(Slip Opinion)

            Applicability of Section 410 of the Amtrak
           Reform and Accountability Act of 1997 to the
               Gateway Development Commission
New Jersey’s proposed diversion of a portion of its annual payment to Amtrak to a bridge
  project subject to the authority of the Gateway Development Commission, an interstate
  entity established by New York and New Jersey, would violate section 410 of the
  Amtrak Reform and Accountability Act of 1997, which prohibits States from carrying
  out an interstate compact by using state or federal funds made available for Amtrak.

                                                                     February 13, 2020

          MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                DEPARTMENT OF TRANSPORTATION

   You have asked whether the interstate compact provision in the Amtrak
Reform and Accountability Act of 1997, Pub. L. No. 105-134, § 410, 111
Stat. 2570, 2587–88 (“Amtrak Reform Act”), would prohibit New Jersey
from diverting a portion of its annual payment to Amtrak to a bridge
project subject to the authority of the Gateway Development Commission
(“GDC” or “Commission”), which is an entity established by New York
and New Jersey. This memorandum memorializes our prior conclusion
that the proposed redirection of funds would have violated the terms of
the Amtrak Reform Act. Section 410 of the Act prohibits States from
carrying out an interstate compact by using state or federal funds made
available for Amtrak. We concluded that the two States entered into an
interstate compact to form the GDC and that the proposed diversion was
therefore subject to the limitations of the Amtrak Reform Act.
   New York and New Jersey created the GDC by passing reciprocal leg-
islation last year. See Gateway Development Commission Act, 2019 N.J.
Sess. Law Serv. ch. 195 (West) (July 22, 2019) (“N.J. Act”); Gateway
Development Commission Act, 2019 N.Y. Sess. Laws ch. 108 (McKin-
ney’s) (July 22, 2019) (“N.Y. Act”). The States established the GDC to
“facilitate” the expansion and renovation of rail lines in the Northeast
Corridor (“NEC”), the rail system running from the District of Columbia
through Massachusetts. See N.J. Act §§ 2, 4(a); N.Y. Act § 2, ¶ 1; 49
U.S.C. § 24905(a), (c)(1). In so doing, the States empowered the GDC to
exert control over the use of funds committed to projects it is authorized




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                 Opinions of the Office of Legal Counsel in Volume 44

to facilitate. 1 See N.J. Act § 4; N.Y. Act § 3. Each State conditioned its
legislation on the other State’s enactment of legislation with “identical
effect.” See N.J. Act § 30(a); N.Y. Act § 10(a). Both laws further provid-
ed that each State must receive the “concurre[nce]” of the other State to
amend or repeal its laws. N.J. Act § 25; N.Y. Act § 8. Under the terms of
that legislation, each State has three representatives on the Commission;
Amtrak also holds one seat.
   In 2019, New Jersey Transit (“NJT”), the State’s public transportation
agency, requested a variance that would have allowed it to meet its finan-
cial obligations to an NEC bridge project subject to the GDC’s authority
by diverting a portion of the annual baseline capital charge payments that
NJT otherwise would have owed to Amtrak. 2 See Letter for Steven A.
Engel, Assistant Attorney General, Office of Legal Counsel, from Steven
G. Bradbury, General Counsel, U.S. Department of Transportation at 1
(Oct. 1, 2019) (“Bradbury Letter”). The variance would have required the
approval of the Northeast Corridor Commission (“NEC Commission”),
see

federal-state body established by Congress to promote
rail planning and cooperation across the NEC, see 49 U.S.C. § 24905.
The NEC Commission has adopted a Cost Allocation Policy, which per-
mits rail owners and operators to request variances from the Commis-
sion’s requirements for their baseline capital charges. See Northeast
Corridor Commuter and Intercity Rail Cost Allocation Policy § 5.5.2.1–.2
(as amended June 19, 2019) (“Cost Allocation Policy”); see also

the Passenger Rail Investment and Improvement Act of
2008’s direction to the NEC Commission “to create a cost-sharing ar-
rangement for NEC infrastructure”). Members representing the Depart-
ment of Transportation, “including the Office of the Secretary, the Federal
Railroad Administration, and the Federal Transit Administration,” serve

   1  The state laws define “facilitate” to mean “the planning, designing, financing, acqui-
sition, development, redevelopment, expansion, construction, reconstruction, replacement,
approval of works, lease, leaseback, licensing, consigning, asset management, optimiza-
tion, rehabilitation, repair, alteration, improvement, extension, management, ownership,
use and effectuation of the matters described in [each of the acts].” N.J. Act § 3; N.Y. Act
§ 2, ¶ 2(e).
    2 As part of phase one of the “passenger rail transportation project between Penn Sta-

tion, Newark, New Jersey and Penn Station, New York, New York,” referred to as the
“Gateway Program,” the bridge project is a component of the “Project” subject to the
GDC’s authority under the legislation enacted by the States. See N.J. Act § 3; N.Y. Act
§ 2, ¶ 2(h)(i).

                                             2
       Applicability of Section 410 of the Amtrak Reform and Accountability Act

on the NEC Commission, 49 U.S.C. § 24905(a)(1)(B), and thus were
charged with considering whether the requested variance was permissible.
   In the Amtrak Reform Act, Congress “grant[ed] consent to States with
an interest in . . . intercity passenger rail service . . . to enter into interstate
compacts to promote the provision of the service,” including by retaining
existing services, commencing new services, and performing capital
improvements. Amtrak Reform Act § 410(a) (codified at 49 U.S.C.
§ 24101 note). While authorizing the compacts to facilitate the use of
certain federal and state funds for intercity passenger rail service, Con-
gress imposed a restriction to protect funding for Amtrak. Under the terms
of the statute, “[a]n interstate compact established by States under sub–
section (a) may provide that, in order to carry out the compact, the States
may . . . use any Federal or State funds made available for intercity
passenger rail service (except funds made available for Amtrak).”

added). The question therefore was whether the
GDC was created by an “interstate compact,” and if so, whether NJT’s
proposed variance would have diverted “funds made available for
Amtrak” to carry out a rail service project subject to the GDC’s authority.
   The Amtrak Reform Act does not define the phrase “interstate com-
pact,” but the term “compact” has significance under the Compact Clause
of the Constitution, which provides that “[n]o State shall, without the
Consent of Congress, . . . enter into any Agreement or Compact with
another State.” U.S. Const. art. I, § 10, cl. 3. Where a statute employs a
term with “a well-known meaning . . . in the law of this country,” we
presume that Congress used the words “in that sense unless the context
compels to the contrary.” Standard Oil Co. of N.J. v. United States, 

, 59 (1911); see also U.S. Steel Corp. v. Multistate Tax Comm’n,

, 461–62 (1978) (positing that “the Framers used the words
‘treaty,’ ‘compact,’ and ‘agreement’ as terms of art, for which no explana-
tion was required”). 3 Here, the words of the statute itself confirm that

   3 See also Neder v. United States, 

, 21 (1999) (“[W]here Congress uses
terms that have accumulated settled meaning under . . . the common law, a court must
infer, unless the statute otherwise dictates, that Congress means to incorporate the estab-
lished meaning of these terms.” (internal quotation marks omitted)); cf. Steele v. United
States, 

, 507 (1925) (noting that the Court interprets “officer of the United
States” in a statute in light of its constitutional meaning unless relevant context indicates
otherwise); United States v. Smith, 

, 531–32 (1888) (interpreting a statutory
reference to “public officers” based upon the constitutional meaning of “officer[],” U.S.
Const. art. II, § 2, cl. 2); United States v. Mouat, 

, 306–07 (1888) (relying on

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                Opinions of the Office of Legal Counsel in Volume 44

Congress has employed the term “[c]ompact” in its constitutional sense.
Section 410(a) is entitled, “Consent to Compacts,” and the statute pro-
vides that “Congress grants consent to States . . . to enter into interstate
compacts” according to its terms. Amtrak Reform Act § 410(a). Plainly,
Congress understood the statute to be a grant of the consent that Article I,
Section 10, Clause 3 of the Constitution requires for States to enter into
“Compact[s]” with each other.
   The Supreme Court has held that not every interstate agreement consti-
tutes an “Agreement or Compact” subject to the Compact Clause. See
Virginia v. Tennessee, 

, 519 (1893). According to the Court,
an agreement falls within the scope of the Clause only if it “tend[s] to the
increase of political power in the states, which may encroach upon or
interfere with the just supremacy of the United States.”

the Court has explained, “is one of potential, rather than actual,
impact upon federal supremacy.” Multistate Tax 

. Under these precedents, “[i]nterstate agreements interfere with
federal power . . . if: (1) they involve a subject matter which the Congress
is competent to regulate . . . and (2) they purport to impose some legal
obligation or disability” on state or federal governments or private parties.
Applicability of the Compact Clause to Use of Multiple State Entities
Under the Water Resources Planning Act, 4B Op. O.L.C. 828, 830–31
(1980) (“Applicability of the Compact Clause”) (citing Multistate Tax

–71; Wharton v. Wise, 

, 171 (1894)).
   The Court has also held that Congress’s decision to authorize an inter-
state agreement on a subject matter that is within the scope of federal
legislative authority would itself suffice to bring the agreement within the
Compact Clause due to its inherent potential to impact federal supremacy.
See Cuyler v. Adams, 

, 440–41 (1981) (holding that “where
Congress has authorized the States to enter into a cooperative agreement,
and where the subject matter of that agreement is an appropriate subject
for congressional legislation, the consent of Congress transforms the
States’ agreement into federal law under the Compact Clause”); see also
Wash. Metro. Area Transit Auth. v. One Parcel of Land in Montgomery
Cty., 

, 1317 n.9 (4th Cir. 1983) (suggesting that, even if a
state agreement would not independently qualify as an Article I “Com-
pact,” congressional consent turns a state agreement touching on an area

the constitutional definition of “Officers of the United States” when interpreting the
statutory phrase “officers of the navy”).

                                          4
     Applicability of Section 410 of the Amtrak Reform and Accountability Act

of Congress’s legislative power into federal law). An agreement between
two or more States may therefore constitute an interstate compact for
constitutional purposes where it has been expressly authorized by an act
falling within the appropriate scope of congressional authority.
   Applying these precedents, we concluded that New York and New Jer-
sey entered into an interstate agreement subject to the Compact Clause by
enacting the reciprocal state laws establishing the GDC. The GDC has
“several of the classic indicia of a compact,” including the existence of a
“joint organization or body” with regulatory authority, the inability of
each State to “modify or repeal [the compact] unilaterally,” and interstate
“reciprocation.” Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Reserve
Sys., 

, 175–76 (1985). The two States established the GDC as
a governmental body, for public purposes. The GDC exercises govern-
mental authority—it acts as a coordinating agency for federal, state, and
private funding, and it has authority to enter into binding contracts with
federal, state, and private entities; to acquire property for the projects,
including through eminent domain; and to levy tolls and fees payable by
project users. See N.J. Act § 4(a); N.Y. Act § 2, ¶ 1; see also N.J. Act
§§ 4(a)(1)–(6), 7, 8; N.Y. Act § 2, ¶¶ 3, 6, 7. Each State further obligated
itself to commit funds to rail projects that the GDC is authorized to facili-
tate. N.J. Act § 20; N.Y. Act § 2, ¶ 19.
   In addition, while the two States did not sign a formal writing to em-
body their agreement, they did much the same thing by enacting recipro-
cal laws, on the same day, that were conditioned upon the other State’s
approval of a law with identical effect. N.J. Act § 30(a); N.Y. Act § 10(a);
see also Multistate Tax 

(“Agreements effected
through reciprocal legislation may present opportunities for enhancement
of state power at the expense of the federal supremacy similar to the
threats inherent in a more formalized ‘compact.’”). The state laws ex-
pressly require that each State must receive the “concurre[nce]” of the
other State to amend or repeal its own law. N.J. Act § 25; N.Y. Act § 8.
   The two States not only entered into an interstate agreement, but the
agreement is one with the potential to encroach on “federal supremacy,”
even beyond the agreement’s mere connection to a subject matter within
the scope of Congress’s constitutional authority to legislate. See Multi-
state Tax 

–70; Virginia v. 

. The GDC laws “impose some legal obligation or disability” on the
State governments related to the regulation of rail operations. Applicabil-
ity of the Compact Clause, 4B Op. O.L.C. at 830–31. There is no question
                                        5
                 Opinions of the Office of Legal Counsel in Volume 44

that Congress is “competent to regulate” the field of interstate rail opera-
tions.

Act itself recognizes that “intercity rail
passenger service is an essential component of a national intermodal
passenger transportation system.” Amtrak Reform Act § 2. In addition,
the compact imposes “legal obligation[s] or disabilit[ies]” on the States by
requiring them to fund the Commission’s projects, empowering the Com-
mission to exercise regulatory powers across state lines, and requiring the
States to engage in “joint . . . operation[s]” that involve interstate rail
operations within the scope of federal legislative power. See Applicability
of the Compact Clause, 4B Op. O.L.C. at 831. 4
   The proposed variance demonstrated that the GDC’s authority may di-
rectly impinge upon federal equities. New Jersey had proposed to meet its
financial obligations for a bridge project subject to the GDC’s authority
by diverting funds from Amtrak, and as you explained, such a diversion,
if permitted, would have decreased Amtrak’s available “good repair”
funds, which could have created a shortfall requiring replenishment from
other federal or state sources. See Bradbury Letter at 1, 3; Amtrak-NJT
BCC Variance Request for Portal North Bridge, Resolution 2019-R-##
(May 16, 2019) (“Draft Variance Request”) (proposing a draft NEC
Commission resolution). Accordingly, we believe that the States’ recipro-
cal laws establishing the GDC constitute an interstate compact under the
Compact Clause.
   Under Supreme Court precedent, the States’ reciprocal laws further
qualify as an interstate compact by virtue of Congress’s express authori-
zation of the formation of “interstate compacts” promoting intercity


   4 In these respects, the GDC is quite different from the multistate administrative bodies

that the Supreme Court has held to stand outside the Compact Clause. See Multistate Tax

–72; New York v. O’Neill, 

, 11 (1959) (“The Constitu-
tion of the United States does not preclude resourcefulness of relationships between States
on matters as to which there is no grant of power to Congress and as to which the range of
authority restricted within an individual State is inadequate.”). In Multistate Tax Commis-
sion, for instance, the Court held that the States could establish such a body, even absent
congressional consent, where the commission lacked any “delegation of sovereign
power,” could issue only “advisory” regulations, could be “withdraw[n] [from] at any
time,” and did not otherwise intrude on federal 

, 473–76. By
contrast here, as we have explained, the GDC exercises delegated state authority to take
binding action across state lines, such as condemning property and levying tolls, and the
reciprocal agreement occupies a field—interstate rail transit—that falls directly within
Congress’s legislative purview.

                                             6
      Applicability of Section 410 of the Amtrak Reform and Accountability Act

passenger rail service. See Amtrak Reform Act § 410(a). An agreement
may qualify as an interstate compact where Congress has consented to it
by “authorizing joint state action in advance” and the matter is “an appro-
priate subject for congressional legislation.” 

–41.
The Amtrak Reform Act here provides express consent to New York and
New Jersey to enter into a compact to provide intercity rail services, and
that is plainly an appropriate subject for congressional legislation under
the Commerce Clause, U.S. Const. art. I, § 8, cl. 3 (“The Congress shall
have Power . . . [t]o regulate Commerce . . . among the several States[.]”).
Accordingly, even if the state laws establishing the GDC did not embody
a potential intrusion on federal sovereignty, the federal law authorizing
the agreement should itself be sufficient to bring it within the scope of the
Compact Clause.
   Having determined that the States entered into an interstate compact,
we then considered whether NJT’s proposal to divert funds that otherwise
would have gone to Amtrak would have violated the terms of Congress’s
consent to that compact. In the Amtrak Reform Act, Congress authorized
States to “use any Federal or State funds made available for intercity
passenger rail service (except funds made available for Amtrak ).” Amtrak
Reform Act § 410(b)(2) (emphasis added); see generally 

–40 (Congress may condition its consent for compacts “on the
States’ compliance with specified conditions”). Consequently, NJT may
not use any federal or state “funds made available for Amtrak” to fulfill
its alternate funding obligations for projects that the GDC is authorized to
facilitate.
   We believe that NJT’s proposed variance would have constituted a di-
version of state “funds made available for Amtrak.” Federal appropria-
tions law speaks of funds being “made available” when they have been
appropriated to be spent by a government entity for an authorized pur-
pose, during an authorized period of time. See, e.g., 3 Government Ac-
countability Office, Principles of Federal Appropriations Law 3-9 (4th
ed. 2017). The Amtrak Reform Act, however, does not apply simply to
federal funds, but also to state funds, and the statute is specifically intend-
ed to regulate how the States make funding decisions in connection with
interstate compacts relating to rail service. Accordingly, we do not believe
that funds may be viewed as being “made available” for Amtrak only
when Congress has appropriated them for that purpose as a matter of
federal appropriations law.


                                         7
              Opinions of the Office of Legal Counsel in Volume 44

   Instead, we think that the question whether state funds have been
“made available” should turn on the ordinary meaning of the phrase,
which refers to funds that would otherwise be provided to Amtrak. See
1 Oxford English Dictionary 812 (2d ed. 1989) (“available”: “capable of
being made use of, at one’s disposal, within one’s reach”); Webster’s
Third New International Dictionary 150 (1993) (“available”: “capable of
use for the accomplishment of a purpose; immediately utilizable”; “that is
accessible or may be obtained . . . : at disposal, esp. for sale or utiliza-
tion”). The Fifth Circuit approached the phrase in a similar way in con-
nection with the Individuals with Disabilities Education Act (“IDEA”),
see IDEA Amendments for 1997, Pub. L. No. 105-17, § 101, 111 Stat. 37,
68 (codified at 20 U.S.C. § 1412(a)(18)(A)), which conditions federal
funding on a prohibition against a State’s reducing the amount of state
financial support “made available” for special education and related
services. See Texas Educ. Agency v. U.S. Dep’t of Educ., 

,
132–33 (5th Cir. 2018). The court accepted that the phrase referred to
funds that were “capable of being used, not actually used,”

that the State had breached that condition by appropriating fewer
funds for that purpose in that year than the prior one

   Where a State has committed under relevant agreements to make future
payments to Amtrak, under federal law or otherwise, we believe that those
funds have been “made available” for Amtrak. If funds were “made avail-
able” to Amtrak only when the state funds had been actually expended, or
otherwise transferred to Amtrak, then the prohibition on state use of funds
“made available for Amtrak” would have little effect, because such
amounts that had already been transferred to Amtrak could hardly be
diverted.
   Under this standard, New Jersey’s assumption of funding obligations to
Amtrak “made [those funds] available for Amtrak” within the meaning of
the Amtrak Reform Act. NJT’s underlying obligation to Amtrak resulted
from the NEC’s Cost Allocation Policy, a congressionally mandated
“policy for determining and allocating costs, revenues, and compensation
for [NEC] commuter rail passenger transportation.” See 49 U.S.C.
§ 24905(c)(1)(A). That Policy obligated New Jersey, as a participant in
the NEC Commission, to make certain defined capital contributions. See
Cost Allocation Policy § 1.6.1–.2. The Policy set requirements for the
prioritization of baseline capital charges, which the NEC Commission
calculates annually for each participant. See

recog-
nized that this prioritization formula would, in the absence of a variance,

                                       8
     Applicability of Section 410 of the Amtrak Reform and Accountability Act

require that the NJT funds at issue be provided “to Amtrak.” See Memo-
randum for the Northeast Corridor Commission, from Joseph Quinty, NJ
Transit, Re: BCC Variance Request at 1 (May 16, 2019) (“Quinty Memo-
randum”). The proposed variance would have enabled NJT to divert a
portion of its payments set aside for NEC-related capital costs to pay
down a portion of NJT’s obligations to the aforementioned bridge project,
ranging from $16 to $20 million per year, covering the period from 2019
through 2033. Id.; see also Portal North Bridge Variance Request at 1
(updated May 16, 2019) (“Variance Request Form”) (explaining that the
requested variance covered a fifteen-year period and included a $20
million reduction—or credit—applied to NJT’s annual baseline capital
charge obligation to Amtrak for fiscal years 2019 through 2029, followed
by a $19 million credit for fiscal year 2030, reduced by $1 million annual-
ly through fiscal year 2033). Because NJT’s request would have reduced
the funds provided to Amtrak, we believe that the proposed variance
would have presented precisely the kind of diversion prohibited by the
Amtrak Reform Act.
   We see two possible counterarguments, but we do not view either to be
persuasive. First, one could argue that the NEC Commission’s approval of
a variance from the Cost Allocation Policy itself would reduce the amount
of funds that NJT would be obliged to pay to Amtrak in the future. Under
this reasoning, New Jersey’s redirection of resources would not in fact
reduce any funds “made available” to Amtrak; those reductions would
arise solely from the discretionary decision by the NEC Commission. We
think, however, that this argument ignores the fact that it was New Jersey
itself that had requested a variance from its obligations for the purpose of
meeting its new funding commitments under the GDC laws for the bridge
project. Because the Amtrak Reform Act prohibits a State from entering
into an interstate agreement that will take funds away from Amtrak, we
think it similarly applies to prevent New Jersey from making a variance
request to the NEC Commission that would have the same effect.
   Second, because NJT’s variance proposal addressed funding over a fif-
teen-year period, it could be said that the request concerned the projected
expenditure of funds, and not simply funds that have already been “made
available” to Amtrak. See Quinty Memorandum at 1. NJT calculated the
future funding, beyond fiscal year 2019, that Amtrak would have been
expected to receive based on NJT’s actual payment obligations for fiscal
year 2019 but a “projected . . . total payment amount” for fiscal year
2020. Variance Request Form at 1 (emphasis added). For the years fol-

                                        9
                 Opinions of the Office of Legal Counsel in Volume 44

lowing fiscal year 2020, the NEC Commission had not yet specified even
the projected annual baseline capital charge spending obligations for each
rail operator, so NJT’s variance request for fiscal years 2021 through
2033 was based on NJT’s assumptions regarding its annual future BCC
obligations. See

authorized NEC Cost
Allocation Policy bound NJT to provide an agreed-upon amount of fund-
ing to Amtrak for infrastructure repairs, before diverting funds to third-
level backlog projects such as the Portal North Bridge project. See Cost
Allocation Policy § 5.5.2.1 (prioritizing basic infrastructure projects
ahead of major backlog projects); Draft Variance Request arts. (B)–(D)
(summarizing the Cost Allocation Policy requirement and asserting that
the Portal North Bridge project is a “Major Backlog” project). Even
though only current fiscal year funds are presently “available” for
Amtrak, the future obligations are “expected,” see Cost Allocation Policy
§ 4.2.1(2)–(3), and the current policy continues to bind parties until such
time as the NEC Commission adopts a replacement policy. 5 Under the
Amtrak Reform Act, NJT could not lawfully divert funds for use on
projects the GDC is authorized to facilitate that, under the current Cost
Allocation Policy, would have been “available” to Amtrak in future years.
See, e.g.

Reform Act § 410(b)(2) (“An interstate com-
pact established by States under subsection (a) may provide that, in order
to carry out the compact, the States may . . . use any Federal or State
funds made available for intercity passenger rail service (except funds
made available for Amtrak).”). Should the NEC Commission revise its
Cost Allocation Policy in the future in a way that reduces NJT’s obliga-
tions to Amtrak, then New Jersey may have more funds to direct toward
GDC-facilitated projects. But under the Cost Allocation Policy as it
currently exists, NJT was seeking a variance that would take away funds
expected to be “made available” for Amtrak.
   NJT’s request made clear that, absent the proposed variance, Amtrak
would have been the recipient of the capital charges that NJT owes. Vari-

   5  See Cost Allocation Policy § 2.2–.4; see also

for the imposition
of financial penalties for parties who do not meet their payment obligations under the
policy); 49 U.S.C. § 24905(c)(1)–(2) (requiring “Amtrak and public authorities providing
commuter rail passenger transportation on the Northeast Corridor” to implement agree-
ments, based on cost allocation policies, that are enforceable by the Surface Transporta-
tion Board); Cost Allocation Policy app. § 1.4.2.3 (providing that “if the policy expires,
then the last year for which fully allocated costs were calculated according to the policy
. . . will be used as the basis for calculating the current-year costs”).

                                           10
       Applicability of Section 410 of the Amtrak Reform and Accountability Act

ance Request Form at 1. Because NJT had been obligated to make these
payments to Amtrak under the NEC policy’s prioritization requirements,
we believe that the funds had been “made available” for Amtrak within
the meaning of the Amtrak Reform Act. A diversion of these funds thus
would have contravened the prohibition on using “funds made available
for Amtrak” to “carry out the [interstate] compact.” Amtrak Reform Act
§ 410(b)(2). Accordingly, we advised that the NJT’s proposed variance
would have been contrary to federal law. 6

                                         JENNIFER L. MASCOTT
                                      Deputy Assistant Attorney General
                                          Office of Legal Counsel




    6 The NEC Commission ultimately approved a baseline capital charge variance that,

like NJT’s initial proposal, reprioritized baseline capital charges from basic infrastructure
to backlog projects but, unlike NJT’s proposal, stipulated that “the Gateway Development
Commission is not authorized to receive or control the funds (or credit of funds) that are
the subject” of the request. Resolution to Approve the NJT/Amtrak BCC Variance
Request for Portal North Bridge, Resolution 2019-R-18 (Sept. 12, 2019).

                                            11