefits – the increase in the FMV of the land
from the mere construction of the improvement
– are peculiar to the land in question
Los Angeles County Metropolitan Transportation
Authority v. Continental Development
Corporation (4)
 Eminent domain requires a set-off of general
and special damages against both severance
damages and compensation for the taking
Conclusion:
 A land owner shall receive compensation
for the damage he suffers based upon the
land taken and the damage or value of the
project’s construction.
 Just compensation can be off-set by value
added to remaining land
Railway expansion will likely require
relocation of public utilities
 Within public rights-of-way
 Outside public rights-of-way
Relocation of Public
Utilities Claims
Northwest Natural Gas Co. v. City of Portland
Northwest Natural Gas Co. v.
City of Portland (1)
The Facts:
 Tri-Met provides and operates a light rail transit (LRT)
system in the Tri-County Portland metropolitan area
in cooperation with the City of Portland
 Tri-Met was constructing rail lines to provide public
transit between neighboring Gresham and downtown
Portland
 Each of the utilities doing business within the City
previously received authority to operate and maintain
their facilities within the public rights-of-way
Northwest Natural Gas Co. v.
City of Portland (2)
The Facts (continued):
 The City of Portland mandated the relocation of all
public facilities within the public rights-of-way to
enable construction of the LRT.
 Four investor-owed public utilities (gas, power, &
phone) sought a declaration that the City could not
require uncompensated relocation of their facilities to
accommodate Tri-Met’s construction of the LRT.
Northwest Natural Gas Co. v.
City of Portland (3)
 Issue: Whether the City had authority to
require uncompensated relocation of public
utilities to accommodate construction of the
LRT system.
Northwest Natural Gas Co. v.
City of Portland (4)
 Trial Court: City may require utilities to
relocate their facilities within public rights-ofway without compensation
 Court of Appeals: Reversed in part
 Oregon Supreme Court: Reversed.
Northwest Natural Gas Co. v.
City of Portland (5)
 Holding:

“Municipal ownership and operation of a mass transit
system is a traditional governmental function.”

Municipalities need only act within applicable statutes
and within the authority of their charters and
ordinances.

Municipalities have the right to act “in the interest of
public health and general welfare.”

“The regulation of [a] city[’s] streets for purposes of
transportation is a proper exercise of [its] governmental
authority.”
Northwest Natural Gas Co. v.
City of Portland (6)
 Conclusion:

Utility companies may not recover the costs of
relocation of their facilities against the City or
the transportation authority for the construction
of the light rail transit system within the public
rights-of-way.
But…
What about relocation of public
utilities not located within public
rights-of-way?
Solutions:
 Negotiate Relocation/Alteration
 Purchase
 Lease
 Eminent Domain/Condemnation
Urban Growth Limits are Integral to
Increased Transit Ridership
 Growth Limits are Good for Transit




Optimize use of transit facilities by reining
in development
Encourage transit oriented developments
Ensure financial viability of transit systems
Enable better planning and transit
expenditures
Suburban Growth Rates Have
Grown Steadily in the U.S. Since
World War II
Such Growth Requires an Increase in Housing
Stock to Support the Increased Population
 People want the “American Dream:”

Detached single-family residential homes



Requires increased land area
Proliferates urban sprawl
Requires inefficient expansion of roadways
and public commuter systems
Current Metropolitan
Growth Rates
A Chicago Area Case Study
(Continued)
Like many other large U.S. metropolitan
areas, the Chicago area has experienced
high land consumption and population
growth rates
Chicago Area Geography
 The region is composed of
six counties - McHenry,
Lake, Kane, DuPage, Cook,
and Will.
Projected Growth:
 The Chicago area includes the City of Chicago and
272 surrounding suburban municipalities
 The Chicago area will grow by 1.6 million people over
the next three decades
 The Chicago area will experience an increase of one
million additional cars by the year 2030
Land Development (1972/2030)
Evaluating the Capability of
Current Planning Measures to
Regulate Urban Growth
Current Planning Efforts are
Insufficient
 Many municipal and county zoning ordinances
proliferate urban sprawl by establishing:




Prohibitions on multi-unit dwellings
Excessive minimum lot sizes
Excessive maximum density regulations
Prohibitions on mixed-use development
The Net Effect:
 In the Chicago area alone, continued
developmental patterns will result in the
development of 500 square miles of open
space by 2030
 Driving times will increase by 14 minutes
per person by 2030
 Increased traffic congestion
 Deterioration of air quality
Types of Growth Management
 Urban Growth Boundary (UGB)
 Intergovernmental Growth Management (IGM)
The Urban Growth Boundary(UGB):
A Potential Solution
What Is a UGB?
 The UGB is a line drawn on planning and
zoning maps outside of current municipal
boundaries to show where and how a
municipality expects to grow
 The UGB designates undeveloped
urbanizable land that will accommodate future
municipal growth
 Urban development is prohibited on all land
outside the UGB, thus restricting urban growth
How Is the UGB Established?
 A Collaborative Effort Between:




Each municipality that is enveloped by the
UGB
The county or counties within which the
municipality is located and/or contiguous
Special service districts
Local area citizens
How Much Land is Needed in the
UGB?
The Formula:
AVLN – AVLA = Urbanizable land needed in the UGB
AVLN: Acres of vacant land needed to accommodate expected growth
within the community
AVLA: Acres of vacant land already available within the current
municipal boundary
How is the Location of the UGB
Established?
Three General Factors of Consideration:
 Efficient Use of Land
 Protection of Open Space & Agricultural
Land
 Cost-effectiveness, as by ensuring the
orderly and economic provision of pubic
services.
Can the Boundary of the UGB be
Enlarged?
Yes. However, enlargement of the boundary is
contingent upon compliance with statewide planning
goals. Enlargement is permitted:
 When founded upon necessity
 After examining the potential expansion by
considering the three factors utilized in establishing
the initial boundaries of the UGB
 After determining that the proposed area of
expansion is indeed the best place to expand
Successful UGBs Accomplish the
Following Goals:
 Contain Urban Sprawl
 Encourage Mixed-Use Zoning
 Encourage In-fill Development and Redevelopment
 Control Costs of Public Services and Facilities
 Create Certainty



Land Consumption
Land Use
Public Service and Facility Expansion
How is the UGB Good for Transit?
 UGBs encourage mixed use development,
creating “town centers” in which people live,
shop, and work near public transit lines.
 Such development reduces the need and
dependence upon automotive transportation.
The End Product:
Mass transit rail systems
can be extended and
improved with certainty
But…
Are UGBs Unconstitutional Takings?


UGBs have not been challenged on
constitutional grounds as takings.
However, UGB proponents remain concerned,
as the current Supreme Court is increasingly
protective of private property rights.
Physical Takings v. Regulatory Takings
 Physical takings are
 The Supreme Court has
also recognized so-called
those primarily
regulatory takings.
contemplated by the
 The classic case:
5th Amendment
“government actions do
 The classic case: the
not encroach upon or
government physically
occupy [one’s] property
appropriates one’s
yet still affect and limit its
land for public use
use to such an extent that
 Always require
a taking occurs.”
compensation
 Require further analysis
Total Takings v. Partial Takings
 Total Taking
 Partial Taking (Penn Central)


“A regulation which
denies all economically
beneficial or productive
use of land” will require
compensation under the
Takings Clause.
The following factors must
be balanced
 Regulation’s economic
effect on the landowner
 Regulation’s interference
with reasonable
investment-backed
expectations
 Character of the
government action (is
there a “substantial public
purpose?”)
Are UGBs a Total Taking?
 In Palazzolo v. Rhode Island, a plaintiff was unable to
convince the Supreme Court that he suffered a
regulatory taking when he was limited to building one
residence on his eighteen acre lot. The court held that
the land was not “economically idle” and therefore not
a “total taking.”
 Landowners in Oregon that live outside the UGB are
allowed to do even more than the Palazzolo plaintiff,
such as building several houses on ten-acre lots,
using land for agricultural purposes, and even
converting land to urban uses if rural uses are
impracticable.
 Thus, Oregon’s UGB law is probably not a total
taking.
Are UGBs a partial taking?
 Even if a state has not enacted a UGB, a proposed UGB
will interfere with investment-backed expectation only if the
landowner reasonably relied on its absence.

Municipalities may avoid this by including land
already zoned for intense development within
UGBs.
 In Agins v. Tiburon, the Supreme Court held that limiting
urban sprawl is a legitimate state interest justifying
restrictions upon development of rural and suburban land.

Thus, UGBs are probably not a partial taking,
because their purpose is to limit sprawl.
Intergovernmental Growth Management
(IGM): A potential solution AND alternative
to the UGB
Purpose of IGM:
 A mechanism for municipalities and counties
to work together
 Establishes regional councils composed of
representatives from each county and
municipality within the region
 Encourages development and
implementation of intergovernmental plans
Importantly, the IGM is More Carrot than
Stick.
This is not a minor distinction!
Conclusion:
UGB and IGM both effective
 However, the feasibility of a growth control is
dependent upon variations among regions
and states:


Need
Politics
Which is Best for the Chicago Area?
 1 million additional cars
by 2030
 1.6 million additional
people
 High land consumption
trends
 And mixed feelings
about growth controls
and public transit
GAS TAX
 A GAS TAX WOULD



Incentivize public transit ridership
Fund extensions to current transit lines or installation of
new systems
Encourage fuel efficiency
POINT
 “Western Europe stands
as a testament to the
effects of higher
transportation costs on
land use….It is no
coincidence that
European nations that
exact high fuel taxes from
motorists also
have…limited sprawl and
heavily patronized transit
services.”
COUNTERPOINT
 We would need a
considerable tax to make
Americans “feel it” in their
pocketbooks:
 “Eleven percent of the
1996 average
disposable income
divided by the amount
of gasoline consumed
that year gives the
price per gallon ($5.72)
that is necessary for
gasoline to consume
the same percent of
personal disposable
income as was
consumed by gasoline
in 1981.”
THE PUBLIC SUPPORTS PUBLIC
TRANSIT
 Four in five (81 percent) Americans believe that
increased investment in public transportation
strengthens the economy, creates jobs, reduces traffic
congestion and air pollution, and saves energy.
 The survey found that almost three-quarters (72
percent) support the use of public funds for the
expansion and improvement of public transportation.
 “Most Americans, even those living in rural areas of
the country, agree that their community needs more
public transportation options.”
 “Recent studies suggest that people will readily walk ¼
mile in order to take advantage of public
transportation. People will walk even further if the
transit includes rail….”
Conclusions:
 Rail expansion, growth management, &
gasoline taxes, when implemented in
conjunction with each other, are effective
means to reduce U.S. energy consumption.
 However, this three-pronged initiative is a
time intensive process and therefore does
not provide an immediate solution.
 Furthermore, political constraints may not
enable one or all prongs of this initiative to
be implemented
Feasibility of implementing the initiative
 Pros
 Cons
 Rail-based transit enjoys
 There may be opposition
wide public support
from the terminally
addicted
 Partially self-financing
 Associated costs likely to
 Mitigate sprawl, foster
exceed revenues from gas
redevelopment (infill
reinvestment), and increase  Increased property values
property values
 Economic impacts
 Reduce fossil fuel
consumption