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Maryland Attorney General: State can't authorize Hyperloop construction with utility permit alone

The Maryland Attorney General’s Office has called into question the state’s authority to grant permission to Tesla founder Elon Musk’s tunneling startup, The Boring Co., to build several miles of tunnels for his high-speed Hyperloop transportation system below the Baltimore-Washington Parkway.

The State Highway Administration granted a conditional utility permit on Oct. 16 to allow The Boring Co. to begin building the tunnels, if the company supplies additional information about the project and it meets all necessary requirements.

But the Hyperloop system “is not a utility under federal standards or SHA’s federally-approved utility accommodation policies,” Assistant Attorney General David Stamper wrote in a Jan. 2 letter sent to state Sen. Ed DeGrange about the project. The letter was obtained by The Baltimore Sun on Tuesday.

“A Hyperloop system does not produce, transmit, or distribute communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, or ‘other similar commodity,’” the letter said. “A Hyperloop moves people, automobiles and cargo. For this reason I do not believe SHA can authorize the construction of the proposed ‘transportation tunnels’ within the B-W Parkway right-of-way by issuing a utility permit.”

Stamper pointed out that any proposal to grant a utility easement through state-owned property “must undergo a review and comment process … and an easement agreement must be presented to and approved by the Board of Public Works.”

“An SHA utility permit, on its own, does not grant an easement,” he wrote.

The letter did not say that state and federal law prohibit the Hyperloop — just that a utility permit alone wouldn’t be sufficient authorization to build it.

“There very well may be some process for authorizing such a project,” Stamper wrote. “But I do not believe SHA can authorize construction of a Hyperloop system within the right-of-way of the B-W Parkway simply by issuing a utility permit.”

The National Park Service, which owns the highway, has begun discussions with The Boring Co. and requested more information about the proposal, Jenny Anzelmo-Sarles, a spokesperson for the National Park Service, wrote in an email.

“The NPS is considering how such a project might be authorized and what steps would be needed to assess any potential impacts to park resources,” Anzelmo-Sarles wrote.

In a statement, MDOT spokeswoman Erin Henson said: “We respectfully disagree with the advice provided by the Assistant Attorney General for the General Assembly, which was given without consulting with the Maryland Department of Transportation. Instead of 10 pages, we could have clarified in one that MDOT does have the right and responsibility to permit construction under state highway right of way, including the conditional permit issued to The Boring Company to build a concrete shell under the Baltimore-Washington Parkway. As stated months ago, the Federal Railroad Administration would provide the appropriate federal approvals for Hyperloop. Maryland should be proud to be the home for leading technology that can add one more tool to fight congestion that plagues Marylanders every day.”

DeGrange and the Boring Co. did not respond to requests for comment.

As for whether the state should regulate the safety of a Hyperloop system, the attorney general’s office deferred to the state legislature.

“The issue of whether the State should regulate the safety of Hyperloop operations is a public policy question for the General Assembly,” the letter said. “As to whether the State can regulate Hyperloop safety, the answer is not clear, given the uncertainty regarding the U.S. Department of Transportation’s legal authority to regulate in this area and the possible preemptive effects of the exercise of federal authority.”

Too many other questions remain unanswered about the technology, the tunnels and how federal regulators will view the Hyperloop, including whether it could be classified as a railroad, to give a full legal opinion of the state’s jurisdiction in regulating it, he wrote.

“I am not in a position to advise whether the [Maryland Public Service Commission] could exercise jurisdiction over the proposed Hyperloop,” Stamper said.

cmcampbell@baltsun.com

twitter.com/cmcampbell6

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