Metro safety board’s arrival delayed
OVERSIGHT PANEL MAY NOT DEBUT TILL 2018 Doubts grow over ability to overhaul transit system
It will be at least fall — and more probably next year — before an overdue Metro safety oversight body is up and running, further delaying millions in federal transit aid that agencies in the District, Maryland and Virginia are counting on.
What’s more, the three jurisdictions’ failure to meet a federal deadline for establishing the Metro Safety Commission after more than a year and a half casts serious doubt on their ability to achieve the bigger task of overhauling the transit agency’s governance and funding structure before financial problems overwhelm it, analysts said.
“There is really a lack of ownership” of Metro by the three jurisdictions, said Emeka Moneme, a former District transportation director and Metro board member, who now is deputy executive director of the Federal City Council. “The most recent Metro Safety Commission process was a really good example,” he said.
The three jurisdictions blew a Feb. 9 deadline to create the commission, which will be the first independent oversight body with
broad authority to monitor and enforce safety standards for Metro’s rail operations. The commission will take over that responsibility from the Federal Transit Administration, which assumed the job in October 2015 in an unprecedented move after concluding that existing oversight was largely ineffective.
The District approved legislation in December creating the commission, but officials have since discovered that typos in the bill mean it will have to be voted on again. The Virginia General Assembly approved its version at the end of February, and it awaits Gov. Terry McAuliffe’s signature. The Maryland House unanimously approved its bill Thursday.
But even after the three bills are signed into law, it will take months to get congressional approval and complete other tasks necessary to set up the commission, officials said. The agency then has to be certified by the FTA before about $15 million a year in federal transit aid resumes flowing.
“We’re hoping to get it done before we leave office,” Virginia Transportation Secretary Aubrey Layne said. His boss, McAuliffe (D), steps down in January. So what went wrong? Federal officials point to footdragging and political infighting by the region’s leaders. They fault McAuliffe and Maryland Gov. Larry Hogan (R) for refusing to call special legislative sessions last year to approve the bills.
The area’s top elected officials say that they were given an unrealistic deadline and that the FTA was slow to provide guidance they needed.
“All of this [pushback] is the same tit-for-tat, back-and-forth grumbling that happens in this region, and none of it quite frankly tends to lead to action,” said former transportation secretary Anthony Foxx, who made the decision to put Metro’s rail operations under FTA oversight. “The ball has never been hidden from the jurisdictions” about what was required, he said.
‘Ridiculous’ and ‘inexcusable’
It was July 2015 when Foxx summoned McAuliffe, Hogan and D.C. Mayor Muriel E. Bowser (D) to a meeting to discuss the future of Metro and press them to move on creating a new safety oversight agency. The meeting took place six months after the smoke incident near the L’Enfant Plaza Metro station that resulted in the death of one rider and injury to scores of others.
Foxx said he left that meeting with the expectation that the three would move immediately so legislation authorizing the commission would go before the Maryland and Virginia general assemblies convening in January 2016. All three jurisdictions have to approve identical bills.
“My message was, ‘Folks, the house is on fire; we’ve got a big problem here,’ ” Foxx recalled in a recent interview.
Foxx did not get the urgent action he anticipated. Senior staff met to discuss the legislation but got bogged down by disagreements over whether a new interstate compact — similar to the one that governs Metro as a whole — would be legally necessary for the commission. (They eventually decided it would be.)
In addition, Hogan felt the meeting was mainly for show and was frustrated that Foxx did not take responsibility for Metro in light of the fact that the Metro board chair at the time, Mortimer Downey, was a federal appointee.
“Our takeaway was that it was more appearance than substance,” Hogan spokesman Doug Mayer said. “[Foxx] laid a lot of the blame on the jurisdictions when at that very moment in time, the federal appointee was leading the board. The governor pushed back forcefully on that.”
In October 2015, Foxx stepped up the pressure, giving FTA oversight of Metro safety. In February 2016, he set a one-year deadline for the jurisdictions to act or lose 5 percent of their federal transit aid. He warned them repeatedly that the deadline was firm.
The deadline caused bad feelings from the start. For one thing, Foxx said he imposed it because the jurisdictions had failed to submit the legislation in the 2016 legislative sessions as he expected.
But the District, Maryland and Virginia complained they never agreed to file the bills by then and could not have done so because the FTA did not provide final written guidance about how to set up a commission until March 2016.
Foxx and the FTA dismissed that objection, saying existing federal law provided enough information for the jurisdictions to act. They also said FTA staff were in regular contact with their regional counterparts to answer questions.
A bigger problem was the 2017 legislative schedules in Virginia and Maryland. Officials say that since the sessions normally begin in mid-January, it was unrealistic to expect them to pass the bills by early February. Even if they did so, it would take an additional six to nine months to set up the commission and get it certified.
“The timelines they implemented were really not workable when you have three different jurisdictions with different timelines for their legislative session and the lateness of the materials they got us,” Mayer said.
But that invited the question of why Maryland and Virginia did not call special legislative sessions — say, in September — to meet the deadline.
“It would have been worthy of special sessions, because the [safety] issues are that acute,” Foxx said.
The governors did not think the sessions were justified given the cost; the situation did not constitute an emergency, and the FTA still had not provided final drafts of relevant rules.
Moreover, calling a special session is politically risky because it allows legislators to take up issues that the governor might prefer to avoid. McAuliffe and Hogan face legislatures controlled by the opposing party.
“Were the governor to call a special session on this, it automatically lets other things come into play,” said Layne, the Virginia transportation secretary.
U.S. Rep. John Delaney (D-Md.) was aghast that Hogan and McAuliffe balked at recalling lawmakers.
“It’s ridiculous. It’s inexcusable,” said Delaney, who has submitted a bill that would give Metro an extra $750 million in federal funding in exchange for changes in the agency’s governance structure and labor contracts. “They call special sessions all the time.”
Then-Maryland Gov. Martin O’Malley (D) convened a special session in 2012 on expanded gambling. McAuliffe called one in 2014 to resolve a budget impasse.
‘They’re just not motivated’
Delays also arose as individual jurisdictions raised objections to different parts of the bill. The District modified it to guarantee the commission’s work would be open to the public. Virginia insisted that each jurisdiction have some veto powers on the commission.
As the Feb. 9, 2017, deadline approached, the region was cautiously hoping that it had made enough progress that the FTA would refrain from imposing the financial penalty. Officials pointed to the D.C. Council’s passage of the legislation in December, combined with the progress that the bills had achieved in Richmond and Annapolis.
But Foxx’s successor, Elaine Chao, enforced the penalty just days after taking office.
The impact is falling especially hard on rail and bus systems in Virginia and Maryland outside the Washington area that rely heavily on federal grants.
Officials said they were juggling funds within their budgets to minimize the harm, but that will become more difficult as the suspension continues into the next federal fiscal year beginning Oct. 1.
Layne was concerned that imposing the sanction marked an escalation in the region’s tussle with the federal government.
“It’s more politically damaging than financially,” Layne said. “We should be working hand-in-hand with DOT on this,” in reference to the Transportation Department.
Even with the legislation approaching final approval, obstacles lie ahead.
Congress is expected to take weeks, at least, to approve the interstate compact creating the commission. It could take longer if lawmakers seek to add amendments to the measure, such as to change Metro’s labor practices.
Then, the commission’s nine members must be appointed, an executive director and staff hired, and bylaws written.
Finally, the FTA must certify that the commission meets its standards. Regional officials are already wringing their hands over how difficult it may be to get that final blessing.
In many ways, the main lesson from the tortuous delay in creating the safety agency is the warning it sends about how difficult it is to accomplish anything ambitious regarding Metro.
All parties agreed from the start that it was necessary and important to create the commission. But Metro’s convoluted governing structure — involving two states, a federal district and the U.S. government — complicated the process.
The same problematic structure also is hampering initiatives underway in the region to streamline Metro’s governance and obtain fresh sources of funding.
General Manager Paul J. Wiedefeld has warned that he will need significantly more money starting in mid-2018, but there is no consensus on how that would be achieved or what overhauls would have to occur beforehand.
Moneme, of the Federal City Council, said the experience with the safety commission led his influential business group to propose that Congress create an emergency control board to run Metro. He said such intervention is necessary because the mayor and two governors do not place a high enough priority on Metro.
“What we saw over the last two years with the safety commission is they have other pots boiling on the fire, they have other issues,” Moneme said. “Frankly, they’re just not motivated.”
Emergency personnel conduct an evacuation from a Metro train on a bridge along the Yellow Line in August. A safety oversight body for the transit system is experiencing a failure to launch.
A three-car Metro train derails near the East Falls Church station in Arlington in July. An overdue Metro Safety Commission might not be established until 2018 amid bureaucracy and infighting.