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At a Senate Commerce, Science, and Transportation Committee hearing today on the future of rail transportation and safety, U.S. Senator Maria Cantwell (D-WA), the Ranking Member of the committee, pushed officials from Amtrak and the National Transportation Safety Board (NTSB) to make safety a top priority.
“We need to stop the next DuPont from happening,” Cantwell said at the hearing.
To improve rail safety throughout the country, Cantwell emphasized the importance of implementing Positive Train Control (PTC) – a safety technology that according to the NTSB could have prevented the fatal Amtrak 501 derailment near DuPont, WA – and addressing freight rail congestion through infrastructure investment.
“Safety must remain a top priority,” Cantwell said. “We need to continue to make sure that we are having situational awareness of the challenges that come with participating in a busy transportation corridor. Obviously Positive Train Control… is a key component of that, and as we consider the number of freight trains coming through and the impacts on the daily lives, we need to make sure that we’ve learned the lessons from the DuPont accident and everything that comes with it.”
In her remarks, Cantwell highlighted the Pines Road crossing in Spokane Valley – which recently received federal funding to improve the intersection, a grant application Cantwell supported – as one example of the impacts of increasing rail congestion.
“56 freight and 2 passenger trains pass through [the Pines Road intersection], creating 3 hours of rail-related closures daily,” Cantwell said. “That means that the challenge of moving people and moving freight in our region… is becoming more and more challenging. Three hours every day when traffic is interrupted, three hours every day when accidents between cars and trains are more likely, and three hours a day when emergency vehicles are blocked from getting where they need to go.”
The number of freight trains traveling on Washington state rails is only expected to grow as businesses around the country continue to reach international markets through Washington state ports. In 2014, 121 million tons of freight were shipped by rail throughout the state. By 2035, that number is expected to more than double, to 260 million tons of freight. That increase will also impact crossings like Pines Road, which is expected to see as many as 114 trains pass through every day by 2035.
In her role on the Commerce Committee, Cantwell has been a consistent advocate for increasing accountability and investment in rail safety in the United States. In July of 2015, as the Senate considered the DRIVE Act, Senator Cantwell expressed concern that the bill would delay PTC implementation and roll back safety protections. In December of 2017, Cantwell joined her Senate colleagues from the Pacific Northwest to demand railroads be held accountable for PTC implementation. In January 2018, Cantwell led members of the Washington Congressional delegation in calling for a comprehensive update from the Federal Railroad Administration on the nationwide implementation of PTC. And in March 2018, after calling for a hearing in the wake of the DuPont derailment, Cantwell pressed Amtrak CEO Richard Anderson on rail safety and PTC implementation.
Samuel B. Boxerman is a Partner with Sidley Austin LLP in the firm’s Washington, DC office and is the WLF Legal Pulse’s Featured Expert Contributor on Environmental Law and Policy.
On June 10, the Supreme Court granted certiorari in Atlantic Richfield Co. v. Christian to consider whether the federal Superfund law bars common-law claims to restore property to a cleanup level beyond what EPA has decided is sufficient to protect the public—or whether state common law provides an avenue to seek a more protective cleanup outside the process established under CERCLA. The Court will hear arguments in the case during its October Term 2019.
The case concerns the former Anaconda Co. Smelter, a 300+ acre copper ore smelting and processing operation that started up back in 1884. Atlantic Richfield (ARCO) purchased the facility in 1977 and then closed the site in 1980. EPA placed the property on its National Priorities List in 1983 and substantial cleanup from the historic operations has been completed, with the remaining remedial work in process. As part of the cleanup, EPA directed the company to remediate residential yards and drinking water wells within the Site to a defined cleanup level for arsenic that EPA determined would be protective of human health and the environment. ARCO has reportedly spent more than $400 million in cleanup costs to date.
The plaintiffs are property owners who claim the Smelter has damaged their property, and they brought various state-law claims against ARCO including (1) injury to and loss of use and enjoyment of real and personal property; (2) loss of the value of real property; (3) incidental and consequential damages, including relocation expenses and loss of rental income and/or value; (4) annoyance, inconvenience, and discomfort over the loss and prospective loss of property value; and (5) expenses for and cost of investigation and restoration of real property.
ARCO did not contest that the plaintiffs could seek money damages – thus only the last claim for “restoration damages” is at issue before the Supreme Court. Those would be the costs to restore the properties beyond what EPA has required. The plaintiffs had hired an expert to determine what actions would be required to “restore” their properties to pre-contamination levels, and sought to recover the expected cost of those efforts—the “restoration damages”—which would be placed in a trust account and distributed to pay for restoration work.
ARCO contended that CERCLA bars the plaintiffs’ claim for restoration damages—that as EPA has selected the remedy for the Site, a plaintiff cannot go to state court to ask a judge to impose an additional cleanup remedy beyond what EPA had established. The Montana Supreme Court disagreed and ordered the case to proceed.
In response, ARCO sought certiorari arguing that (1) the claim is effectively a challenge to EPA’s selected remedy which CERCLA does not allow at this time, (2) the plaintiffs are themselves potentially responsible parties under CERCLA and thus cannot take a cleanup action that has not been approved by EPA, and (3) the claim otherwise conflicts with CERCLA and thus is barred by conflict preemption. During briefing, the Court asked the federal government to weigh in—and the Solicitor General filed a brief that agreed with ARCO that the state court decision was incorrect, but still urged the Court to deny review as premature and to allow a trial court to first decide if damages were warranted.
Having taken the case notwithstanding the SG’s recommendation, it would seem more likely than not that the Court has done so in order to reverse the state court’s ruling. If it does not, the decision could set a very unhelpful precedent under CERCLA. CERCLA provides a stepwise, process for stakeholders to participate at each step in EPA’s remedy selection decision. EPA considers public input and then chooses a remedy based on an administrative record, applying the criteria set forth in CERCLA and governing regulations. That remedy is then final and is not subject to judicial review, unless and until EPA brings an action itself to enforce the remedy or recover its cleanup costs. That certainty is crucial to private parties’ willingness to step up and agree to conduct cleanups, because if private parties implement what EPA directs, that will ensure them some measure of peace. But, if any unhappy landowner could upset EPA’s choice in a de novo trial in state court, a private party likely will be far less willing to settle with EPA. That would likely mean more litigation and less cleanup.
I continue to be a strong supporter of our rail industry—both freight and passenger. Rail service is safe and efficient. It also reduces congestion on our highways and spurs economic growth.
In Mississippi, for example, we have 26 freight railroads, 2,400 miles of track, five of the seven Class Ones, two long-distance Amtrak Routes, 10 stations, and more than 100,000 annual riders. Rail is vital to Mississippi.
I have been a tireless advocate for the restoration of the Gulf Coast Passenger Service, which was suspended in 2005 after Hurricane Katrina.
With funding support from DOT, Amtrak, and the states, I am pleased to report that Mississippi, Louisiana, and Alabama are likely once again to have this Amtrak route and that will give Mississippi a third Amtrak route.
Restoration of this service would support growing population centers, connect tourist destinations, bring new jobs, and improve the region’s quality of life. This will make a positive difference for the communities and people of the Mississippi Gulf Coast.
This hearing provides an opportunity to examine the state of passenger rail and consider how to support existing routes like the Southwest Chief and restore Gulf Coast service.
In 2015, I introduced -- along with Senator Booker -- the Railroad Reform, Enhancement, and Efficiency Act, which reauthorized Amtrak. When the bill’s provisions were included in the Fixing America’s Surface Transportation Act, or FAST Act, it authorized funding levels for Amtrak, created new rail grant programs, made improvements to existing rail financing programs, and changed Amtrak oversight and planning activities. The FAST Act and those rail provisions expire at the end of FY 2020. It is important for us to examine what aspects of this important legislation have worked and what should be improved.
This hearing is an opportunity for witnesses to discuss the impact of Amtrak reauthorization in the FAST Act and how Congress can support rail service in the next reauthorization bill.
In the FAST Act, I also led the creation of the Consolidated Rail Infrastructure and Safety Improvements grant program, known as CRISI. This program provides grants to improve the rail network. CRISI strengthens intercity passenger rail, supports capital projects, and boosts rail safety initiatives.
Among the most important safety initiatives for rail is the deployment of Positive Train Control (PTC), which is designed to prevent tragic accidents such as the Amtrak derailment in the state of Washington. Timely implementation of PTC is also important that the committee will be holding a full committee hearing on this in the near future. In addition, earlier this week the NTSB issued its report on that particular accident.
I hope our witnesses will discuss ways to support further capacity, enhance safety, and other improvements for passenger and freight rail service in the next Amtrak reauthorization.
One area that still needs improvement is on-time performance of passenger rail. For Amtrak to be successful, its trains must be able to run on time. With only 43.8 percent of long-distance trains arriving at stations on schedule, Amtrak’s on-time performance lags behind comparable transit networks.
I hope our witnesses will provide suggestions to improve Amtrak’s on-time performance while maintaining the overall fluidity of the nation’s rail network.
I look forward to a robust discussion of passenger and freight rail service and again thank our witnesses for testifying this morning.
I will now recognize my friend and the Ranking Member, Senator Cantwell.
The Committee on Small Business will meet for a hearing titled, “Crushed by Confessions of Judgement: The Small Business Story.” The hearing is scheduled to begin at 11:30 A.M. on Wednesday, June 26, 2019 in Room 2360 of the Rayburn House Office Building.
Time and again, small businesses report one of the biggest challenges they face in starting, operating, or expanding a business is access to capital. Unfortunately, some small firms fall victim to merchant cash advance companies who require borrowers to sign a document called a confession of judgment (COJ) as part of an application. By signing, small business borrowers agree in advance to automatically lose in the event of a legal dispute. That lender can then accuse a borrower of not paying, without presenting proof, and have a court judgment signed by a clerk the same day. At that point the lender can present the COJ to the borrower’s bank demanding funds, leaving small business owners penniless overnight and forced to close their business. This hearing will enable the Committee to examine this practice as Members seek to address this issue. Members will hear from a variety of witnesses detailing the legalities of the practice, its use, and impact on small business borrowers.To view a livestream of the hearing, please click here.
Mr. Hosea Harvey
Law Professor and Consumer Finance Law Expert
Mr. Jerry Bush
JB Plumbing & Heating of Virginia, Inc.
Mr. Shane Heskin
White and Williams, LLP.
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Evan Tager is a Partner with Mayer Brown LLP in the firm’s Washington, DC office and is the WLF Legal Pulse‘s Featured Expert Contributor on Judicial Gatekeeping of Expert Evidence. Mr. Tager is joined on this post by Matthew Waring, an Associate with the firm.
When we reported in November 2018 on the Florida Supreme Court’s decision in DeLisle v. Crane Co., we predicted that the court’s decision to reject the “Daubert standard” for expert testimony might be “short-lived,” given that three of the Justices who had joined the majority—all of whom were generally perceived as “liberal” jurists—were about to retire and be replaced by a Republican governor. Last month, in In re Amendments to the Florida Evidence Code, the new roster of Justices proved us right and adopted Daubert. We aren’t surprised by the outcome, though we didn’t expect it to come quite so soon.
To refresh your memory about the issues here, in federal courts (and most state courts), the admissibility of expert testimony is determined under the reliability standard announced by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. But a few states still apply the “Frye standard,” which looks only to whether the scientific technique used by a proposed expert witness is “sufficiently established to have gained general acceptance in the particular field in which it belongs” and does not consider the reliability of that technique in the context of the case.
Before 2013, Florida was a Frye state. But in 2013, the Florida Legislature enacted legislation amending the Florida Rules of Evidence to incorporate the Daubert standard. Since then, the legislation has been the topic of much litigation concerning whether and to what it extent it was valid.
Under the separation-of-powers principles of the Florida Constitution as construed by the Florida Supreme Court, the state legislature has the authority to adopt rules of “substantive law,” but only the court itself has the ability to determine rules of procedure. The court declined, in 2017, to adopt the Daubert legislation under the court’s authority to make procedural rules, citing “constitutional concerns”—in particular, fears that Daubert would “undermin[e] the right to a jury trial and deny access to the courts.” The upshot of this ruling was that the Legislature’s action could stand only if the adoption of Daubert was a “substantive” change that the Legislature was entitled to make without the Florida Supreme Court’s concurrence.
In DeLisle, the Florida Supreme Court held by a 6-3 vote that the Legislature’s attempt to adopt the Daubert standard was procedural rather than substantive, and hence unconstitutional. The DeLisle decision thus kept the Frye standard in place for litigation in Florida state courts.
Shortly after DeLisle was decided in November 2018, however, three members of the majority in the case—Justices Pariente, Lewis, and Quince—reached Florida’s judicial mandatory-retirement age and retired. We predicted that after new Republican Governor Ron DeSantis appointed replacements for these Justices, the court might either overrule DeLisle’s holding that the Legislature’s adoption of Daubert was a “procedural” change, “or, more likely, simply adopt Daubert under its own rulemaking authority.”
The court’s decision last month took the latter approach, adopting Daubert under the court’s own rulemaking authority. The decision—announced in a per curiam opinion without additional briefing or argument—explained that the “constitutional concerns” that had prompted the court to refuse to adopt Daubert in 2017 “appear unfounded.” The court noted that Daubert is the prevailing standard for expert testimony in federal courts and 36 states and that there is no sign that it has “denied parties’ rights to a jury trial and access to courts” in those court systems.
The court also held that the Daubert standard “remed[ies] deficiencies of the Frye standard”: whereas Frye excludes only novel, unaccepted scientific techniques, Daubert requires that all expert testimony be relevant and reliable, imposing more effective controls on the introduction of inappropriate testimony. And, the court noted, adopting Daubert would “create consistency between the state and federal courts” in Florida, thereby helping to “lessen forum shopping.”
The Florida Supreme Court’s ruling is welcome news for businesses that are sued in Florida state court. As the court noted, Daubert empowers trial courts to play a much more active gatekeeping role than the Frye standard, and it applies to all forms of expert testimony. The result of the decision, therefore, will be that unreliable, result-oriented expert testimony may now be excluded in Florida state courts to the same extent as in federal court—and that plaintiffs therefore will have less of an incentive to choose to litigate in state court.
One note of caution is warranted, however. The court’s opinion noted that certain other “constitutional” and “substantive concerns . . . have been raised about the amendments” adopting Daubert, but declined to address these concerns, stating that they must be “left for a proper case or controversy.” The full scope of Florida’s embrace of Daubert thus remains to be seen. But for the time being, defense counsel litigating in Florida state courts have a valuable new tool for opposing improper expert testimony.
Justices Breyer, Sotomayor, Kagan, and Ginsburg have repeatedly decried what they view as their colleagues’ inadequate respect for precedent during the Supreme Court’s October Term 2018. Justice Breyer last month wisely cautioned the Court about the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect. But Justice Kagan’s vitriolic dissent last Friday in Knick v. Township of Scott was far wide of the mark when it lambasted the Court’s decision to overrule the oft-criticized Williamson County Planning v. Hamilton Bank decision. None of the factors cited as reasons to respect precedent apply to Williamson County. Justice Kagan’s harsh language may have been designed to induce cautious justices to be more reluctant to consider overruling other precedents, but it had little relevance to the case before the Court.
How Much Should Precedent Matter?
The Supreme Court has long accepted the doctrine of stare decisis, which counsels courts in most instances to adhere to a prior decision, despite its errors. The doctrine reflects a judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.
The Court traditionally examines several factors in deciding whether to overrule a precedent that it concludes was wrongly decided. Among the factors: (1) did the precedent interpret a statute or the Constitution (the court is less likely to overturn a statutory precedent, because if the interpretation was incorrect, Congress can amend the statute); (2) the quality of the precedent’s reasoning; (3) the workability of the rule it established; (4) its consistency with other related decisions; and (5) reliance on the decision.
Writing for the Court in Knick, Chief Justice Roberts carefully considered each of those factors, and concluded, “All of these factors counsel in favor of overruling Williamson County.” Critics, of course, are entitled to take issue with Roberts’s analysis, but they cannot contend that the Court acted without considering all countervailing arguments for adhering to precedent.
The Williamson County Rule
The Fifth Amendment prohibits the government from “taking” private property without providing “just compensation.” At issue in 1985’s Williamson County was whether a property owner may sue in federal court if he believes that a local government’s regulation of his property amounts to an uncompensated taking. The Court noted that no Fifth Amendment violation can occur until the government has denied compensation, and it held that no denial has occurred even if government officials refuse compensation, so long as the property owner can seek compensation in state court.
In other words, no “taking” occurs until, after many years of litigation, the state court finally rules against the property owner. So the Court held that property owners may not sue in federal court until after they have sued and lost in state court—virtually the only class of claimants asserting violation of a federal constitutional right that is denied a federal forum.
Williamson County was heavily criticized throughout its 34-year history. Among other things, its assumption that property owners would eventually be able to bring their claims to federal court turned out to be mistaken. As the Court later determined in a 2005 decision, issue-preclusion rules bar property owners who have litigated and lost a state-law inverse-condemnation claim in state court from asserting a Takings Clause claim in federal court. Concurring with that 2005 judgment on behalf of himself and three other justices, Chief Justice Rehnquist conceded that his Williamson County opinion had not stood the test of time and recommended that the Court reconsider it.
Knick Overrules Williamson County
Friday’s Knick decision explained why Williamson County was wrongly decided. Indeed, Chief Justice Robert said that “its reasoning was exceptionally ill founded and conflicted with much of our taking jurisprudence.” But he also detailed at length why the doctrine of stare decisis did not counsel adherence to Williamson County. Chief among his reasons: as noted above, it unintentionally barred Taking Clause claimants from ever bringing their claims against local governments to federal court.
Justice Kagan’s dissent disputed the majority’s analysis, labeling the Court’s opinion a “subversion of stare decisis” and complaining that “if that is the way the majority means to proceed … we may as well not have principles about precedents at all.” But she had no real response to the undisputed evidence that Williamson County had been premised on a mistaken belief that its rule would merely delay entry into federal court, not totally bar it. The best she could come up with was that Congress could re-open the federal courthouse door by legislatively overruling normally applicable issue-preclusion rules. That’s certainly a novel principle: the Court should ignore that its erroneous interpretation of the Fifth Amendment is causing an unanticipated but acknowledged injustice for an entire class of litigants because Congress has the power to correct the injustice created by the Court. Not surprisingly, Justice Kagan cites no precedents of her own for that proposition.
Moreover, as Justice Kagan concedes, overruling Williamson County does not upset any reliance interests. Governments will not be exposed to new, unanticipated liability; they will simply face claims in a new forum. Back-tracking from her endorsement of reliance (in prior decisions for the Court) as an important factor in determining whether to adhere to precedent, she stated, “The absence of reliance is not itself a reason for overruling a decision.” But, of course, absence of reliance is only one of many reasons cited by Chief Justice Roberts for not adhering to a precedent determined by the majority to be “exceptionally ill founded.”
Are Property Rights Second-Class Constitutional Rights?
Underlying Justice Kagan’s dissent, as well as dissents in other recent Takings Clause cases, is an apparent policy judgment that property rights are not entitled to the same level of protection afforded to other rights enumerated in the Bill of Rights. That policy judgment is most evident in what she describes as a “damaging consequence” of overruling Williamson County: “it will inevitably turn even well-meaning government officials into lawbreakers.”
In the past, government officials could go about their business of imposing restrictions on private property uses, secure in the knowledge that their actions would virtually never be deemed a constitutional violation. Inverse-condemnation claims would be shunted to state court, and the worst that could happen was that the property owner would be awarded “just compensation” under state law (after years of litigation). But now, Justice Kagan laments, governments that impose property restrictions in a good-faith (but mistaken) belief that no compensation to property owners is required will be called out for having violated the Constitution.
But that lament fails to explain why Takings Clause claims should be treated any differently from claims arising under other provisions of the Constitution. Federal courts routinely determine that local governments have violated First Amendment rights when they, for example, adopt good-faith policies designed to limit permissible locations for public gatherings. They routinely hold local governments responsible for Fourth Amendment violations committed by government officials acting in good faith. There is no reason to hold governments to less exacting standards for taking private property without just compensation—unless one believes that Fifth Amendment property rights are less worthy of protection by the federal courts.
The Fifth Amendment bars the taking of private property “without just compensation.” The most natural reading of that provision is that just compensation has been denied unless it is paid roughly contemporaneously with the taking. It certainly does not contemplate that the government can delay compensation for years on end while forcing property owners to endure lengthy state-court litigation, yet still claim to have complied with the Constitution. Williamson County’s rejection of a straightforward reading of the constitutional text ignored the Court’s takings jurisprudence, proved unworkable in practice, and created no reliance interests. The decision to overrule Williamson County is no proper cause for concern among proponents of stare decisis.
Also published by Forbes.com on WLF’s contributor page.
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Good morning. I want to thank everyone for being here today to examine the use of persuasive technologies on internet platforms.
Each of our witnesses today has a great deal of expertise with respect to the use of artificial intelligence and algorithms more broadly, as well as in the more narrow context of engagement and persuasion, and brings unique perspectives to these matters.
Your participation in this important hearing is appreciated, particularly as this Committee continues its work on crafting data privacy legislation.
I’ve convened this hearing in part to inform legislation I’m developing that would require internet platforms to give consumers the option to engage with the platform without having the experience shaped by algorithms driven by user-specific data.
Internet platforms have transformed the way we communicate and interact, and they have made incredibly positive impacts on society in ways too numerous to count.
The vast majority of content on these platforms is innocuous, and at its best, it is entertaining, educational, and beneficial to the public.
However, the powerful mechanisms behind these platforms meant to enhance engagement also have the ability – or at least the potential – to influence the thoughts and behaviors of literally billions of people.
That is one reason why there is widespread unease about the power of these platforms, and why it is important for the public to better understand how these platforms use artificial intelligence and opaque algorithms to make inferences from the reams of data about us that affect behavior and influence outcomes.
Without safeguards, such as real transparency, there is a risk that some internet platforms will seek to optimize engagement to benefit their own interests, and not necessarily to benefit the consumer’s interest.
In 2013, former Google Executive Chairman, Eric Schmidt, wrote that modern technology platforms “are even more powerful than most people realize, and our future will be profoundly altered by their adoption and successfulness in societies everywhere.”
Since that time, algorithms and artificial intelligence have rapidly become an important part of our lives, largely without us even realizing it.
As online content continues to grow, large technology companies rely increasingly on AI-powered automation to select and display content that will optimize engagement.
Unfortunately, the use of artificial intelligence and algorithms to optimize engagement can have an unintended – and possibly even dangerous – downside. In April, Bloomberg reported that YouTube has spent years chasing engagement while ignoring internal calls to address toxic videos, such as vaccination conspiracies and disturbing content aimed at children.
Earlier this month, the New York Times reported that YouTube’s automated recommendation system was found to be automatically playing a video of children playing in their backyard pool to other users who had watched sexually themed content.
That is truly troubling, and it indicates the real risks in a system that relies on algorithms and artificial intelligence to optimize for engagement.
And these are not isolated examples.
For instance, some have suggested that the so-called “filter bubble” created by social media platforms like Facebook may contribute to our political polarization by encapsulating users within their own comfort zones or echo chambers.
Congress has a role to play in ensuring companies have the freedom to innovate, but in a way that keeps consumers’ interests and wellbeing at the forefront of their progress.
While there must be a healthy dose of personal responsibility when users participate in seemingly free online services, companies should also provide greater transparency about how exactly the content we see is being filtered.
Consumers should have the option to engage with a platform without being manipulated by algorithms powered by their own personal data – especially if those algorithms are opaque to the average user.
We are convening this hearing in part to examine whether algorithmic explanation and transparency are policy options Congress should be considering.
Ultimately, my hope is that at this hearing today, we are able to better understand how internet platforms use algorithms, artificial intelligence, and machine learning to influence outcomes.
We have a very distinguished panel before us.
Today, we are joined by Tristan Harris, the co-founder of the Center for Humane Technology, Ms. Maggie Stanphill, the director of Google’s User Experience, Dr. Stephen Wolfram, founder of Wolfram Research, and Ms. Rashida Richardson, the director of policy research at the AI Now Institute.
Thank you again for your participation on this important topic.
I now recognize Ranking Member Schatz for any opening remarks he may have.
The Committee on Small Business Subcommittee on Contracting and Infrastructure will meet for a hearing titled, “Broadband Mapping: Small Carrier Perspectives on a Path Forward.” The hearing is scheduled to begin at 10:00 A.M. on Tuesday, June 25, 2019 in Room 2360 of the Rayburn House Office Building.
Access to reliable high speed broadband is a critical issue for small businesses, especially in rural communities that are still unserved. However, more accurate broadband maps are needed to direct federal funds to small rural carriers who seek to serve the most remote parts of America. Improved granularity and an opportunity for communities to challenge the accuracy of broadband maps are needed to build broadband networks out to the 19 million Americans on the dark side of the digital divide. At the hearing, Members will hear from a diverse group of small rural carriers about the current challenges of broadband mapping and explore ways that the federal government and private sector can work together to collect more accurate broadband coverage data.To view a livestream of the hearing, please click here.
Mr. Tim Donovan
Senior Vice President, Legislative Affairs
Competitive Carriers Association
Mr. Dan Stelpflug
Director, Operations, Engineering & Technology
Allamakee Clayton Electric Cooperative
*Testifying on behalf of the National Rural Electric Cooperative Association
Ms. Beth Osler
Director, Customer and Industry Relations
*Testifying on behalf of the National Telecommunications Cooperative Association
Mr. Jason Hendricks
Chief Regulatory Officer
*Testifying on behalf of the Western Telecommunications Alliance —Advocates for Rural Broadband
I am pleased to convene the Senate Subcommittee on Transportation and Safety for our hearing today titled “Examining Technological Innovations in Transportation.”
Everyone here today knows that technology is increasingly changing how we work, stay in contact with friends and family, and go about our daily lives. The transportation sector is no exception.
Technology is already changing how we move people and goods across this country. And there is potential for new technology to improve safety, efficiency, and mobility across our surface transportation system. But with great potential comes challenges. The process of adopting new technologies, especially across a complex system like the U.S. transportation network, can come in fits and starts.
Today the subcommittee has an opportunity to learn about the potential new technologies that can be offered, and the challenges and changes that could come from their adoption. As members of this subcommittee, and Congress more broadly, are debating and considering legislation to reauthorize the FAST Act, it is important to understand innovations within the transportation system already happening on the ground.
This is by no means the first time Congress has debated new technologies in transportation. The FAST Act added intelligent transportation systems technology as eligible activities under several federal-aid funding programs. It also established new programs, such as the Advanced Transportation and Congestion Management Technologies Deployment program, which provides grants to states to deploy large scale transportation technologies.
I was pleased to see the Nebraska Department of Transportation (DOT), working with the Wyoming and Utah departments of transportation, receive a $2.8 million Advanced Transportation and Congestion Management Technologies grant this April. Nebraska’s innovative project will incorporate sensors along I-80 to support Nebraska DOT’s understanding and ability to respond to traffic and weather conditions. Additionally, recognizing that traffic and weather don’t correspond to state boundaries, this project will support and enable the sharing of road condition information between Nebraska, Wyoming, and Utah. I look forward to hearing more about this and similar projects.
Just as federal, state, and local governments could improve infrastructure, traffic flow, and safety by adopting new technologies, the private sector also is looking to technology for improvements. Innovations like digital freight matching and visibility could improve the management of available resources, resulting in more efficient uses of our current infrastructure. Blockchain also has the capacity to heighten efficiencies and optimize costs for transportation and logistics. Blockchain-powered smart contracts offer the potential to better enforce conditions and validate data through the entire supply chain – improving vehicle fleet and freight tracking, capacity monitoring, platooning, on-time delivery, payment management, and regulatory compliance.
However, the benefits from new technologies are not a foregone conclusion. Technology that is adopted today may look very different 10 years from now. Today’s hearing gives us a chance to understand what technologies are available today, their potential for tomorrow, and the obstacles that need to be overcome along the way. It also provides us an opportunity to consider what role Congress should have in technology development and deployment as we consider a reauthorization of the FAST Act.
We have several witnesses before the committee today that can speak directly about the current and future deployment of transportation technologies. I am grateful to all of the witnesses for their willingness to travel to participate in this hearing. I am particularly pleased to have Steve Ingracia from the Nebraska DOT here to talk about the exciting work happening in our state.
I look forward to testimony from our witnesses.
I would now like to invite my colleague, Senator Duckworth, to offer her opening remarks.
“The Due Process Clause imposes strict limits on the authority of a state court to exercise personal jurisdiction over out-of-state defendants. Pennsylvania courts have repeatedly displayed their unwillingness to enforce those limits. The Pennsylvania Supreme Court ought to tell lower courts within the Commonwealth that they are no longer permitted to ignore constitutional limits on their authority.”
—Richard Samp, WLF Chief Counsel
Click here for WLF’s brief.
WASHINGTON, DC—Washington Legal Foundation (WLF) on June 21 urged the Pennsylvania Supreme Court to restrict the personal jurisdiction of state courts over nonresident defendants to cases in which the plaintiff’s claims are directly related to Pennsylvania. In an amicus curiae brief filed in Hammons v. Ethicon, Inc., WLF argues that lower courts in Pennsylvania are inappropriately asserting nationwide jurisdiction over claims against nonresident businesses where the claims bear no relation to Pennsylvania.
The case involves an Indiana woman who claims to have suffered an injury when her Indiana doctor, acting in Indiana, implanted a medical device to treat a prolapsed bladder. She sued the device manufacturer (a New Jersey-based company), claiming that the device was defectively designed and that the manufacturer provided inadequate health warnings to her and her doctor.
In several landmark decisions issued in the past five years, the U.S. Supreme Court has broadly construed the constitutional rights of defendants not to be haled into courts in States where they do not reside. The High Court limited such suits to instances in which the plaintiff’s claim arises out of the defendant’s activities in the forum state. But the lower Pennsylvania courts have interpreted “arises out of” very broadly. Citing the defendant’s activities in the State, they held in this case that the Indiana plaintiff’s claims are sufficiently related to Pennsylvania, even though those activities are unconnected to the plaintiff’s claims.
A part of the defendant’s manufacturing process occurs in Pennsylvania. But as WLF points out in its brief, the plaintiff does not argue that her injury arose from some defect in the manufacturing process. Rather, she faults only the product design (which was undertaken in New Jersey) and the adequacy of warnings (which were provided in Indiana). WLF argues that the U.S. Supreme Court has explicitly rejected basing personal jurisdiction on in-state activity unconnected to the plaintiff’s claims.
Celebrating its 42nd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.
Before today, only one category of individuals claiming a violation of their constitutional rights was required to assert their claims in state rather than federal court: those asserting a takings claim for just compensation under the Fifth Amendment against the government. Such claimants rarely win in state court. In its decision today, the Supreme Court correctly ended this discriminatory practice.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—The U.S. Supreme Court today overruled a 1985 precedent that prevented individuals claiming a violation of their Fifth Amendment property rights from bringing their claims in federal court. The decision was a victory for the Washington Legal Foundation (WLF), which filed an amicus curiae brief in Knick v. Township of Scott urging that the 1985 precedent conflicted with historical understandings of the Fifth Amendment’s Takings Clause. The Court agreed with WLF that the federal courts have traditionally been open to anyone asserting a violation of their constitutional rights and that there is no reason to deny that same privilege to property-rights claimants. WLF’s brief was joined by the Allied Educational Foundation.
The plaintiff, Rose Mary Knick, owns 90 acres of land in Scott Township, Pennsylvania, where she and members of her family have lived since 1970. The land has never been designated as a cemetery. However, Scott Township officials recently determined that several stones on the property are the remains of 18th-century gravesites, and it has ordered Knick to provide an easement across her property to permit daily public access to the stones. Knick responded by filing suit in federal court, asserting that the easement demand violated the Fifth Amendment prohibition against the taking of private property without providing just compensation. But the lower federal courts dismissed her claim, citing Williamson County, the 1985 Supreme Court decision that requires property owners to assert such just-compensation demands in a state court.
The Supreme Court ruled that Williamson County was based on a misinterpretation of the Fifth Amendment. Williamson County concluded that the Fifth Amendment does not require state and local governments to provide “just compensation” at the same time that they take private property, and thus that no Fifth Amendment violation occurs so long as the state government allows the property owner to respond to the taking by filing a lawsuit for just compensation in state court. In today’s decision, the Court agreed with WLF that the Fifth Amendment does, in fact, require that just compensation be paid contemporaneously with the taking, and thus that the uncompensated taking of private property immediately gives rise to a constitutional violation that can be asserted in federal court. The Court noted that requiring property owners to file their claims initially in state courts has made it extremely difficult for them ever to be heard in federal court, a result that the Court had not contemplated when it issued Williamson County in 1985.
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Cantwell, Colleagues Press Uber, Lyft for Information over Continued Use of Vehicles with Open Safety Recalls
U.S. Senator Maria Cantwell, Ranking Member of the Senate Committee on Commerce, Science, and Transportation, led a letter with Senators Amy Klobuchar (D-MN), Ed Markey (D-MA), and Richard Blumenthal (D-CT) to press the CEOs of Uber Technologies, Inc. (Uber) and Lyft, Inc. (Lyft) for information over the continued use of vehicles with open safety recalls.
“We write to express concern regarding the use of vehicles registered to Uber and Lyft drivers with open safety recalls,” the senators wrote. “To offer clarity to the millions of Americans who use your ride-sharing technology applications, we ask that you provide information on your companies’ vehicle safety and inspection requirements, as well as what steps you will take to inform passengers of vehicle recalls and improve your safety procedures.”
Approximately 36% of Americans have used a ride-sharing application. According to a recent Consumer Reports review of vehicle safety records in New York City and the Seattle area, 1 out of every 6 vehicles registered to Uber and Lyft drivers have an unfixed safety recall, including defective airbags, and some vehicles have a significant number of open safety recalls, including vehicles with at least five unfixed recalls.
“Given that Congress has sought to improve the vehicle safety recall process, including by prohibiting companies from renting unrepaired recalled vehicles to consumers, we believe consumers should be similarly protected in the ride-sharing context and deserve to know when they are riding in a vehicle that has an unfixed safety recall,” the senators continued.
The full text of the letter can be found below:
Dear Mr. Khosrowshahi and Mr. Green:
We write to express concern regarding the use of vehicles registered to Uber and Lyft drivers with open safety recalls. To offer clarity to the millions of Americans who use your ride-sharing technology applications, we ask that you provide information on your companies’ vehicle safety and inspection requirements, as well as what steps you will take to inform passengers of vehicle recalls and improve your safety procedures.
Approximately 36% of Americans, including 51% of those between the ages of 18-29, have used a ride-sharing application. Together, Uber and Lyft make up about 98% of the ride-share marketplace. According to a recent review of vehicle safety records in New York City and the Seattle area conducted by Consumer Reports, 1 out of 6 vehicles registered to Uber and Lyft drivers have an unfixed safety recall, including defective airbags, and some vehicles have a significant number of open safety recalls, including vehicles with at least five unfixed recalls.
Given that Congress has sought to improve the vehicle safety recall process, including by prohibiting companies from renting unrepaired recalled vehicles to consumers, we believe consumers should be similarly protected in the ride-sharing context and deserve to know when they are riding in a vehicle that has an unfixed safety recall. While we understand that both Uber and Lyft have taken steps to identify recalled vehicles and may waitlist certain vehicles that have been labeled as ‘Do Not Drive’ from the manufacturer or the National Highway Traffic Safety Administration (NHTSA), the onus primarily remains on drivers to ensure that open recalls are addressed. In order to identify the steps that Uber and Lyft will take to address this issue and ensure consumers’ safety, we respectfully request that you respond to the following questions:
(1) Does your company have an estimate of the number of unrepaired vehicles affected by a federal recall in each state that may be used by your drivers? Please provide a list of all such vehicles, their state of registration, and the recall that may be unaddressed.
(2) Does your company have a periodic safety verification process that reviews whether vehicles are affected by a safety recall? If so, please provide the details of such process.
(3) What is your company’s process for helping drivers address open safety recalls? Please describe such process in detail.
(4) Please describe how the company determines whether a car subject to a recall may remain on the ride-share application.
(5) Does your company notify consumers if they are riding in a vehicle with open safety recalls? If so, please describe the information presented to consumers, when such information is provided, and the format of the disclosure.
(6) What additional actions will your company take to improve your vehicle safety and inspection requirements regarding recalls?
Thank you for your prompt attention to this matter. We request a response to these questions by July 17, 2019. Please contact April_Jones@klobuchar.senate.gov with any questions regarding this request.
Ranking Member Cantwell to Consumer Product Safety Commission: Protect Our Families from Dangerous Products
Today, the Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection hosted all five commissioners of the Consumer Product Safety Commission (CPSC) for an oversight hearing.
“The Consumer Product Safety Commission is a small federal agency with a huge mission: It is to be the cop on the beat when protecting consumers from potentially dangerous products,” said Senator Cantwell, the ranking member of the U.S. Senate Committee on Commerce, Science, and Transportation. “Time and time again, though, I’ve seen a pattern with this commission where it has deferred to the industry on critical product safety matters instead of being more aggressive.”
In April, Ranking Member Cantwell wrote to Acting Chairman Buerkle demanding documents about the Commission’s actions related to the BOB stroller after the Washington Post reported that Acting Chairman Buerkle may be using her position to restrict Commission staff and her fellow commissioners from doing their jobs to protect the public from dangerous products. Earlier this week, Acting Chairman Buerkle announced her intention to withdraw her nomination to lead the CPSC.
“So going forward I hope that the White House will put forth names of people to be on the commission that are going to use the authority, and put American consumers and our children first,” Ranking Member Cantwell said.